STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE NELSON, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1925RX

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION; and STATE ) OF FLORIDA, DEPARTMENT OF )

AGRICULTURE AND CONSUMER )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 122, Fletcher Building, 101 Fast Gaines Street, Tallahassee, Florida, commencing at 9:30 a.m., November 19, 1980.

APPEARANCES

For Petitioner: Stephen J. Keller, Esquire

Patterson & Traynham 1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32303

For Respondent, Robert A. Chastain, Esquire Department of General Counsel

Agriculture Department of Agriculture and and Consumer Consumer Services

Services: Room 513, Mayo Building Tallahassee, Florida 32301

For Respondent, David Kerns, Esquire Department of General Counsel Administration: Department of Administration

Room 435, Carlton Building Tallahassee, Florida 32301

Samantha Boge, Esquire Assistant General Counsel Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301

ISSUE

This matter concerns the Petitioner's attack on Rules 22A-13.04 and 22A- 7.10(4)(a), Florida Administrative Code, on the grounds that they are invalid exercises of delegated legislative authority within the meaning of Section 120.56, Florida Statutes.

FINDINGS OF FACT

1. The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.)

   
   

2. As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials.

   
   

3. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board.

   
   

4. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy.

   
   

5. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject.

   
   

6. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to

   Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence.

   
   

7. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence.

   
   

8. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point.

   
   

9. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits.

   
   

10. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate.

    
    

11. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not.

    
    

12. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent.

13. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated.

    
    

14. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

16. By this action and under the authority of Section 120.56, Florida Statutes, the Respondent has challenged the following rules as being invalid exercises of delegated legislative authority:

    
    

    "22A-13.04 Penalties. An employee who qualified a candidate for or holds public office without obtaining prior approval according to this chapter shall be ineligible for continued state employment and shall be deemed to have resigned without right to appeal to the Career Service Commission. In addition, the employee may be subject to penalties set forth in Section 110.127, Florida Statutes."

    "22A-7.10(4)(a) An employee who seeks or holds office contrary to or without complying with the provisions of Section 110.233(4), Florida Statutes, shall be presumed to have become ineligible for continuation of employment and shall be deemed to have resigned from the Career Service without the right to appeal to the Career Service Commission.

    
    

17. The Petitioner in this action has been terminated from his employment in keeping with the authority expressed in Rule 22A-13.04, Florida Administrative Code, and in keeping with the rationale expressed in Rule Subsection 22A-7.10(4)(a), Florida Administrative Code, and for that reason has demonstrated necessary standing to attack the rules in question. To be successful in this endeavor, the Petitioner must prove that the rules are invalid exercises of delegated legislative authority or are arbitrary and capricious in their effect.

    
    

18. It is concluded that his claim that the rules are invalid exercises of delegated legislative authority is efficacious.

    
    

19. The stated authority for the passage of Rule Section 22A-13.04, Florida Administrative Code, is Sections 110.201 and 110.127, Florida Statutes 1/ While Section 110.201, Florida Statutes, grants to the State of Florida. Department of Administration, the responsibility and authority to develop uniform personnel rules, it does not grant the authority to dismiss permanent status Career Service employees of the State of Florida without recourse via a

    de novo hearing dealing with the nature and quality of the alleged offense committed.

    
    

20. In addition, Section 110.127, Florida Statutes, establishes the right for the criminal law prosecutorial arm of government in the State of Florida to proceed against persons who violate Chapter 110, Florida Statutes, and the County Court, Criminal Division to find a person guilty, and the right of the State of Florida, Department of Administration, to declare these persons ineligible for appointment to or employment in a position of State service if convicted of a crime within the last five years, and further, if the individual is convicted in those criminal court proceedings and is an employee of the State, that the person shall forfeit his or her position as a State employee. It does not allow the Department of Administration to stand in for the criminal courts of this State and impose the ultimate penalty of dismissal without recourse. There must be court determination of guilt and civil service review. 2/ Consequently, there is no authority found in the aforementioned provisions of Florida Statutes which would allow the Department of Administration to enact the penalty provision found in Rule 22A-13.04, Florida Administrative Code.

