STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM BLYNN and )

TERESA CRAWFORD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-500RX

)

DIVISION OF RETIREMENT, ) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in the above captioned matter, after due notice, at Tallahassee, Florida, on April 25, 1978, before the undersigned Hearing Officer. This case was consolidated for the purposes of hearing with the case of Linda J. Hart, v. Division of Retirement, Department of Administration, Case No. 78-664R.

APPEARANCES

For Petitioners: Carl J. Leib, Jr., Esquire

186 Southwest 13th Street Miami, Florida 33130

For Respondent: E. Douglas Spangler, Jr.

Assistant Division Attorney Division of Retirement

2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

ISSUE PRESENTED

Administrative determination of validity of Rule 22B-1.05(3)(b), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

FINDINGS OF FACT

1. The Petitioners have been employed with the Metro Dade County Department of Public Safety as fingerprint technicians for approximately two and one-half years. They perform identical duties in the identification section of the department and both have completed the required police officer minimum standards training. They are sworn regular deputy sheriffs and are on call to enforce the law on a twenty-four hour day basis. However, normally they work a regular shift in the identification section which primarily involves fingerprinting of individuals at that location and examination of crime scenes, vehicles, weapons and other items for latent fingerprints. They must be available to respond to emergency situations and provide assistance in disasters or cases of mass arrests. In connection with their duties, they are required to

   regularly bear a firearm and qualify periodically in firearms training. They have arrest powers and may be called upon to arrest or assist in the arrest of violators of the law. In the course of their duties at the identification section, they maintain physical custody of individuals being detained in criminal cases. Occasionally, it is necessary to employ force to process recalcitrant or aggressive detainees or prisoners. These officers have received threats from prisoners in the past and consider themselves to be under a certain amount of stress as a result of such incidents in the performance of their duties. (Testimony of Blynn, Crawford, Exhibits 3-4)

   
   

2. In the spring of 1977, both Petitioners filed applications with Respondent Division of Retirement for special risk membership in the Florida Retirement System. Their employer certified that their positions were hazardous and met the statutory and regulatory requirements for special-risk membership. They were advised by identical letters from Robert L. Kennedy, Jr., State Retirement Director, on August 12, 1977, that their job descriptions did not support the statement on their application that their primary duties and responsibilities in the position required them to regularly hear a firearm or other weapon, apprehend and arrest law violators or suspected law violators, and to maintain physical custody of prisoners within a prison or detention facility or while being transported. The letters stated: "Accordingly, I am not able to conclude that your continued performance of these duties beyond fifty-five, normal retirement age for special risk members, would jeopardize your physical or mental well-being." The letter further stated that since they did not meet the criteria established by Rule 22B-1.05 C. 2., Florida Administrative Code, nor meet any of the additional criteria in subparagraphs A through D of the rule, the applications were denied, reserving, however, the right for Petitioners to submit revised job descriptions that might more accurately describe their primary duties and responsibilities. Thereafter, on September 1, 1977, the director of the Metropolitan Dade County Public Safety Department wrote to Mr. Kennedy and submitted a revised job description which emphasized the requirement that fingerprint technicians maintain physical custody of prisoners in the course of their duties. However, by letter of November 8, 1977, Kennedy informed the Petitioners that the additional information did not provide adequate information that their continued performance of duties beyond age fifty-five would jeopardize their physical or mental well-being and adhered to his original decision. Petitioners thereafter challenged the decision in separate current administrative proceedings and also filed the present rule challenge. (Exhibits 3,4)

   
   

3. Applications for special risk membership are referred to staff personnel in the Division of Retirement who prepare a recommendation of approval or disapproval for the Director of Retirement. After further review by she division legal staff, the decision is made by the director based on the criteria of the division rules and any applicable court decisions. There is no "check list" or other detailed standards or requirements upon which such decisions are based. The retirement director determines on an ad hoc basis as to whether or not an employee is engaged in such duties as to indicate a need for early retirement because of the hazardous or strenuous type of work involved in the primary duties of particular position. The director based his decision to deny special-risk membership to Petitioners because their primary duty was fingerprint technician and he was being consistent with previous decisions in which fingerprint technicians in other areas of the state had been denied special-risk membership. Although a number of fingerprint technicians in the Dade County Public Safety Department do hold special-risk membership, their membership was approved prior to the requirement that job descriptions be furnished along with the application for membership. The division has no staff

   personnel who are medically qualified, nor has any study been done of the effect on the physical and mental well-being of individuals who perform such duties. (Testimony of Kennedy - Depositions Exhibits 5, 6)

