ORETA R. LUCAS, )
vs. ) CASE NO. 83-2189RX
Respondent. )
Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this rule challenge proceeding on October 28, 1983, in Tallahassee, Florida.
For Petitioner: Richard T. Donelan, Jr., Esquire
For Respondent: William A. Frieder, Esquire
Whether Department of Administration, Division of Retirement Rule 22B- 1.04(6)(e)4 and Memorandum 81-60, dated December 23, 1981, are invalid exercises of delegated legislative authority.
By an amended petition filed with the Division of Administrative Hearings on August 22, 1983, petitioner Oreta R. Lucas ("petitioner") attacks the validity of respondent Department of Administration, Division of Retirement ("Division") Rule 22B-1.04 (6)(e)4, Florida Administrative Code, (the "challenged rule") and Memorandum 81-60, dated December 23, 1983 (the "challenged memorandum"). Petitioner alleges that the challenged rule lacks statutory authority because it excludes "temporary" instructional personnel from membership in the Florida Retirement System." She further alleges that the challenged memorandum is an agency statement of general applicability which interprets Chapter 121, Florida Statutes (1981), and the challenged rule, but that it was not adopted as a rule and is, therefore, invalid.
The Division filed a motion to dismiss or abate, which was denied. The parties waived the time limits of Section 120.56 and hearing was set for October 28, 1983.
At hearing, petitioner testified on her own behalf. The Division presented the testimony of Virginia Bryant, Tom Wooten, and Douglas Mann. Petitioner's Exhibits "A" and "B," and respondent's Exhibit "A" were received into evidence.
The parties filed post-hearing proposed findings of fact and conclusions of law by December 6, 1983.
Based on the evidence presented, the following facts are determined: FINDINGS OF FACT
As initially adopted effective July 1, 1979, Rule 22B-1.04(6)(e) 4 read:
Temporary Part-Time Instructors (persons who are appointed for one semester at a time to teach less than nine credit hours in an educational or vocational institution)
(Respondent's Exhibit A)
Effective July 1, 1980, Rule 22B-1.04(6)(e) 4 was amended to read as follows:
Temporary Instructional Personnel (persons appointed to positions which are established with no expectation of continuation beyond one quarter, one semester, or one trimester at a time to teach in a community college, public school, or vocational institution).
(Respondent's Exhibit A)
No public hearing was requested or conducted in connection with this amendment.
The challenged memorandum, entitled "Adult Education Instructors/Clarification of Florida Retirement System (FRS) Membership Rights," addressed to "District School Boards and Community Colleges" and dated December 23, 1981, was not adopted as a rule in accordance with the rulemaking procedures of Section 120.54, Florida Statute's (1981)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. $120.56, Fla.Stat. (1981).
Petitioner has standing to challenge the rule and memorandum at issue. They provide the basis for the Divisions's decision to remove her from the Florida Retirement System--a free-form decision which is now the subject of a separate Section 120.57(1) proceeding. She is thus "substantially affected" within the meaning of Section 120.56(1), Fla.Stat. (1981).
The Challenged Rule. When an agency committed with statutory authority to implement a statute has construed the statute in a permissible way, that interpretation must be sustained though another may be possible or even, in the view of some, preferable. Department of Administration v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA 1982); State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241-2 (Fla. 1st DCA 1981)
Rulemaking is a quasi-legislative function. Agrico Chemical Co. v. State, etc., 365 So.2d 759 (Fla. 1st DCA 1979). When exercising this power, agencies have wide discretion and their actions are entitled to judicial deference. Florida Commission on Human Relations v. Human Development Center,
413 So.2d 1251, 1253-54 (Fla. 1st DCA 1982); Agrico Chemical Co. supra, at 762.
One who challenges the facial validity of a rule has assumed a heavy burden. He must show that the agency's interpretation of the statute in its charge is clearly erroneous or unauthorized. Department of Revenue v. Skop, 383 So.2d 678 (Fla. 5th DCA 1980); Boca Raton Publishing Co. v. Department of Revenue, 413 So.2d 106 (Fla. 1st DCA 1982); North American Publications v. Department of Revenue, 436 So.2d 954, 955 (Fla. 1st DCA 1983). In ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981), the court stated that "APA processes lend added strength to the principle stated by the Supreme Court in King v. Seamon, 49 So.2d 859, 861 (Fla. 1952)":
The contemporaneous construction placed upon
a statute by the officials charged with the duty of executing it should not be disregarded or overturned by this court except for the most cogent reasons, and unless clearly erroneous.
Measured by these principles, it is concluded that petitioner has failed to show that Rule 22B-1.04(6)(e)4 is clearly erroneous or unauthorized. Generally, Section 121.051(1)(a), Florida Statutes (1981), requires participation in the Florida Retirement System by all officers or employees of employers defined by Chapter 121. "Officers or employees include "any person receiving salary payments for a work performed in a regularly established position . . . ." (e.s.) $120.021(11) , Fla.Stat.(1981). "Employer" is defined to include district school boards. $121.021(10), Fla.Stat.(1981). But the legislature chose not to define "regularly established position," a vague phrase, susceptible to differing interpretations.
