STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD F. MARSH, )

)

Petitioner, )

)

vs. ) CASE NO. 77-404RE

) DEPARTMENT OF ADMINISTRATION, ) STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida, on March 25, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Jay Hendrickson, Esquire

836 East Lafayette Street Tallahassee, Florida 32301

For Respondent: Mary Clark, Esquire

Office of General Counsel Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304

ISSUE PRESENTED

Validity of Emergency Rule 22 AER 76-1, Department of Administration.

This case concerns Petitioner's challenge of the validity of Emergency Rule

22 AER 76-1, Department of Administration, State of Florida, on the ground that promulgation of the rule was an invalid exercise of delegated legislative authority. The petition specifically alleges that Respondent failed to make an adequate finding that an immediate danger to the public health, safety, or welfare warranted an emergency rule, and that there existed no such immediate danger which might have necessitated enacting an emergency rule. The petition further alleges that the procedure adopted by Respondent in promulgating the emergency rule was unfair and contrary to law.

The petition was filed with the Division of Administrative Hearings on February 23, 1977, and thereafter assigned to the undersigned Hearing Officer.

Prior to final hearing herein, Petitioner propounded written interrogatories and requests for admission from Respondent. The Respondent filed a "Notice of Objection" to the said interrogatories on grounds that judicial review is exclusive as to the agency's findings of immediate danger, necessity, and procedural fairness, as provided under subsection 120.54(9)(a)3,

F.S., and that therefore the Hearing Officer has no jurisdiction over the matter. The parties stipulated that if Respondent's objection was resolved in favor of Petitioner, the interrogatories and answers submitted by Respondent thereto, together with supporting documents, would be admissible in evidence for all relevant purposes. For the reasons stated hereinafter in Conclusions of Law, it is determined that the Hearing Officer has jurisdiction in this case and, accordingly, the stipulated matters are accepted, as set forth below.

FINDINGS OF FACT

1. On April 26, 1976, the procedures for layoff of state career service employees contained in certain memoranda of the Department of Administration (DOA) and the Department of Health and Rehabilitative Services were determined to be invalid rules by a Hearing Officer of the Division of Administrative Hearings. (J. Richard Stevens v. DHRS and DOA, DOAH Case No. 75-2024R). The specific documents held to be invalid rules were Personnel, Policy and Procedure Memorandum No. 74-7, Subject: Guidelines for Preparing Layoff Procedures, issued by the DOA, and Directive No. 8.07, Dept. of HRS, Subject "Layoff and Reemployment of Personnel." The DOA procedures were effective on July 1, 1974, and implemented Rule 22A-7.10(H)(3), Florida Administrative Code. On May 25, 1976, the First District Court of Appeal denied a motion of the DOA for a stay of the Hearing Officer's Final Order (Case No. CC-101). However, the Hearing Officer granted a stay of his Final Order until June 21, 1976. On April 6, 1977, the First District Court of Appeal upheld the Final Order of the Hearing Officer in the Stevens case (Case No. CC-101,156.)

   
   

2. A 1976 amendment of subsection 110.061(2)(a), required specified layoff procedures to be developed by Respondent. (Chapter 76-116, Laws of Florida)

   
   

3. Federal standards for a merit system of personnel administration affecting all state agencies receiving federal grant-in-aid funds that were in effect in 1976 require the establishment of certain procedures for layoff of permanent state employees. (Testimony of Dean, Attachment 5 to Respondent's memorandum)

   
   

4. Respondent's personnel officers were aware that there was impending legislation to abolish some 2,000 state employee positions, effective June 30, 1976, that would require the existence of layoff criteria and procedures for orderly and fair implementation (Testimony of Dean).

   
   

5. In view of the foregoing, DOA,during the latter part of May and early June, 1976, began the process of formulating and adopting an emergency rule to cover layoff procedures. Although consideration was given to the possibility of following normal rule-making procedures, it was determined that there was insufficient time available to promulgate a rule in that manner. (Testimony of Dean)

6. Notice of the proposed emergency rule was prepared and published in the June 11, 1976, issue of the Florida Administrative Weekly. The notice stated that the rule would become effective upon filing with the Secretary of State, and that a copy could be obtained by writing to the state personnel director.