   
   

4. The history of Rule 22B-1.05(3)(b) , Florida Administrative Code, shows that it was originally promulgated on January 1, 1972, as Rule 22B-1.05C. It was substantially amended on October 20, 1972, to read as follows:

   
   

   1. The criteria which shall be used by the employer and the Administrator in determining that a position shall be classified as a special-risk position are:

      1. It must first be determined that the position falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees, fireman, or any other job in the field of law enforcement or fire protection.

      2. Once it is determined that the position falls into one of the categories of positions enumerated in (1), the positian shall be considered hazardous and classified as special risk if in the judgement of the administrator, continued performance of the primary duties and responsibilities of the position beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member's fellow workers or will jeopardize the physical and well-being of the member, and at least one

         of the following statements applies to the position:

         1. The duties and responsibilities of the position require that the incumbent regularly bear a firearm or other weapon.

         2. The incumbent of the position in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.

         3. The primary duty and responsibility of the incumbent of the position is to maintain physical custody of prisoners within a prison or detention facility or while being transported.

         4. The duties and responsibilities of the position require that the incumbent fight fires, other than controlled fires set for instructional purposes. (Emphasis Added)

            
            

5. On December 31, 1974, the rule was again adopted after a public hearing to meet the requirements of the new Administrative Procedure Act. On August 9, 1976, the portion of Rule 22B-1.05 C. 2. that stated "will constitute a hazard

   to the public and a member's fellow workers" was repealed to comply with a court decision rendered in Florida Sheriffs Association v. State of Florida, Department of Administration, Division of Retirement, 332 So.2d 36 (Fla. 1st DCA 1976). The notice of this intended action as required by Section 120.54(1), F.S., contained the following statement: "ESTIMATE OF ECONOMIC IMPACT ON ALL AFFECTED PERSONS: The repeal of this rule will not have any economic impact."

   
   

6. On January 16, 1977, Rule 22B-1.05 was further amended to add a new subparagraph D which established procedures for applying for special-risk membership and for the disposition of applications for such membership. Subparagraphs A through C were unchanged. In the notice of the agency's intended action, it was stated: "ESTIMATE OF ECONOMIC IMPACT: This rule is procedural in nature and therefore has no economic impact."

   
   

7. At some unknown date thereafter, Rule 22B-1.05C was renumbered and is presently shown in the Florida Administrative Code as 22B-1.05(3). (Composite Exhibit l)

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioners seek to invalidate Rule 22B-1.05(3)(b), Florida Administrative Code. Subsection (3) of that rule roads in its entirety as follows:

   
   

   22B-1.05 Qualifications and Application for Special-Risk membership

   1. The criteria which shall be used by the employer and the Administrator in determining that a member shall be classified as a special risk member are:

      1. It must first be determined that the member falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional or detention facility, correctional agency employee whose duties and responsibilities involve direct contact with inmates (but excluding secretarial and clerical employees), fireman, or any other job in the field of law enforcement or fire protection.

      2. Once it is determined that the member falls into one of the categories of the member's enumerated in (a), the member's duties shall be considered hazardous and the member classified as special risk if, in the judgement of the Administrator, continued performance of the primary duties and responsibilities of the member beyond the normal retirement age for a special-risk member will jeopardize the physical or mental well-being of the member and at least one of the following statements applies to the member:

   1. The duties and responsibilities of the member require that he regularly bear a firearm or other weapon.

   2. The member in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.

   3. The primary duty and responsibility of the member is to maintain physical custody of prisoners within a prison or detention facility or while being transported.

   4. The duties and responsibilities of the member require the fighting of fires, other than controlled fires set for instructional purposes.

