STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 79-971RX

)

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

FINAL ORDER

The Petitioner, Gloria Walker, filed a Petition to Determine Invalidity of a Rule" in accordance with the provisions of 120.56, Florida Statutes.

Petitioner is seeking a determination that Career Service Commission Rule 22M- 2.15(4), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. Subsequent to the filing of the petition an Order of Assignment was entered by the Director of the Division of Administrative Hearings, and a notice of hearing was issued. Upon stipulation of the parties the requirement of 120.56(4) that the final hearing be conducted within thirty days of issuance of the Order of Assignment was waived, and the final hearing was conducted on June 12, 1979.

APPEARANCES

For Petitioner: Algia R. Cooper

Knowles, Smith, Randolph & Cooper Tallahassee, Florida

For Respondent: David V. Kerns, General Counsel

Department of Administration Tallahassee, Florida

There are no issues of fact to be resolved. At the final hearing the parties stipulated that the allegations of Paragraphs 1-6 of the petition can be accepted as true with certain minor modifications. No witnesses were called, and no exhibits were received.

The facts are as follows: Petitioner is an applicant to be placed on the Career Service system personnel register as a Personnel Technician II. She passed the examination for that position with a final score of 99. On or about January 4, 1979, Petitioner was advised that her name was removed from the register by the State Personnel Director because the entire register for the Personnel Technician II position had been abolished. On or about January 16, 1979, Petitioner appealed that decision to the Career Service Commission in accordance with Division of Personnel Rule 22A-5.04(3). The Career Service Commission accepted the appeal and scheduled a hearing. The hearing has been postponed pending adjudication of this matter.

Career Service Commission rules providing for procedures to be applied in appeals such as the Petitioner's are set out at 22M-2.15, Florida Administrative Code. Rule 22M-2.15(4) provides:

Appeals under this section are not considered appeals from employment disciplinary actions. The complainant shall

be considered the moving party and shall have the burden of proving his or her allegations by the greater weight of the evidence.

Petitioner contends that this rule has the effect of shifting the burden of proof from the party that has the affirmative of the issues, the Division of Personnel, to her. Respondent contends that the Petitioner lacks standing to challenge the rule because the Career Service Commission has not yet decided the Petitioner's appeal, and that the rule is a valid exercise of delegated legislative authority.

The first issue to be addressed is whether the Petitioner has the requisite standing to maintain a challenge to the Career Service Commission's procedural rules. Section 120.56(1), Florida Statutes, provides:

Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the grounds that the rule is an invalid exercise of delegated legislative authority.

The First District Court of Appeal decision in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1978) by necessary implication resolves the standing issue in the Petitioner's favor. Jerry was an inmate in prison. He had been subjected to disciplinary action by prison officials. He was found guilty, and was subjected to disciplinary confinement. Thereafter he filed a challenge to the Department of Offender Rehabilitation procedural rules governing the disciplinary proceeding. The court concluded that Jerry failed to show injury which was accompanied by ". . .any continuing, present adverse effects." at p. 1235. The fact that Jerry might be subjected to disciplinary proceedings in the future was not sufficient to confer standing.

In the instant matter the Petitioner is in the midst of the proceeding before the Career Service Commission which will determine her substantial interest--her right to have her name included on the personnel register.

Procedural rules governing that proceeding presently affect her because the rules govern her ability to establish her entitlement to registration. To hold that the Petitioner lacks standing to attack these procedural rules until the Career Service Commission has taken final action would result in the anomalous proposition that a party subjected to procedural rules would have no standing to attack the rules until the proceeding is completed, but that once the proceeding is completed the party would not be presently affected by the rules and therefore would lack standing under Department of Offender Rehabilitation v.

Jerry. It is concluded that the Petitioner has standing to maintain the instant rule challenge.

The second issue involved in this matter is whether Rule 22M-2.15(4) constitutes an invalid exercise of delegated authority. This issue involves two questions: First, whether, under general principles of Administrative Law, the burden of proof would lie with the Petitioner in a proceeding such as the one

being conducted by the Career Service Commission, and secondly, if not, whether the Career Service Commission has authority to shift the burden of proof by rule.

In quasijudicial administrative proceedings the burden of proof generally lies with the moving party, or the party asserting the affirmative of an issue. In his treatise on State Administrative Law, Professor Cooper stated:

The State courts quite uniformly impose on agencies the customary common-law rule that the moving party has the burden of proof, including not only the burden of going forward but also the burden of persuasion. This means, of course, that when an applicant appears before an agency seeking to

establish a claim or obtain a license, the burden is on him. Conversely, when the agency is the moving party, the burden is on it. 1 Cooper, State Administrative Law 355 (1965)

Florida courts have applied the following test in determining where the burden of proof lies in an administrative proceeding:

As in court proceedings, the burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Tropical Park v. Ratliff, 97 So.2d 169, 177 (Fla. 1957); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (4 DCA Fla.