    
    

21. There is no other statement of authority offered for the passage of this rule other than that discussed before; nevertheless, in the interest of fairness and to avoid unreasonable formality and for reason that the overall Chapter 22A-13, indicates that the law being implemented is Section 110.233, Florida Statutes, and in particular, Section 110.233(4)(a), Florida Statutes, and for purposes of this Order, Subsection 110.233(4)(a), Florida Statutes, will be reviewed to ascertain if there is a sufficient statement of authority for enacting Rule 22A-13.04, Florida Administrative Code. Subsection 110.233(4)(a), Florida Statutes, states:

    
    

    " . . . However, no employee in the Career Service shall: (a) Hold, or be a candidate for, public or political office while in the employment of the state or take any active part in a political campaign while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the state.

    However, when authorized by his agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his state employment, an employee in the career service may be a candidate for

    or hold local public office. The Department of Administration shall prepare and make available to all affected personnel who make such request a definite set of rules and

    procedures consistent with the provisions herein."

    
    

    From a reading of that subsection, there is no legitimate dispute of the authority of the Department of Administration to prepare rules and make those rules available to personnel within the employment system of the State of Florida on the subject of the ability of those employees to run for local public office, provided it is done within the guidelines set forth in the enabling legislation on the subject of State employees campaigning for and holding local public office in the State of Florida.

22. The problem with the efforts of the Department of Administration to enact the aforementioned penalty found in Chapter 22A-13, Florida Administrative Code, is the fact that the disputed provision declaring the ineligibility and the forced resignation of a Career Service employee who has run for local office without gaining the necessary permission of his agency head and the approval of the Department of Administration runs contrary to the spirit and purpose of the Career Service System in the State of Florida. As set forth in Section 110.227, Florida Statutes, permanent status employees in the Career Service System may only be suspended or dismissed for cause and cause shall include claims of insubordination, or willful violation of the provisions of law or agency rules.

    
    

23. The Department of Administration, while it may establish the rules and procedures for this suspension or dismissal of the employees, it may not disturb the due process hearing, that is, the hearing de novo to decide the ultimate question of whether the accused employee has participated as a candidate or held local public office without the permission of his agency head and the approval of the Department of Administration. The hearing before the Career Service Commission is held pursuant to ,Section 110.309, Florida statutes. 4/ It is the province of the agency, in this instance the State of Florida, Department of Agriculture and Consumer Services, to determine the seriousness of the Petitioner's act and the punishment for taking the oath of candidacy and subsequent campaigning for the School Board Seat, District IV, Wakulla County, Florida, without gaining the permission of the agency and the subsequent approval of the Department of Administration and the penalty to be imposed for these actions may be reviewed before the Career Service Commission as described herein.

    
    

24. The procedural review set forth in Rule 22A-13.032, Florida Administrative Code, does not address this problem. That provision deals only with those persons who have voluntarily submitted themselves to the process of review after after being denied their opportunity to run for public office or holding public office. Once an employee has violated Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code, excluding Rule Section 22A-13.04, Florida Administrative Code, without availing himself of rights to review set forth in Rule 22A-13.031, Florida Administrative Code, and a penalty has been imposed by his agency, his recourse is in keeping with the procedures set forth in Section 110.309, Florida Statutes. Relief sought before the Career Service Commission is exclusive absent some alternative procedure through a collective bargaining agreement and in that instance the affected employee may pursue this alternative form of relief. See Subsection 110.305(5), Florida Statutes. There is no concurrent or exclusive jurisdiction with the State of Florida1 Department of Administration, to cause the termination or dismissal of a permanent status Career Service employee premised upon that employee's violation of the statute and rules dealing with offering himself as a candidate for office or holding that office as a local public official. The fact that Section 110.233, Florida Statutes, immediately follows Section 110.227, Florida Statutes, in the compilation of laws does not diminish or overturn this judgment. Under the circumstances, Rule Section 22A-13.04, Florida Administrative Code, may not stand, for reason that it is an invalid exercise of delegated legislative authority.