Instead, it delegated this task to the Division. Section 121.021(19) defines "prior service," as used in Chapter 121, as prior employment which, at the time it is claimed, "satisfies the requirement for a regularly established position, as defined by rules of the Florida Retirement System." (e.s.) The Division, responding to this charge, adopted a complex set of rules which define "regularly established position" by what it is, as well as what it is not, which
state general standards, then provide exceptions. First, Rule 22B-6.01 provides:
(40) REGULARLY ESTABLISHED POSITION--
A regularly established position in a state agency is a position which authorized and established pursuant to law and is compensated from a salaries appropriation pursuant to Sections 216.011(1)(o)1 and 2,
F.S. or an established position which is authorized pursuant to Subsection 216.262(1)a and b and is compensated from a salaries account in accordance with Section
3A-10.31 F.A.C. A regularly established position in a local agency (district school board, county agency, community college, city and special district) is an
employment position which will be in existence for a period of 4 or more consecutive months, except as provided in 225-1.04(6)(e). (e.s.)
Next, Rule 225-1.04(6) declares "temporary positions" (i.e. not regularly established positions) as ineligible for membership in the Florida Retirement System. Temporary positions are defined, in part, as
[A]n employment position . . . which is listed in 22B-1.04(6)(a) [the challenged rule] regardless of whether it will exist for 4 consecutive months or more. (e.s.)
22B-6.01(47), Fla.Admin.Code. Further, a temporary position in a local agency, which includes school boards, is:
An employment position which will not exist beyond four (4) consecutive calendar months; or
An employment position which is listed below in (a) regardless of whether it will exist beyond four consecutive months.
Section 22B-1.04(6)(b), Fla.Admin.Code.
Finally, Rule 22B-1.04(6)(a), of which subsection 4 is the rule under challenge, lists types of positions which are considered temporary for retirement purposes. The rule cautions that the list is incomplete and is to be used only as a guide in determining if an individual is filling a temporary position:
(e) The following types of positions in a local agency are considered temporary
positions for retirement purposes. This is not a complete list of temporary positions and should be used only as a guide, along with the definitions above, in determining if an individual is filling a temporary position.
* * * * *
4. Temporary Instructional Personnel (persons appointed to positions which are established with no expectation of
continuation beyond one quarter, one semester, or one trimester at a time to teach in a community college, public school, or vocational institution).
Relying on State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980), petitioner argues that since the term "temporary positions' is not found in Chapter 121, the Division cannot use it to define eligibility for membership in the Florida Retirement System; that, by doing so, the Division has exceeded its authority and has attempted, by rule, to modify a statute.
This argument is unavailing. The Division is free to define "regularly established position" by terms not found in Chapter 121. By adopting the challenged rule, the Division concluded that positions designated by local agencies as "Temporary Instructional Personnel," who have no expectation of continuing beyond one quarter, one semester, or one trimester at a time', are ordinarily temporary positions--not regularly established positions--and thus ineligible for membership in the Florida Retirement System. This conclusion has not been shown to be illogical or unreasonable; neither has it been shown how it conflicts with or is inconsistent with Chapter 121.
Petitioner's reliance on McTigue is misplaced. In McTigue, the statute, using plain and unambiguous terms, listed specific criteria for obtaining a license to practice midwifery. One of those criteria was that the applicant have cared for a specified number of mothers and newborn infants while under the supervision of a licensed physician. The agency, by rule, defined "physician" as a physician licensed in Florida. The court upheld a hearing officer's order invalidating the rule, stating:
By adding the requirement that the physician be a Florida physician the rule is an invalid exercise of delegated legislative authority because it modifies the statute
by adding an additional criterion to be met by the applicant. [Case citation omitted]
* * * * *
While there is obviously room for some rulemaking and regulation by the Department in connection with each of the alternative subsections, the Department is not authorized to add to or modify those provisions which spell out with particularity the criteria which must be met in order to be eligible
for a license. (e.s.) Id. at 456-57.
The statute in McTigue differs from the statute at issue here. There the statute spelled out with particularity all criteria for eligibility. Here, the Legislature spoke generally, then instructed the Division to provide particularity--by defining "regularly established position "--the key criterion for membership in the Florida Retirement System. The challenged rule, part of a
spate of complex rules, was adopted to carry out this legislative charge. It implements the statute and, on its face, neither adds to it nor contravenes it.
4. The Challenged Memorandum.
Agency statements which act as rules but are not formally adopted as such under Section 120.54, Florida Statutes (1981), are illicit rules and invalid. State Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); see, 120.52(14), Fla.Stat. (1981). Agency statements act as rules if they are generally applicable interpretations of law or policy; are virtually self-executing, intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Stevens, supra, at 296; McDonald v. Department of Banking and Finance, 346 So.2d
569 (Fla. 1st DCA 1977). On the other hand, statements intended to operate only as guidelines, subject in application to the discretion of the enforcing officer, are not rules and need not be adopted as such. Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981)
Agencies may, however, develop and adopt non-rule policy through adjudication. Florida Cities Water Co. v. Florida Public Service Commission,
384 So.2d 1280 (Fla. 1980). McDonald, supra, at 380 held:
The APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of Secion 120.54.