1974).

In the latter case, the Department of Health and Rehabilitative Services had contended, in a Career Service Commission appeal, that a terminated employee had the burden of establishing that the termination was improper. The court stated: (at pp. 414, 415)

Where an agency terminates an employee for certain stated grounds, reason, logic and the law would require that

the agency affirmatively carry the burden of proving the essence of its allegations. While this burden never shifts, the proof presented may give rise to a presumption in the establishment of the case so that the burden of moving forward with the presentation will shift to the party resisting the affirmative action of the agency . . . .

The fact that the aggrieved employee must initiate the hearing before the commission whether such action is denominated as an "appeal" does not alter the proposition

that the burden of proving the basis for termination rests with the employing agency.

In Balino v. Department of Health and Rehabilitative Services, 348 So.2d

349 (1 DCA. Fla. 1977) the Department of Health and Rehabilitative Services determined that recipients of Medicaid benefits had the burden of proof at a reclassification hearing to determine their continued eligibility for benefits. Noting that it was the Department of Health and Rehabilitative Services, not the Medicaid recipients, that was seeking to change the status quo, the court reversed, holding that the Department was asserting the affirmative of the issue. The court also noted that evidence justifying any reclassification was in the hands of the Department, and that the Department was in the superior position to present evidence. Similarly, in Amico v. Division of Retirement,

352 So.2d 556 (1 DCA Fla. 1977), the court held that the burden of proof in a proceeding before the State Retirement Commission considering the termination of disability retirement benefits was upon the Division of Retirement and not the recipient. The court stated that once a determination has been made that a retiree is eligible for disability retirement benefits, and payments have begun, the burden of proof on the contested issue lies with the Division of Retirement.

Applying the above propositions to the instant matter, it is apparent that the burden of proof in the proceeding before the Career Service Commission would lie with the Division of Personnel. The Petitioner had been placed on a register of persons eligible for the position of Personnel Technician II. The Division of Personnel is taking affirmative action to abolish the entire register of eligibles, which has the effect of removing the Petitioner from the list. Clearly it is the Division of Personnel that is the moving party, seeking to change the status quo. The fact that the proceeding before the Career Service Commission is designated an appeal does not shift this burden.

Department of Health and Rehabilitative Services v. Career Service Commission, supra. The proceeding before the Career Service Commission is the Petitioner's first opportunity to hear the Division of Personnel's evidence in support of its affirmative action, and her first opportunity to present evidence on her own behalf. Certainly it is the Division of Personnel, net the Petitioner, which is in the best position to support its own action.

No cases have been cited in support of the proposition that an administrative agency can, through its rulemaking authority, change the burden of proof in an administrative adjudicative proceeding. While both the Division of Personnel and the Career Service Commission have broad rulemaking authority (see: Ch. 110 Fla. Stat.) neither has the authority to change the substantive law under which it operates. Since the Division of Personnel is seeking to take affirmative action, and since the Division of Personnel is the party which has available to it evidence to support is action, fairness requires that it has the burden of proof in the proceeding before the Career Service Commission. The question of which party has the burden of proof is a question of substantive law. To impose the burden upon the Petitioner in this case would be contrary to law.

Rule 22M-2.15 of the Career Service Commission relates to numerous cases other than ones such as the Petitioner's. The ruling in this case will be limited to proceedings in which the Division of Personnel is seeking to remove the name of a person from a list of those eligible for certain Career Service positions. Whereupon, it is,

ORDERED:

Career Service Commission Rule 22M-2.15(4) constitutes an invalid exercise of delegated legislative authority and is hereby declared invalid as it relates to proceedings to remove names of persons from the register of eligibles for classes of employment within the Career Service Commission.

DONE and ORDERED this 12th day of July, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Algia R. Cooper, Esquire

Knowles, Smith, Randolph & Cooper

121 1/2 South Monroe St. Tallahassee, Florida 32301

David V. Kerns, General Counsel Department of Administration

311 Carlton Building Tallahassee, Florida 32301

Carroll Webb Executive Director

Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

Room 1802 Capitol Building Tallahassee, Florida, 32304

Docket for Case No: 79-000971RX

Orders for Case No: 79-000971RX