    
    

25. Likewise, Rule Subsection 22A-7.10(4)(a), Florida Administrative Code, is an invalid exercise of delegated legislative authority for reasons set forth hereinabove. The fact that it carries with it the statement of additional authority found in Section 110.217 and in particular, Sub- section 110.217(7), Florida Statutes, and Section 110.227, Florida Statutes, does not cure its infirmity. Section 110.217, Florida Statutes, does not in any way deal with

    statements of ineligibility leading to the resignation of a permanent status Career Service employee without recourse and, as discussed before, Section 110.227, Florida Statutes, while it makes it incumbent on the Department of Administration to establish rules and procedures for this suspension and dismissal of Career Service employees, it does not allow for what is tantamount to the dismissal of an employee without recourse through a de novo hearing.

    
    

26. The Respondent, State of Florida, Department of Administration, has attempted to defend its rules by asserting that the declaration of ineligibility and automatic resignation countenanced by the subject rules is analogous to an abandonment of the job position. For reasons already given in this Order and for reason that the analogy is untenable, the Hearing Officer is not dissuaded from making the pronouncement of rule invalidity related in this matter. It is therefore,

    
    

    ORDERED:

    
    

    That Rule 22A-13.04 and Rule Subsection 7.10(4)(a), Florida Administrative Code, are held to be invalid exercises of delegated legislative authority within the meaning of Section 120.56, Florida statutes. 6/

    
    

    DONE AND ENTERED this 19th day of December, 1980, in Tallahassee, Florida.

    
    

    CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

    (904) 488-9675

    
    

    
    

    ENDNOTES

    
    

    1/ "110.127 Penalties.--

    1. Any person who willfully violates any provision of this chapter or of any rules adopted pursuant to the authority herein granted is guilty of a misdemeanor of the second degree, punishable as provided in Sec. 775.082, Sec. 775.083, or Sec. 775.084.

    2. The provisions of s. 112.011 to the contrary notwithstanding, any person who is convicted of a misdemeanor under this chapter shall be, for a period of 5 years, ineligible for appointment to or employment in a position in the state service and, if an employee of the state, shall forfeit his or her position.

    3. Imposition of the penalties provided on this section shall be in lieu of any action which may be taken or penalties which may be imposed pursuant to part III of chapter 112."

"110.201 Personnel roles, records, and reports.--

1. The department shall develop and administer the establishment of uniform personnel rules, records, and reports relating to employees and positions in the career service.

   1. The department shall develop uniform forms and instructions to be used in reporting transactions which involve changes in an employee's salary, status, performance, leave, fingerprint record, loyalty oath, payroll change, appointment action, or any additional transactions as the department may deem appropriate.

   2. It shall be the responsibility of the employing agency to maintain these records and all other records and reports prescribed in applicable rules on a current basis.

2. Each employing agency shall operate within the uniform personnel rules promulgated by the department pursuant to the provisions of this chapter. Each employing agency shall adopt roles as necessary to implement the provisions of this part and the provisions of the roles of the department, but such rules shall not prescribe any personnel policies inconsistent with the provisions of this chapter or the roles of the department. Neither the rules of the department nor the rules of an employing agency shall include any benefits for career service employees which are in excess of, or in addition to, those authorized by this chapter.

3. The rules adopted by the department and each employing agency under this part shall comply with all federal regulations necessary to permit the state agencies to be eligible to receive federal funds.

4. The department shall coordinate with the Governor and consult with the Administration Commission on personnel matters falling within the scope of collective bargaining and shall represent the Governor in collective bargaining negotiations and other collective bargaining matters as may be necessary. All discussions between the department and the Governor, and between the department and the Administration Commission, or between any of their respective representatives, relative to collective bargaining, shall be exempt from the provisions of Sec. 286.011, and all work products relative to collective bargaining developed in conjunction with such discussions shall be exempt from the provisions of chapter 119."

2/ See Rifkin v. Florida Real Estate Com'n, 345 So.2d 349 (4 DCA Fla. 1977) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (2 DCA 1977).

3/ "110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers.--

1. Any employee who has permanent status the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude.

2. The department shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion, and dismissal of employees in the career service. Such rules shall be approved by the Administration Commission prior to their adoption by the department.

(3)(a) When a layoff becomes necessary, such layoff shall be conducted within the competitive area identified by the agency head and approved by the Department of Administration. Such competitive area shall be established taking into consideration the similarity of work; the organizational unit, which may be by agency, department, division, bureau, or other organizational unit; and the commuting area for the work affected.

