STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHNNIE T. GROVES, D. J. ) MILLER and C. R. HENDERSON, )
)
Petitioners, )
)
vs. ) CASE NO. 80-1609RX
) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )
)
Respondent. )
)
FINAL ORDER
The petitioners; Johnnie T. Groves, D. J. Miller, and C. R. Henderson; filed a petition for Administrative Determination pursuant to Section 120.56, Florida Statutes. Petitioners are seeking an order determining that various decisions of the Respondent, Department of Transportation, constitute rules, were not properly promulgated as rules, and are therefore invalid exercises of delegated legislative authority. By Order entered September 12, 1980, the Director of the Division of Administrative Hearings assigned the matter to the undersigned. The final hearing was scheduled to be conducted on October 10, 1980, by Notice dated September 16, 1980. The Department of Transportation filed a Motion to Dismiss the petition contending that the rules being challenged were rules of the Department of Administration rather than the Department of Transportation. The Motion was denied by Order entered September 23, 1980, was raised again on the record at the final hearing, and was again denied.
FINDINGS OF FACT
The Secretary of the Respondent, Department of Transportation, determined that the Department's Division of Construction and Division of Materials and Research were over-staffed within the Department's third district. The Secretary identified ninety-nine positions as being surplus, and initiated action to delete them. The procedures for accomplishing the layoffs and transfers that the Secretary's decision necessitated are set out at Section 110.227, Florida Statutes, and in rules of the Department of Administration ("DOA" hereafter), Chapter 22A-7, Florida Administrative Code. DOA rules set out standards whereby an employee laid off can accept a position at the same or lower classification within a designated competitive area, and in effect "bump" an employee who has fewer retention points under the DOA rules. DOA rules require that an agency seeking to implement a layoff obtain approval from DOA as to what classifications will be eligible to be bumped, and as to what the competitive for layoff purposes will be. The Department of Transportation requested approval for confining retention rights to its Division of Construction and its Division of Materials and Research within its third district, which covers north Florida counties. DOA approved limiting the retention rights to the designated division but designate the competitive area as Statewide rather district-wide. The Department of Transportation thereafter
notified employees affected by the layoff, and advised them of available options for retention. The Department did not engage in rule-making procedures in implementing the layoff.
The Petitioner Johnnie T. Groves has been employed with the Department of Transportation for twenty-two years. Prior to the instant layoff action, he was employed as an "Engineer I" in the Division of Construction in Jacksonville, Florida. He was advised by letter dated July 9, 1980, that his position had been identified as surplus. He thereafter received "layoff guidelines," from the Department. Under procedures followed by the Department, he was given the option of staying in Jacksonville but having to move back two positions to a position as "Engineering Technician III," or moving to Perry, Florida, to take another position as an "Engineer I." The option of staying in Jacksonville would result in the Petitioner making less money. Moving to Perry would cause him considerable inconvenience. He has resided in Jacksonville for some time and operates a farm there which supplements his income.
The Petitioner D. J. Miller has been employed with the Department of Transportation for more than twenty years. Prior to the implementation of the layoff, Miller was employed by the Department in its Jacksonville office as an "Engineer I." He received the same notification that his position was scheduled to be deleted as did the Petitioner Groves. His options under the procedures followed by the Department were to stay in Jacksonville and to take a position as an "Engineer I" in the "pre-stress construction yard," or to move to Gainesville and take a position similar to the one that he had held in Jacksonville. The job in Jacksonville was at a lower rate of pay and, due to an eye problem and dust at the pre-stress construction yard, could cause the Petitioner some physical difficulties. The Petitioner is divorced and has a twelve-year-old son. He relies upon his parents, who reside in Jacksonville, to assist in caring for his son, and any move would impose a hardship upon him.