   It provided in part as follows:

   
   

   "SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE:

   
   

   Recent changes in law have cast doubt upon the proper current Career Service layoff procedure. Because numerous layoffs may be required before a permanent rule could become effective, it is essential to the

   welfare of the State that all doubt be removed by adoption of a definite procedure, both for the benefit of the State as employer and of the affected employees.

   
   

   REASONS WHY PROCEDURE USED IS FAIR UNDER THE CIRCUMSTANCES:

   
   

   The emergency rule is based on the recommendations of the Career Service Commission contained in its report of November 7, 1975, following public hearings October 23

   and 24, 1975, incorporating any applicable guidelines approved by the Secretary of Administration."

   
   

   The proposed emergency rule was placed on the agenda of the Administration Commission for June 15, 1976, and, after discussion, the rule was amended and adopted by that body. On the same date, the emergency rule was filed with the Department of State. (Composite Exhibit 1a-d, Exhibit 2)

   
   

7. By letter of June 16, 1976, Petitioner was informed by the personnel officer of the Department of Agriculture and Consumer Services that his position of Agriculture Investigator Supervisor in the Division of Animal Industry had been abolished, effective June 30, 1976, and that, in accordance with Department of Administration Emergency Rule No. 22 AER 76-1, he was being notified of the proposed action. Pursuant to that notification, Petitioner was laid off as of June 30, 1976. He thereafter filed an appeal with the Career Service Commission on July 7, 1976. (Testimony of Shelby, Exhibits 3, 4)

   
   

   CONCLUSIONS OF LAW

   
   

8. This rule challenge is brought under Section 120.56, Florida Statutes, which provides pertinently as follows:

   
   

   "(1) Any person substantially affected by a rule may seek an administrative determination of the validity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

   (2) The petition seeking an administrative determination under this section shall be in writing and shall state with particularity

   facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule..."

   
   

9. Petitioner has shown that he was substantially affected by Department of Administration Emergency Rule No. 22 AER 76-1 by virtue of the fact that he was laid off from his position as Agriculture Investigator Supervisor, Division of Animal Industry, on June 30, 1976, under procedures set forth in the rule.

   
   

10. The petition alleges that the rule was an invalid exercise of delegated legislative authority because Respondent "failed to make an adequate finding that an immediate danger to the public health, safety, or welfare warranted an emergency rule", and that there existed no such immediate danger that might have necessitated enacting an emergency rule. It further contends that the procedure adopted for promulgation of the rule was unfair and contrary to law. No facts were alleged by Petitioner to support his general allegations, but in view of Respondent's failure to attack the sufficiency of the petition in that regard, it is considered adequate for jurisdictional purposes.

    
    

11. Emergency rules are authorized under subsection 120.54(9), F.S., which provides as follows:

    
    

    "(9)(a) If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that:

    1. The procedure provides at least the procedural protection given by other statutes, the Florida Constitution, or the United States Constitution.

    2. The agency takes only that action necessary to protect the public interest under the emergency procedure.

    3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. In any event, notice of emergency rules shall be published in the first available issue of the Florida Administrative Weekly. The agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable.

       1. Rules pertaining to the public health, safety, or welfare shall include, but not be limited to, those rules pertaining to perishable agricultural commodities.

       2. An emergency rule adopted under this subsection may not be effective for a period longer than 90 days and shall not be renewable. However, the agency may take identical action

          by normal rulemaking procedures.

       3. Subject to applicable constitutional and statutory provisions, an emergency rule becomes effective immediately on filing, or at a date less than 20 days thereafter if specified in the rule, if the adopting agency finds that such effective date is necessary because of immediate danger to the public health, safety, or welfare.

