H. TURNER, )
vs. ) CASE NO. 82-2568RX
) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF HIGHWAY PATROL, )
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 27, 1982, in Tallahassee, Florida. The issue for determination at the hearing was whether a memorandum dated August 10, 1982, and an attached form, on the subject of "Weekly Report of All Off-Duty Employment" constitutes a "rule" within the meaning of the Administrative Procedure Act and an invalid exercise of delegated legislative authority because it was never adopted or promulgated in accordance with that Act.
For Petitioner: Ben R. Patterson
For Respondent: Michael J. Alderman
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner L. H. Turner is a Highway Patrol Officer II with the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, having been employed since 1977.
By memorandum dated August 10, 1982, to Troop Commanders and Florida Highway Patrol Staff, the Acting Director of the Florida Highway Patrol, Roger
C. Collar, gave the following instructions:
Effective August 20, 1982, all off-duty employment, including self-employment, shall be reported by all uniformed personnel on a weekly basis to coincide with the weekly report of daily activity.
The first reporting period will be August 20-26, 1982, and the report shall
be submitted each week along with the trooper's weekly report of daily activity.
The attached sample reporting form will be used until permanent forms are developed.
The sample reporting form attached to the memorandum required personnel to list the starting and ending time of their "off-duty employment" on a daily basis, the number of hours worked and the Florida Highway Patrol vehicle miles. At the bottom of the form is a signature line, above which is written
I certify this is an accurate report of all off-duty employment (including self- employment) worked during the reporting period.
The form also requires the signature of the "immediate supervisor" after the word "reviewed."
The instructions contained in this August 10, 1982 memorandum are intended to apply to all uniform members of the Florida Highway Patrol. Failure to file a weekly report of off-duty employment or the filing of an inaccurate report would subject the employee to discipline for insubordination.
Article XIII of the current collective bargaining agreement between the State of Florida and the Florida Police Benevolent Association pertains to employment outside State government. The Agreement requires advance approval for out- side employment, and provides that approval will not be unreasonably withheld as long as such employment does not conflict with the employee's State employment or with the agency's procedures limiting outside employment. With regard to off-duty police employment, Article XIII provides that approval will be granted if it does not constitute a conflict of interest, does not interfere with the employee's primary duties, is within the employee's jurisdiction and scope of employment, and as long as all mileage placed on a State automobile is paid for by the employee at the statutory mileage rate.
General Order Number 19, adopted by reference in Rule 15B-11.03, Florida Administrative Code, contains provisions relating to prohibited acts which may constitute a conflict of interest, including, in certain instances, the acceptance of other employment or other business or professional activity. Paragraph 15 of General Order Number 19 requires a written request and authorization before an employee may accept "part-time employment outside of this Department." The request for outside part-time employment must include a statement of the nature of duties, the approximate hours of duty contemplated
and the name and address of the firm. Guidelines for part-time employment are listed. Paragraph 15(b) sets forth the procedures for approval of requests to be employed or compensated by more than one State agency or to hold employment during the normal working hours for which the employee is being compensated by the Department. Paragraph 15(c) contains guidelines for "off-duty police details." Among such guidelines is that an employee may only engage in up to twenty (20) hours per week of such off-duty police details, unless the employee is on annual leave for the week in question or receives approval for work in excess of twenty (20) hours 4 per week. There are no limitations on the hours per week which an employee may devote to employment other than "off-duty police details."
CONCLUSIONS OF LAW
The petitioner contends that the August 10, 1982, memorandum requiring a patrolman to submit a weekly report of all off-duty employment, including self-employment, substantially affects him, constitutes a "rule" and is invalid since it was never adopted or promulgated as a rule in accordance with the requirements of the Administrative Procedure Act. The respondent contends that petitioner lacks standing to bring this rule-challenge proceeding and that the memorandum is not a "rule," but is instead an "internal management memorandum" not subject to the rule-making requirements of the APA.
A "rule" is an "agency statement of general applicability that implements, interprets or prescribes law or policy." It includes
Any form which imposes any requirement or solicits any information not speci- ficially required by the statute or
by an existing rule. Section 120.52(14), Florida Statutes. A "rule" does not include
Internal management memoranda which
do not affect either the private interests of any person or any plan or procedure important to the public and which have
no application outside the agency issuing the memorandum. Section 120.52(14)(a) Florida Statutes.
These statutory definitions have been the subject of many judicial opinions. For example, the "bumping" guidelines of an agency are rules because they are virtually self-executing, State Department of Administrative v. Stevens, 344 So.2d 290 (Fla. 1st DCA,1977), and are "intended by their own effect to create rights, or to require compliance, or other-wise to have the direct and consistent effect of law." McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA,1977). Similarly, a university's statement of procedure to be utilized for the award of merit salaries and other pay increases is a "rule" which affects the private interests of each faculty member. Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA, 1981). On the other hand, a program for the manufacture of metal signs by inmates, while reflecting policy, is not a statement of policy and therefore is not a "rule." Department of Corrections v. McCain Sales of Florida, Inc., 400 So.2d 1301 (Fla. 1st DCA, 1981). And, statements prescribing standards of physical fitness for highway patrolmen and prescribing guidelines for supervisors in assessing discipline for deficiencies in patrolmen's conduct are not "rules," but are only guidelines, subject in application to the discretion of the
enforcing officer. As such, they are "internal management memoranda" and are exempt from rule-making requirements. Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA, 1981).
Applying to the memorandum and form challenged herein the statutory definitions of a "rule" and an "internal management memorandum," as further interpreted by judicial opinion, it is concluded that the challenged documents constitute a "rule" within the meaning and intent of the APA. The requirement that a weekly report of all off-duty employment be filed applies generally to every uniformed employee of the Division of Florida Highway Patrol. The documents impose a requirement and solicit information not specifically required by statute or existing rule. While the collective bargaining agreement and General Order Number 19 require an initial written request for approval of off- duty employment and require the employee to give to the agency information regarding the requested out-side employment, these documents do not require a continuing weekly report of outside employment activity. The only existing requirement for the filing of a report is the provision in the collective bargaining agreement relating to the employee's payment of mileage placed on State automobiles used in off-duty police employment. The weekly reporting directive is intended to require compliance, as in McDonald, and is self executing, as in Stevens. Although the completed forms resulting from the challenged directive are for internal use within the respondent Department, the requirement that an employee accurately report on a weekly basis what he does during his off-duty hours has a continuing impact upon him beyond the existing requirement that he request and receive initial approval for employment outside the Department. In addition, while existing guidelines and regulations contain a provision limiting the hours which may be devoted to off-duty police details, there is no such policy or directive regarding other types of employment or
self-employment. The challenged memorandum and form are not limited to off-duty police work. The requirement that a weekly report of off-duty or outside employment be filed, in addition to the initial request for approval, has the direct and consistent effect of law and is virtually self-executing to the extent that failure to comply with such a directive could subject the employee to disciplinary action. As such, it is a "rule" and affected persons, such as the petitioner, are entitled to have notice and input into its adoption and to the other procedural rule-making safe-guards of the APA.
As a uniformed Highway Patrolman who has an absolute right to engage in outside employment, or self-employment in his off-duty hours, subject to the existing lawful limitations on that right, petitioner is substantially affected by a "rule" which solicits additional information and requires compliance beyond existing rules and guidelines. He therefore has standing to challenge the validity of the rule in a proceeding pursuant to Section 120.56, Florida Statutes. A rule not adopted pursuant to the rule-making requirements of the APA is an invalid exercise of delegated legislative authority.