The Petitioner C. R. Henderson has been employed by the Department of Transportation for twenty years. At the time that the layoff was announced, the Petitioner was employed in the Department's Construction Division in Jacksonville as an "Engineer I." The Petitioner received the same notification that his position was being deleted as had the Petitioners Groves and Miller. The Petitioner's options were to stay in Jacksonville and take a position in the pre-stress construction yard, or move to Lake City where he could take a position similar to the one that he had held in Jacksonville. He did not feel competent to take the position in the pre-stress construction yard. Taking the job in Lake City has created a hardship for the Petitioner. He operates a ranch to supplement his income near Jacksonville, Florida, and the new location is seventy-two miles from his home.
CONCLUSIONS OF LAW
The Petitioners are challenging three specific procedures followed by the Department of Transportation in implementing the layoff. The first of these is set out in a memorandum dated August 13, 1980, titled "Layoff Guidelines." The Department provided the memorandum to affected employees. It provides:
To accomplish this layoff your retention points have been updated through July 31st and we will use the points you held on that day as well as the status (probationary, permanent, trainee, etc.) until the entire layoff is completed. The retention point
list will not be updated again during the procedure. If an employee's actual status changes after July 31st and prior to com- pletion of the layoff, your status for layoff purposes will not be updated.
Petitioners contend that this statement constitutes a rule, it was not properly promulgated as a rule, and that it is therefore an invalid exercise by the Department of delegated legislative authority.
Whether the statement is a rule or not, the Petitioners have not shown that they are adversely affected by it. Petitioners could only offer that it is possible that had some other date been chosen for determining retention points, they may have stood in a better position competitively with other employees.
The injury which Petitioners have suggested is purely speculative. They have not shown that the policy adversely affects them. It is just as possible that choosing the July 31 date was advantageous to the Petitioners as is the contrary. Since they have not shown any adverse effect from the policy, the Petitioners lack standing to attack its validity as a rule. See: Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1 DCA Fla. 1978)
The second policy being challenged is set out in the same memorandum and is as follows:
An employee may bump to a position in a class at the same level or below the class in which the employee held permanent status within a class series. For example, an employee hired as an Engineering Technician III, with permanent status in that class, could bump another Engineering Technician II or an Engineering Technician I provided the employee has more retention points than the person he or she bumps. The retention points for Engineering Technician III would be used for all three classes. An employee
promoted from the class of Engineering Tech- nician III (Engineering Aid III) to the class of Engineer I could not bump back
to an Engineering Technician IV because he had never held permanent status at the level of Engineering Technician IV.
The Petitioners contend that this policy constitutes a rule, that it was not properly promulgated as a rule, and that it therefore constitutes an invalid exercise of delegated legislative authority.
The policy is a restatement of the Department of Administration rule set out at Section 22A-7.11(4), Florida Administrative Code. The Petitioners have not challenged the DOA rules, but rather have contended that the Department of Transportation policy is in effect a rule which implements the DOA rule. The provision in this instance is a direct restatement of the DOA rule. Petitioners have not established that the DOA rule constitutes an invalid exercise of delegated legislative authority. The Department of Transportation is obliged to follow the DOA rule. The law would not appear to require the Department of Transportation to adopt the DOA rule as its own rule.
The third policy challenged by the petitioners was set out in the form letter notice dated July 9, 1980, that the Department forwarded to employees affected by the layoff. The policy provides:
The competitive area for this layoff has been approved by the Department of Adminis- tration as statewide for positions assigned to Construction and Materials and Research only. Should you choose to exercise your retention rights this means that you may bump another employee in Construction or Materials and Research with less retention points than you, in a class in which you have attained permanent status anywhere in the state.
Petitioners contend that the designation of the competitive area is a rule, that the Department of Transportation did not promulgate it as a rule, and that it therefore constitutes an invalid exercise of delegated legislative authority.
The Petitioners are clearly substantially affected by the designation of the competitive area. If additional divisions other than the Construction Division and the Materials and Research Division had been available to the Petitioners for bumping, they would each have been able to find desirable positions in Jacksonville, Florida. "Rule" is ,defined at Section 120.52(14), Florida Statutes, as follows:
"Rule" means each agency's statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure,
or practice requirements of an agency . . . the term does not include:
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 . . .