   
   

9. Section 121.031, Florida Statutes, dealing with the Florida Retirement System, directs the Respondent to "make such rules as are necessary for the effective and efficient administration of this system." Section 121.021(15) defines "special-risk" member as follows:

   
   

   (15) "Special risk member" means any officer or employee whose application is approved

   by the administrator and who receives salary payments for work performed as a peace officer; law enforcement officer; policeman; highway patrolman; custodial employee at a correctional or detention facility; correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer.

   
   

10. Petitioners seek an administrative determination under Section 120.56, F.S., that Rule 22B-1.05(3)(b) is an invalid exercise of delegated legislative authority on the following grounds:

    
    

    1. The rule exceeds the mandate of its statutory authority because it grants to the administrator sole discretion to approve or disapprove applications for special-risk memberships.

    2. The rule conflicts with an existing statute.

    3. No economic impact statement was issued when the rule was promulgated.

    4. The rule is arbitrary and unreasonable.

    
    

11. The parties stipulated at the hearing that Petitioners are substantially affected by the rule.

    
    

12. As to ground (b) above, Petitioners claim that the rule conflicts with Section 121.025, F.S., which vests power in the retirement director to serve as administrator of the retirement system and provides that authority may be delegated to him to sign contracts necessary to carry out his duties and responsibilities. Petitioners maintain that the discretion of the director to

    approve or disapprove special-risk membership as contained in the contested portion of the rule exceeds the powers of the director as set forth in the statutory provision. This ground for invalidation of the rule is without merit because Section 121.021(15) provides for approval of special-risk membership applications by the administrator and that is the statutory provision on which the rule is based.

    
    

13. As to grounds (a) and (d) cited in paragraph 3 above, the First District Court of Appeals held on May 24, 1976, that Rule 22B-1.05C (now Rule 22B-1.05(3)) was valid in that the legislature had intended that the administrator of the retirement system could exercise reasonable discretion in determining whether or not members falling within the categories set forth in the statute exercised hazardous duties entitling them to special-risk membership. Department of Administration v. Brown 334 So.2d. 355 (Fla. 1st DCA 1976). Again, on December 6, 1977, the same court specifically held that Rule 22B-1.05 was valid, citing the Brown case. Shields v. Division of Retirement,

    352 So.2d. 1239 (Fla. 1st DCA 1977). Those decisions effectively dispose of Petitioner's contentions that the rule exceeds statutory authority or is arbitrary and unreasonable.

    
    

14. As to Petitioner's ground (c) that no economic impact statement was issued when the rule was promulgated, the following matters are pertinent. The facts show that the rule, in substantially its present form, was adopted in 1974, pursuant to Section 120.54, F.S. At that time, no economic impact statement was required. Effective June 25, 1975, Section 120.54(1) was amended to include the requirement that an agency must set forth in its notice of the adoption, amendment, or repeal of any rule an estimate of the economic impact of the proposed rule on all persons affected by it. Effective July 1, 1976, Section 120.54 was again amended to add subsection (2) which spelled out detailed information to be included in the required economic impact statement. Thereafter, on August 9, 1976, a portion of Rule 22B-1.05C was repealed as required by the effect of a court decision. At that time, the agency did not prepare an economic impact statement and stated in its notice that repeal of the specific portion of the rule would not result in any economic impact. It is considered unnecessary to discuss the validity of that statement because, as noted in paragraph 6 above, the rule was subsequently held valid in its present form in the Shields case. Such decision, of course, is binding on this Hearing Officer, and implicitly precludes consideration now of any procedural errors committed by an agency in promulgating the rule. Although the rule was again amended on January 16, 1977, the contested portion of the rule was left unchanged and, accordingly, that amendment is not in issue here.

It is concluded therefore that Petitioners have not established that Rule 22B-1.05(3)(b), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 16th day of May, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

E. Douglas Spangler, Jr. Assistant Division Attorney Division of Retirement

2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

Carl J. Leib, Jr., Esquire

186 Southwest 13th Street Miami, Florida 33130

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32304

Docket for Case No: 78-000500RX

Orders for Case No: 78-000500RX