STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE GRANADA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1672RX

) 77-1677RX

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

FINAL ORDER

These cases came before the undersigned Hearing Officer on separate petitions filed by the same individual pursuant to Section 120.56, Florida Statutes, challenging procedures of the Career Service Commission as being invalid rules. These proceedings were consolidated and were heard on November 4, 1977, before the undersigned Hearing Officer at Tallahassee, Florida.

APPEARANCES

For Petitioner: Ben Patterson, Esquire For Respondent: David V. Kerns, Esquire

1. The Petitioner, a former Career Service employee of the Department of Community Affairs, has been pursuing an appeal in front of the Respondent Career Service Commission regarding certain aspects of his termination.

   
   

2. In these proceedings the Petitioner challenges certain practices and notices issued by the Career Service Commission as invalid rules. The first such statement is a notice issued by the Respondent Career Service Commission dealing with the eligibility for compensation and leave for state employees called as witnesses before the Career Service Commission. It is conceded by the Respondent that this notice is not consistent with Section 120.58 as recently amended. However, the Respondent stated it recognizes the deficiency in its notices and will correct the inconsistency therein. Further, the Respondent stated it would not use said notice in its future cases.

   
   

3. The other objections raised by the Petitioner relate to a prepared statement issued by the Career Service Commission at the commencement of each hearing and practices which relate there to. This statement has been identified as Exhibit A in Case No. 77-1672RX. Among other things this statement advises each party that an extract from the appellant's employment record with the agency and correspondence and documents relative to this appeal, had been furnished to members of the Commission constituting the Commission's Exhibit.

   In addition, the statement provides and recognizes the practice of the Career Service Commission to "deliberate and render its decision on this case immediately following the close of the hearing.

4. There was no dispute that the excerpts from the statement above described were descriptions of standard practice of the Career Service Commission and that they reflected the normal manner in which the Commission heard and decided appeals.

   
   

5. By virtue of having an appeal before the Respondent, Career Service Commission, the Petitioner is substantially effected by policies and practice of the Commission. None of the above practices has been adopted as a rule pursuant to Chapter 120 and, therefore, the only issue which remains in this proceeding is whether any of the above constitute "rules" as defined in Section 120.52(14), Florida Statutes. The notice of the Career Service Commission which deals with witnesses appearing before the Commission at hearings appears to have been designed to describe the requirements for witnesses at agencies for purposes of general information. The notice, while it may be characterized as an agency statement, does not appear to be the type which the Career Service Commission would use as any authority in questions which may arise concerning the appearance of witnesses. It is an attempt by the Commission to provide general information as to the statutory provisions for witnesses at Administrative Hearings. The Commission admitted at the final hearing in this cause that the notice in question has not bean revised to include recent amendments to Chapter

   120 but that it would be changed to so conform to the statute and had never been used in conflict with the statutes.

   
   

6. Considering all the above, it is the finding of the undersigned Hearing Officer that the Commission's notice with regard to witnesses is not a rule as it has not been demonstrated that the statement actually reflects the official position of the Commission or that the statement is used as authority to support the Commission's policy. Since the statement does not reflect Commission policy, it is only a notice which has been inadvertently not kept up to date.

   
   

7. The other item in dispute in this proceeding is the standard statement read at the beginning of all hearings before the Career Service Commission. This has, as noted above, been designated as Exhibit A in Case No. 77-1672RX. Unlike the notice as described, this statement does reflect the present policy of the Commission and accurately reflects their standard procedures at each

   Commission proceeding. Petitioner does not challenge the entire statement, only the parts of it which reflect the Commission's policy of receiving an extract from the employee's agency employment record as its own exhibit and the policy of the Commission in rendering a final decision immediately at the close of a hearing. A decision in this proceeding requires a determination as to whether these items are "rules" of the Commission as it has been conceded that if they are rules as defined in Chapter 120, then they are invalid since they have not been adopted pursuant to that chapter. Straughn v. O'Riordon, 338 So.2d 832 (Fla. 1975)

   
   

8. Such a decision in this case depends on whether the agency statement in question is consistent with other law or whether it is an unauthorized departure from the requirements for lawful proceedings. In other words, if the agency's statement is merely a repetition of what is authorized, then the agency has not interpreted or implemented law or policy and has merely repeated what is recognized to be the law in such a situation. However, if the agency has taken upon itself to adopt a requirement which has no foundation other than the agency's own policy and practice, then that becomes a statement which falls within the definition of a rule. Therefore, the determination as to whether the parts of Exhibit A which are challenged are invalid rules requires a determination as to whether those elements are accurate reflections of the law as it relates to Administrative Hearings.

9. The Career Service Commission, being an agency as so defined in Section

   120.52 is required to comply with the requirements of Chapter 120 in the hearings it conducts. With regard to the practice of the Commission in receiving an extract of the employee's personnel file prior to the commencement of the hearing, this Hearing Officer finds no prohibition to such a standard procedure. While it may be a better practice to permit the agency to introduce said file at the outset of the hearing as part of its initial burden of proof, the practice of the Commission appears only to be a simplified way of establishing the status of the aggrieved employee before the Commission.

   
   

10. Any appellant-employee who is pursuing an appeal before the Career Service Commission may examine and object to any part of that exhibit he deems to be inappropriate The Commission will then rule upon that objection as it would any other objection to the introduction of evidence and such a procedure complies with the procedural requirements of Chapter 120. Any employee, or for that matter any party, before the Career Service Commission cannot be prejudiced by this practice as long as they receive notice that parts of the employee's personnel file will be received as an exhibit at the outset of the proceeding. Therefore, since the practice of the Commission in receiving an excerpt from the employee's personnel file does not appear to conflict with Chapter 120, said practice is likewise not a rule.

    
    

11. The final point to be considered is the practice of the Commission to render a final order at the conclusion of the hearing. Unlike the other procedures discussed above in this order, this practice is unquestionably in conflict with parts of Chapter 120, Florida Statutes, Section 120.57(1)(b)(4) gives all parties to a hearing "an opportunity to . . . submit proposed findings of facts and orders . . . ." The Commission's practice of issuing a final order at the conclusion of the taking of testimony in a hearing denies parties the right to submit proposed findings. Such a right is a material part of a proceeding. Stuckey's of Eastman, Ga. v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976).

    
    

12. The opportunity to submit proposed findings to the agency head is a crucial aspect of a hearing conducted pursuant to Section 120.57(1) Florida Statutes. In such cases, the agency head is required to rule upon each proposed finding which then becomes a part of the entire record. Stuckey's, supra. Section 120.57(1)(b)(5) states that the record of any proceeding conducted under that subsection includes proposed findings and exceptions.

    
    

13. The Commission's practice has the net effect of denying parties the right to a complete record after the conclusion of a hearing. It is, therefore, concluded that the statement issued by the Career Service Commission and its attendant policy of issuing a final order at the conclusion of the taking of testimony is an invalid rule.

The petition challenging the practice of the Career Service Commission which requires the issuance of a final order at the conclusion of the taking of testimony is granted; in all other respects the petitions are denied.

DONE and ORDERED this 5th day of December, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ben Patterson, Esquire Patterson and Traynham 1215 Thomasville Road

Tallahassee, Florida 32303

David V. Kerns, Esquire General Counsel

Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-001672RX

Orders for Case No: 77-001672RX