In adopting rules, agencies are required to follow procedures set out at Section 120.54, Florida Statutes. If an agency implements a policy which constitutes a "rule," but does not properly follow rule-making procedures, the policy constitutes an invalid exercise of delegated legislative authority. State Department of Administration v. Harvey, 356 So.2d 323 (DCA Fla. 1978); State Department of Administration v. Stevens, 344 So.2d 290 (1 DCA Fla. 1977). The Department of Transportation did not engage in rule making in defining the competitive area for the purposes of the layoff. If the competitive area constitutes a rule, the action would therefore be invalid. It is concluded, however, that defining the competitive area for the purposes of a specific layoff does not constitute a rule.
The decision in Department of Commerce v. Matthews Corporation, 358 So.2d 256 (1 DCA Fla. 1978), is directly analogous. The Division of Labor of the Department of Commerce was charged with the responsibility of setting prevailing wage rates on public works projects. A contractor on one such
project challenged the prevailing wage schedule which was set by the Division of Labor for that project, contending that the schedule constituted an invalid rule. The Hearing Officer concluded that the prevailing wage determinations were rules, were not promulgated as rules, and were therefore invalid. The Court reversed and stated: (at p. 258)
We disagree with the hearing examiner [sic]. The determinations are not statements of general applicability. While wage deter- minations must be included within the specifications of each public works con- tract in the state1 the determination .
is applicable only to the construction of the particular public building or other work specified in the determination. The determination thus has temporal `as well as geographical limitations. The determina- tions have no prospective application to any other contract--only the specific pro- ject involved in the particular location.
Nor do they set wage standards for affected persons extending some indefinite time in the future. The wage determinations may
be considered informal "orders" which can be subjected to Section 120.57 proceedings.
Petitioners here contend that since the competitive area affects so many employees (the ninety-nine first affected, plus all employees bumped by the ninety-nine), its application is general. Certainly, the determination of the competitive area has a broad application, but it is nonetheless limited to a given layoff determination. In Matthews, the application of the prevailing wage schedule also had broad application. It probably affected considerably more than ninety-nine employees, and had substantial impact upon employers as well. The Court nonetheless determined that the prevailing wage determinations were orders, not rules, citing Justice Holmes' elucidation of the distinction set out in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908):
A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws sup- posed already to exist. That is the pur- pose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.
Procedures which provide how a competitive area will be determined, or what facts must be considered in determining a competitive area would clearly be rules, having application in the future. The actual choice of a competitive area, however, declares matters based on present fact under rules already existing.
The competitive area determination made by the Department of Transportation does not constitute a rule, and the Petition herein should therefore be dismissed. Issues respecting the appropriateness of the competitive area determination were not raised in this proceeding and were not
considered. They could only be appropriately considered through "a timely proceeding initiated in accordance with Section 120.57, Florida Statutes.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is, hereby,
The Petitioners have failed to establish that the policies followed by the Department of Transportation in implementing the layoff constitute invalid exercises of delegated legislative authority, and the Petition is therefore dismissed.
DONE AND ORDERED this 30th day of October, 1980, in Tallahassee, Florida.
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Department of Administration
Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980.
COPIES FURNISHED:
William F. Kachergus, Esquire Maness & Kachergus
502 Florida Theater Building Jacksonville, Florida 32202
Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Carroll Webb, Esquire Executive Director
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud, Chief
Bureau of Administrative Code Department of State
1802 The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Oct. 30, 1980 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 30, 1980 | DOAH Final Order | petitioners didn't show that the layoff policies of respondent were invalid, unpromulgated rules within the meaning of the statute and rules. |
KEITH D. COMBS vs. ACCO MECHANICAL CONTRACTORS, INC., 80-001609RU (1980)
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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION vs DUANNE LEE ALBERTI, 80-001609RU (1980)
CONSTRUCTION INDUSTRY LICENSING BOARD vs AGNES SANGSTER, 80-001609RU (1980)
