STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALVIN SHERMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 78-097RX

)

DIVISION OF PERSONNEL, ) DEPARTMENT OF ADMINISTRATION and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION )

)

Respondents. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on February 14, 1978 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Jerry Traynham, Esquire

1215 Thomasville Road

Tallahassee, Florida 32303

For Respondent: David Kerns, Esquire

Department of Administration

530 Carlton Building Tallahassee, Florida 32304

and

William P. White, Esquire

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

By petition filed January 10, 1978 Petitioner seeks to have the designation by Respondents of Department of Environmental Regulation (DER) position No.

00321 as belonging to the classification of Environmental Specialist II and the designation of DER Position No. 00046 as belonging to the classification of Environmental Specialist III held to be rules and invalid by reason of not having been promulgated pursuant to the procedures established by Chapter 120 Florida Statutes. At a pre-hearing conference

Respondent's motion to dismiss the Petition on various grounds was denied.

At the hearing two witnesses, including the Petitioner were called by the Petitioner, two witnesses were called by the Respondents and eight exhibits were admitted into evidence.

FINDINGS OF FACT

1. Calvin Sherman, Petitioner, was employed on November 19, 1974, by the Department of Pollution Control as an Environmental Specialist II (ES II) which at the time was assigned position number 00321. Immediately prior to the time Sherman was employed the position was vacant. He was interviewed for this position by an Environmental Specialist III (ES III) to which was assigned position number 00046 and who exercised some supervision over Sherman after the latter was employed.

   
   

2. In January, 1975 under a reorganization plan many functions and positions formerly held by the Department of Pollution Control were reassigned to the new Department of Environmental Regulation. During this reorganization position number 00046 to which was assigned job classification ES III became vacant and Sherman, effective January 27, 1975, was promoted to this position.

   
   

3. The job description of ES II during the time the position was held by Sherman is contained in Exhibit 1.

   
   

4. The job description of ES III during the time the position was held by Sherman is contained in Exhibit 3. Greater administrative responsibilities are required for ES III than are required for ES II and the pay per bi-weekly pay period on January 27, 1975 for ES II was $417.60 and for ES III was $540.80.

   
   

5. Petitioner testified that he performed the same duties as an ES III he had performed as an ES II, however, his Time and Attendance Record Report (Exhibit 7) do not so indicate.

   
   

6. Sherman was terminated from his employment with DER effective July 25, 1975, and contested this termination before the Career Service Commission alleging that he was a permanent employee and not subject to termination except four cause. That hearing resulted in a determination adverse to Petitioner.

   
   

7. In January, 1976 from position number 00321, position title ES II, pay grade 25, was deleted and replaced with position title, Biologist III, pay grade

1. In March, 1977 the position title for position number 00321 was changed from Biologist III, pay grade 20 to Biologist IV, pay grade 23 (Exhibit 8).

   
   

   1. Similarly, in November, 1975 from position number 00046, position title ES III, pay grade 29, was deleted and replaced with position title, Chief of Special Programs, pay grade 32 (Exhibit 8).

      
      

   2. The procedural requirements of Section 120.54, Florida Statutes prescribed for the adoption of rules were not complied with when these various position numbers were moved within DER and assigned to a particular job description and pay grade.

      
      

   3. Each position number such as 00321 and 00046 applies to one individual position only and not to a class. For example, if DER had ten ES II's each would have a different position number and in 1975 one of these ES II's, namely Calvin Sherman, filled position number 00321. When he was promoted to ES III he filled the billet authorized by position number 00046.

      
      

   4. Thus, the position number is applicable to one position or person and is assigned to one job title, description and pay grade. The ten ES II positions, for example, authorized for DER would have the same job title, description and pay grade, but each would have a different position number.

      CONCLUSIONS OF LAW

      
      

   5. The only issue for consideration in this proceeding is whether the actions by Respondents in 1974 in assigning position number 00321 and 00046 to position title ES II and ES III respectively, was a rule.

      
      

   6. Numerous issues presented by the parties in motions and arguments are not considered. These include: whether or not Petitioner performed the same functions as an ES II and ES III; whether ES II's and ES III's are different classifications and at least six months must be served in each to obtain permanent career service status; the effect of not re-promulgating the challenged "rule", if so it be, as required by Section 120.72 Florida Statutes; and the effect of Petitioner entering into and accepting the terms of his contract of employment with DER.

