STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE NELSON, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2049RX

) 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 East 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

General Counsel

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

ISSUE

This case concerns the action brought by the Petitioner against the Respondent under the alleged authority found in Section 120.56, Florida Statutes, which attacks certain memoranda received by the Petitioner on July 24, 1980, directed to him by officials within the Respondent agency, the text of which purportedly caused the Petitioner's termination or dismissal from employment for reason that the Petitioner had failed to gain the permission of the Respondent to run for public office in the State of Florida. The proceeding is promoted as a rules challenge.

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. Prior to the hearing in this cause, counsel for the Petitioner filed a Notice of Stipulation calling for the consolidation of this action with the Division of Administrative Hearings Case 80-1574, George Nelson v. State of Florida, Department of Agriculture and Consumer Services; and the Division of Administrative Hearings Case No. 80-1925-R, George Nelson v. State of Florida, Department of Administration; and State of Florida, Department of Agriculture and Consumer Services. The Respondent objected to the Notice of Consolidation; however, this case was later consolidated in the course of the proceedings held in the aforementioned companion cases, and the December 5, 1980, hearing date for the present case was set aside.

    
    

17. The Petitioner in this cause has promoted this action based upon the claim that the Joint Exhibits Nos. 2 and 3, also referred to as Petitioner's Exhibits 2 and 3, constitute invalid exercises of delegated legislative authority within the meaning of Subsection 120.56(1), Florida Statutes, for reason that the aforementioned items were not duly promulgated nor published in the manner provided by law. The Petitioner also contends that there was no authority to promulgate the policies found in the aforementioned memoranda and that the policy stated is irrational.

    
    

18. To be successful in his claim, the Petitioner must first demonstrate that the subject memoranda, Exhibits Nos. 2 and 3, are rules within the meaning of Subsection 120.52(14), Florida Statutes. 1/ An examination of these documents in the context of the testimony offered by John M. Bethea, Director of the Division of Forestry, leads to the conclusion that these items are not rules but are policy statements of an incipient nature. This conclusion is reached because the action taken in the preparation of Exhibit No. 2, as authored by Bethea, and Exhibit No. 3, authored by District Forester Wood, in keeping with the authority from Bethea; are interpretations given on the question of the agency's responsibility to administer the Department of Administration's rules dealing with the opportunity for a State employee to campaign for and hold local public office. This interpretation is within the discretion of the Director of the Division of Forestry and is done on a case-by-case basis and, notwithstanding Bethea's Philosophical bent toward denying requests by his employees to run for such local office, he has not foreclosed the possibility that such permission may be granted in the future. Therefore, the pronouncements made in Exhibits Nos. 2 and 3 are not of general applicability, and are not rules. As a consequence, the Petitioner's challenge to Exhibits Nos. 2 and 3, the memorandum of Bethea dated July 21, 1980, and the memorandum of Wood dated July 24, 1980, respectively, are not rules and the challenge to these documents fails. See Dept. of Commerce v. Matthews Corp., 358 So.2d 256 (1st DCA Fla. 1978) and McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (1st DCA Fla. 1977).

It is, therefore, ORDERED:

That the rules challenge offered through the present Petition is DENIED.

2/

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

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1980.

ENDNOTES

1/ "(14) '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 of a rule. The term does not include: . . ."

2/ The parties to this action have offered Proposed Findings of Fact, conclusions of law and a Recommended Disposition in this action. These proposals and recommendations have been reviewed prior to the entry of this Order. To the extent that the proposals and recommendations are consistent with the Order, they have been utilized. To the extent that the proposals and recommendations do not conform to the Order, they are hereby rejected.

COPIES FURNISHED:

Stephen J. Keller, Esquire Patterson and 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

Carroll Webb, Executive Director

120 Holland Building Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

ADDENDUM

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

================================================================= AGENCY ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

GEORGE NELSON,

Petitioner,

vs. CASE NO.: 80-2049R

STATE OF FLORIDA, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Respondent.

/

FINAL ORDER

The Department of Agriculture and Consumer Services, by and through DOYLE CONNER, Commissioner of Agriculture, hereby adopts and incorporates by reference the Recommended Order dated December 19, 1980, a copy of which is attached here to and made a part hereof. DONE AND ORDERED in Tallahassee, Florida, this 5th day of February, 1981.

DOYLE CONNER

Commissioner of Agriculture

Docket for Case No: 80-002049RX

Orders for Case No: 80-002049RX