Although in some cases rulemaking is clearly preferable to ad hoc adjudication as a means of developing agency policy, the remedy is not to force rulemaking upon an agency but to carefully review orders announcing policy, and insist that the policy is convincingly explained and justified. As the courts stated in Anheuser-Busch Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182 (Fla. 1st DCA 1981):
But though we will ordinarily "withhold judicial imperatives" for rulemaking, in deference to a coordinate branch of government, we are bound to give full effect to the APA's "self-enforcing" incentives for rulemaking-- those requirements concerning orders by which "agencies will be pressed toward rulemaking by the necessity otherwise to explicate and
defend policy repeatedly in Section 120.57 proceedings. "
Hill v. School Board of Leon County, 351 So.2d 732, 733 (Fla. 1st DCA 1977)
More recently, in Barker v. Board of Medical Examiners, 428 So.2d 720, 722 (Fla. 1st DCA 1983), the First District Court of Appeal emphasized the incentives to rulemaking provided by Section 120.57 adjudicatory proceedings:
The time has long since passed (if ever it existed) that agency action was mechanically invalidated simply because no rule was in effect. Certain opinions from this court during our early experience with Florida's
1974 Administrative Procedure Act may have so indicated. See Price Wise Buying Group v.
Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977);
State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), but contrast Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977); Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977) ,cert. denied,
359 So.2d 1215 (Fla. 1978). Our academic endeavors in attempting to label the action either rule or nonrule to determine whether or not it fell within section 120.52(14)'s definition of a rule have now been largely discarded. There are, however, costs exacted upon an agency which avoids the rulemaking procedure provided by section 120.54, chief among those being that the agency may be required repeatedly to defend its nonrule policy decisions in each case.
State, Department of Administration v. Harvey, 356 So.2d 323, 326 (Fla. 1st DCA 1977)
This theme has also been emphasized in the context of Section 120.56 rule challenge proceedings. In Department of Highway Safety and Motor Vehicles
v. Florida Police Benevolent Association, supra, at 1302, the court reversed a hearing officer's order invalidating, as illicit rules, two general orders of the Department of Highway Safety and Motor Vehicles. In holding that the general orders were not rules but guidelines subject in application to the discretion of the enforcing officer, the court concluded:
In marginal rule challenges such as this, see also Hill v. Leon County Board of Public Instruction, 351 So.2d 732 (Fla. 1st DCA 1977),
cert. den., 359 So.2d 1215 (Fla. 1978), the public interest is now better served by permitting other incentives for rule making to operate in Sec. 120.57 proceedings.
[Citations omitted]
Measured by these standards, it is concluded that the challenged memorandum is not a rule within the meaning of Section 120.52(14), Fla.Stat. (1981)--and thus need not be promulgated as such. Petitioner has not shown that this memorandum has the effect of a rule, that it is virtually self-executing, intended by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Her contention that the memorandum is an illicit rule is, at best, a debatable proposition, rendering this a marginal rule challenge controlled by Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, et al., supra, ("[T]he public interest is now better served by permitting other incentives for rulemaking to operate in Sec. 120.57 proceedings.")
The announced purpose of the memorandum is to resolve confusion and clarify Rule 22B-1.04(6)(e)4, the challenged rule, which identifies "Temporary Instructional Personnel" in an admittedly incomplete listing of temporary positions. The memorandum does little more than restate the rule in different terms and, by reasonable inference, applies it to adult education instructors.
It openly announces the Division's interpretation--acted upon earlier by its removal of individual adult education instructors from the Florida Retirement system--that adult education instructor positions are, typically, temporary in nature and thus not regularly established positions. This is because there is "no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." (Petitioner's Exhibit B) This interpretation is consistent with, and fairly implied by, the language of the rule; it does not, and is not, in and of itself, intended to change existing rights and obligations.
Moreover, this memorandum--just as the rule--is intended for use as a guide in determining whether an individual employee fills a temporary or regularly established position. It expressly recognizes that some adult education instructors, depending on their particular employment relationships, may qualify as filling regularly established positions, while others may not.
As a guide, it does not determine, by its own effect, the rights of adult education instructors or otherwise have the direct and consistent effect of law. It implicitly recognizes that the decision whether an adult education instructor is filling a temporary or regularly established position is one involving judgment and discretion, which must be based on the peculiar facts of each case.
When an adult education instructor, or other employee, is aggrieved by the Division's decision on his or her eligibility, the remedy lies in Section
120.57 proceedings, where disputed facts may be determined, and the agency's interpretations of law may be challenged.
The parties' proposed findings of fact have been considered in preparing this order. To the extent the findings were not consistent with the weight of credible evidence, they have been either rejected, or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected.
That Petitioner's amended petition, challenging Rule 22B-1.04(6)(e)4 and Division Memorandum 81-60, dated December 23, 1981, is denied.
DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida.
R. L. CALEEN JR. Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984.
Richard T. Donelan, Jr., Esquire 2124 W. Kennedy Boulevard
William A. Frieder, Esquire Department of Administration Division of Retirement
Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Nevin G. Smith, Secretary Department of Administration