   7. Section 120.52(14) Florida Statutes provides: "Rule" means each agency statement of

      general applicability that implements,

      interprets or prescribes law or policy

      or describes the organization, procedure, or practice requirements of an agency

      and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal off a rule. The term does not include:

      1. Internal management memoranda which do not affect either the private interest of any person or any plan or procedure important to the public and which have

         no application outside the agency issuing the memorandum.

      2. Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to the use in connection with an agency action.

      3. The preparation or modification of:

         l. Agency budgets.

         1. Contractual provisions reached as a result of collective bargaining.

         2. Agricultural marketing orders under chapter 573 or chapter 601.

         3. Curricula by an educational unit.

         
         

   8. Various definitions in Section 110.042 Florida Statutes relating to the State Career Service Commission system are applicable here. These include:

      
      

      (2) "Position" means the work, consisting of duties and responsibilities, assigned to be performed by an officer or employee. (Emphasis added)

      * * *

      (5) "Class of positions" means all positions which are sufficiently similar as to kind

      or subject matter of work, level of difficulty or responsibilities, and qualification requirements of the work to warrant the same treatment as to title, pay range, and other personnel transactions.

      * * *

      (10) "Classification plan" means a document which formerly describes the concepts, rules and regulations and class specifications utilized in the classification and reclassification of positions in the career service.

      * * *

      1. "Authorized position" means a position included in an approved budget. In counting the number of authorized positions, part-time positions may be converted to full-time equivalents.

      2. "Established-position" means an authorized position which has been classified in accordance with a classification and

         pay plan as provided by law.

      3. "Position number" means the identification number assigned to an established position.

      
      

   9. Section 110.055 Florida Statutes provides:

      
      

      1. The personnel officer of each executive department with over 3,000 authorized positions shall have the authority and responsibility to:

         1. Classify new positions authorized by the Legislature or authorized pursuant to Sec. 216.262;

         2. Classify positions that are added in lieu of positions deleted pursuant to Sec. 216.262; and

         3. Reclassify established positions.

      
      

   10. From the definition of rule above quoted the agency's action must have general applicability for it to reach the status of a rule. Assigning position number 00321 to the classification of EST II effects only one position. It cannot perforce have general applicability. Furthermore, Chapter 110 Florida Statutes, sections of which are quoted above, establishes various definitions and requirements to be followed by agencies. These include the responsibility to prepare classification plans, to classify authorized positions and to reclassify established positions.

       
       

   11. The classification plan required by the above quoted statutory provisions is contained in Rule 22A-1.01-1.11 Florida Administrative Code. No allegation is made that this rule is in any wise invalid.

       
       

   12. Apart from the fact that the alleged rule fails to so qualify simply because it is not of general applicability, the legislature has required an identification number to be assigned to each authorized position. In carrying out this requirement Respondent, in 1974, assigned position number 00321 to the

       classification of ES II. Even if such action could be construed as having general applicability, the agency would be carrying out a specific legislative directive in so doing. To hold such action invalid because the agency had not copied or paraphrased the statute into a rule does not comport with reason and the assignment of a position number to a job title and classification is directed by, and therefore is specifically exempted under the definition of rule above quoted.

       
       

   13. From the foregoing it is concluded that designating position number 00321 as job title Environmental Specialist II and position number 00046 as job title Environmental Specialist III were not rules and promulgation in accordance with the provisions of Chapter 120 Florida Statutes was not required. It is, therefore,

ORDERED:

That the petition of Calvin Sherman to have the designation by Respondents of Department of Environmental Regulation position number 00321 as belonging to classification Environmental Specialist II and the designation of Department of Environmental Regulation position number 00046 as belonging to classification Environmental Specialist II as rules, and invalid as improperly promulgated, be dismissed.

DONE and ENTERED this 20th day of March, 1978, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Jerry Traynham, Esquire 1215 Thomasville Road

Tallahassee, Florida 32303

David Kerns, Esquire Department of Administration

530 Carlton Building Tallahassee, Florida 32304

William P. White, Esquire

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Mr. Carroll Webb Executive Director

Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 E. Gaines Street Tallahassee, Florida 32302

Docket for Case No: 78-000097RX

Orders for Case No: 78-000097RX