       
       

12. Respondent contends that the sentence in subsection 120.54(9)(a)3, which reads: "The agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable" provides an exclusive method of testing the adequacy of those findings and that therefore a hearing officer has no jurisdiction to make such a determination. It supports this contention by pointing to the statutory provision that an emergency rule automatically expires after 90 days and that therefore an absurd result would follow by acting upon an emergency rule after it is no longer in effect. Neither of Respondent's contentions are considered to have validity. The availability of judicial review does not necessarily exclude administrative cognizance of the matter in the absence of express statutory language in that regard or an otherwise clear legislative intent. The latter has not been shown and Section 120.56, by its terms, does not so limit a hearing officer, in determining the validity of a rule. The mere fact that an emergency rule has expired by the time a hearing is requested and held on its validity does not affect a hearing officer's authority to determine the matter if the substantial interests of a petitioner were affected at the time the rule was in effect. (See State of Florida, Department of Transportation v. Pan American Construction Company, 338 So.2d 129 (Fla. 1st DCA 1976).

    
    

13. The main question for consideration is whether Respondent properly followed the procedures of subsection 120.54(9) in promulgating the emergency rule and whether, in fact, its findings of an immediate danger to the public health, safety or welfare were adequate under the circumstances. The facts show that Respondent was fully justified in promulgating the layoff rule on an emergency basis. Its prior layoff procedures had been held invalid by administrative determination and, even though that decision was under appeal, judicial resolution of the matter could not reasonably be expected prior to the need for substitute procedures. The 1976 amendment of Section 110.061(2)(a), effective June 15, 1976, mandated that specific layoff procedures be developed by the Department of Administration. Certain federal funding also hinged on the establishment of such procedures. When considered with the fact that the Respondent justifiably anticipated abolishment of a great number of employee positions by the 1976 Legislature, and that such legislation became a reality in June, there can be no question but that prompt action was required in order to carry out the task in a fair and equitable manner under precise guidelines.

    
    

14. Petitioner has not contended that the procedures utilized by Respondent in the promulgation of the rule did not follow those set out in any applicable statute or regulation. In fact, the evidence shows that Respondent adhered to the requirements of Sections 20.31(5)(b)2, 110.041(2)(e), and 110.022(1)(h), F.S., as to rule making responsibilities, and to the Department of State's Rule 1-1.020(8), F.A.C. regarding emergency rules. Proper notice of the proposed rule was duly published and the matter was discussed and acted upon at a scheduled meeting of the Administration Commission.

15. Petitioner, however, asserts that "findings" necessarily require a prior "investigation" be conducted to provide an adequate basis therefor and thus comport with constitutional due process requirements. Suffice it to say that the record herein adequately shows Respondent's belief in the need for immediate action to have been justified under the circumstances. Little, if anything, would have been gained by conducting a formal investigation into the "immediate danger" foreseen - - it was obvious that administrative chaos would result without prompt action to spell out effective layoff procedures. Additionally, the consultations on the proposed rule by Respondent's personnel officials and the consideration of the rule at a meeting of the Administration Commission were investigative in nature.

    
    

16. It is apparent that Respondent misconstrued the statutory proviso of subsection 120.54(9)(a)3 that the agency publish "...reasons for concluding that the procedure used is fair under circumstances..." The reasons published dealt with the substantive fairness of the proposed rule rather than the fairness of the procedure used to promulgate the rule. However, this defect is not considered significant because reasons were, in fact, published and that is all the statute requires. Further, it is evident that the procedures used to promulgate the rule were fair and sufficient to comply with the intent of the statute.

    
    

17. It is also true that Respondent's published findings concerning the contemplated danger necessitating the emergency rule did not spell out in detail the underlying facts giving rise to its apprehension. The findings speak only of "Recent changes in the law as casting doubt upon the proper current Career Service layoff procedures." Although it would have been desirable that the changes in the law be identified, such omission is not considered sufficiently material to warrant invalidation of the rule.

    
    

18. Based on the foregoing Findings of Fact and Conclusions of Law, the petition is denied.

DONE and ORDERED this 25th day of April, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1977.

COPIES FURNISHED:

Mary Clark, Esquire Office of General Counsel

Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304

Jay Hendrickson, Esquire 836 East Lafayette Street Tallahassee, Florida 32301

Ms. Liz Cloud Department of State

403 East Gaines Street Tallahassee, Florida 32302

Carroll Webb Executive Director

Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Docket for Case No: 77-000404RE

Orders for Case No: 77-000404RE