(b) Layoff procedures shall be developed to establish the relative merit and fitness of employees and shall include a formula for uniform application among all employees in the competitive area, taking into consideration the type of appointment, the length of service, and the quality of performance.

(4) Any permanent career service employee subject to reduction in pay, transfer, layoff, or demotion shall be notified in writing by the agency prior to its taking such action. Such notice shall be sent by certified mail with return receipt requested. Such actions shall be appealable to the Career Service Commission, pursuant to roles adopted by the department.

(5)(a) Any permanent career service employee who is subject to suspension or dismissal shall receive written notice of such action at least 10 days prior to the date such action is to be taken. Subsequent to such notice, and prior to the date the action is to be taken, the affected employee shall be given an opportunity to appear before the agency or official taking the action to answer orally and in writing the charges against him. The notice be the employee required by this paragraph shall be sent by certified mail with return receipt requested. An employee who is suspended or dismissed shall be entitled to a hearing before the Career Service Commission pursuant to Sec. 110.309 . . ."

4/ "110.309 Procedure with respect to suspensions and dismissals.

1. A permanent employee in the State Career Service System who is suspended or dismissed by an agency or officer shall be entitled to a de novo fact-finding hearing. Such hearing shall be conducted by the commission itself, unless otherwise provided for by law.

2. Upon a finding that just cause existed for the suspension or dismissal, the commission shall affirm the suspension or dismissal.

3. Upon a finding that just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee, with or without back pay.

4. Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission may, in its discretion:

   1. Reduce a dismissal to a suspension for such time as the commission may fix; or

   2. Reduce the period of a suspension.

5. Any order of the commission issued pursuant to subsection (3) or subsection (4) shall be conclusive on the agency or officer concerned. The order may include an amount, to be determined by the commission and paid by the agency, for reasonable attorney's fees, witness fees, and other out-of-pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee."

5/ "22A-13.032 Procedure for review.

1. If the agency head denies an employee's request submitted in accordance with this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding before the agency head or his/her designate. A request for hearing pursuant to this section shall be filed with the agency head within 20 days from the date the employee receives notice of the decision to deny approval of his/her request to campaign for or hold a local public office.

2. If the Department of Administration disapproves an employee's request pursuant to this chapter, the employee shall have the right to a Section 120.57, Florida Statues, proceeding before the Secretary of Administration or his/her designate. A request for hearing pursuant to this section shall be filed with the Secretary of Administration within 20 days from the date the employee receives notice of the Department's decision to deny approval of his/her request to campaign for or hold a local public office.

3. In proceedings pursuant to this section, the employee shall bear the burden of establishing that his/her candidacy or the duties of the local public office will not involve a conflict of interest or interfere with his/her state employment. If the agency head or Secretary of Administration determines that approval was withheld unreasonably by the agency or Department, respectively, the employee may become a candidate for the requested local public office or continue to hold the local public office without terminating his/her state employment.

4. An agency or an employee who is adversely affected by final agency action, shall be entitled to judicial review pursuant to Section 120.68, Florida Statutes. The employee shall not have the right to appeal such action to the Career Service Commission."

6/ The Petitioner to this action has offered Proposed Findings of Fact, Conclusions of law and a Recommended Disposition of this action. This proposal and recommendation have been reviewed prior to the entry of this Order. To the extent that the proposal and recommendation are consistent with the Order, they have been utilized. To the extent that the proposal and recommendation do not conform to the Order, they are hereby rejected.

COPIES FURNISHED:

Stephen J. Keller, Esquire Patterson & Traynham

1215 Thomasville Road Post Office Box 4289

Tallahassee, Florida 32303

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

David Kerns, Esquire General Counsel

Room 435, Carlton Building Tallahassee, Florida 32301

Samantha Boge, Esquire Assistant General Counsel Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud Department of State Room 1802, The Capitol

Tallahassee, Florida 32301

ADDENDUM

Petitioner's Exhibit No. 8 may be found in the file of Division of Administrative Hearings Case No. 80-1574, George Nelson, Petitioner vs. State of Florida, Department of Agriculture and Consumer Services.

Docket for Case No: 80-001925RX

Orders for Case No: 80-001925RX