STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEWART E. PARSONS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5313RX

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted on January 6, 1988, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: G. Steven Pfeiffer, Esquire

Fowler, White, Gillen, Boggs, Villareal & Banker, P.A.

101 North Monroe Street, Suite 910 Tallahassee, Florida 32301

For Respondent: Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

ISSUES AND INTRODUCTION

This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes, in which the Petitioner has challenged the validity of Rule 22A- 13.002(2), (3), and (4), Florida Administrative Code, as an invalid exercise of delegated legislative authority.

The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5321 and 87-5437. At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this final order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this final order.

FINDINGS OF FACT

1. The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career Service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS, if elected.

   
   

2. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied "... because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes.

   
   

3. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons' request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code.

   
   

4. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials.

   
   

5. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS.

6. The challenged rule provisions read as follows: 22A-13.002 Statements of Policy

   1. Section 110.233(4)(a) further provides

      that no employee shall hold or be a candidate for public or political office while in the employment of the state unless:

      1. The employee is seeking or holding a local public office and;

      2. Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration

      as involving no interest which conflicts or activity which interferes with his/her state employment.

   2. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee.

   3. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances:

      1. The office is a full-time office.

      2. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State.

      3. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies.

      
      

7. In its application of the challenged rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the challenged rule provisions as rebuttable presumptions, rather than as conclusive presumptions.

   
   

8. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.56, Fla. Stat.

   
   

10. Section 110.233(4)(a), Florida Statutes, reads as follows:

    
    

    1. As an individual, each employee retains all rights and obligations of citizenship provided in the Constitution and laws of the state and the Constitution and laws of the United States. However, no employee in the career service shall:

       1. Hold, or be a candidate for, public 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. (emphasis added)

    
    

11. The underscored portion of the statute makes it possible for a state employee to do either or both of two things; one is to "be a candidate for" and the other is to "hold" a local public office. By the use of the word "or" in the last clause of the underscored portion of the statute, the clear meaning of the statute is that a state employee can seek approval to either "be a candidate for" or can seek approval to "hold" local public office, without having to seek or obtain approval for both the candidacy and the office-holding. By providing for approval of one or the other, the statute clearly envisions the possibility of approval of a request to become a candidate where the candidacy is one "involving no interest which conflicts or activity which interferes" with state employment, even though the holding of that same office would conflict or interfere with state employment. In this regard, it is significant to note that there is nothing in the statute that limits the scope of the statute to part- time offices. As a matter of simple logic, given the customary hours of government offices, nearly every full-time local public office would conflict with state employment because the employee/officeholder could not be in two places at the same time. Nevertheless, the statute allows employees to become candidates for such offices -- offices that the same statute does not, as a practical matter, permit them to hold. Such being the case, the statute clearly treats being a candidate for office and holding an office as separate and distinct circumstances, one of which may be approved without consideration of the other.

    
    

12. The Petitioner is not substantially affected by the portions of the challenged rules that relate to obtaining permission to hold office, because the Petitioner is not seeking permission to hold office. To the contrary, he has made it abundantly clear that if he is successful in his bid for public office, he will resign from his state employment. Therefore, the Petitioner does not have standing to challenge the portions of the rule that relate solely to obtaining permission to hold office.

    
    

13. Whether the Petitioner has standing to challenge the portions of the rule that relate to obtaining permission to become a candidate for local public office depends upon whether those portions of the rule affect his substantial interests. And that, in turn, depends upon whether the office of County Judge is a "local public office" within the meaning of Section 110.233(4)(a) , Florida Statutes.

    
    

14. In the recommended order issued today in DOAH Case No. 87-5321, I have made the following observations regarding the nature of the office of County Judge:

    
    

    The final, and crucial, matter to be addressed is whether the office of County Judge is a "local public office." The term "local public office" is not defined in

    either Section 110.233, Florida Statutes, or in Rule 22A-13.002. Given its plain and natural meaning, it would appear, as a general rule, to include all public offices at the municipal and county level. It appears to include the offices of Sheriff and School Board member. See Humphries v. Dept. of Highway Safety and Motor Vehicles, 400 So.2d 1311 (Fla. 1st DCA 1981), and Dept. of Administration v. Nelson, supra. And the evidence in this case shows that on at least one prior occasion both the Department of Health and Rehabilitative Services and the Department of Administration have approved the request of an employee who sought to become a candidate for the office of County Judge. Such prior approval notwithstanding, for the reasons which follow, the office of County Judge appears to be a "state" office as distinguished from a "local" office.

    First, the office of County Judge is not among the various county officers created by Article VIII of our State Constitution.

    Rather, the office of County Judge is provided for in Article V of the Constitution, along with the other state judicial officers. Second, while the territorial jurisdiction of a County Judge is normally restricted to the territorial limits of the county in which he has been elected, a County Judge can be assigned by the Chief Judge of his judicial circuit or by the Chief Justice of the Florida Supreme Court to perform judicial functions outside of the County Judge's home county. [Citations omitted.] Because it is a state office created in Article V of the Constitution and because the incumbent of the office may be called upon to perform duties in more than one county, the office of County Judge does not appear to be a "local public office." Accordingly, it is not an office for which permission to be a candidate can be authorized or approved under the proviso of the penultimate sentence of Section 110.233(4)(a), Florida Statutes.

    
    

15. The observations quoted in the immediately preceding paragraph are equally applicable to the disposition of this case. Because the Petitioner in this case in not seeking to become a candidate for an office that is a "local public office" within the meaning of Section 110.233(4)(a), Florida Statutes, he is not seeking to become a candidate for an office that is within the scope of the challenged rule provisions. Therefore, the challenged rule provisions do not affect the Petitioner's substantial interests and, because there is no effect upon his substantial interests, the Petitioner lacks standing to challenge the subject rule provisions. Absent standing, the Petition must, of course, be dismissed.

For the reasons set forth above, it is ORDERED:

That the Petition in this case is hereby dismissed in its entirety.

DONE AND ORDERED this 19th day of February, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.

APPENDIX TO FINAL ORDER, CASE NO. 87-5313RX

The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties to this case.

Findings Proposed by the Petitioner:

Paragraph 1 and the three unnumbered paragraphs immediately following Paragraph 1 are all accepted.

With the exception of the first two sentences, Paragraph 2 is rejected as irrelevant to the issues raised in this rule challenge petition. (These proposed findings have been made in the related litigation in Case No. 87-5321.)

Paragraph 3 is accepted with the deletion of some details which are more nearly conclusions of law.

The two unnumbered paragraphs immediately following Paragraph 3 are rejected as irrelevant to the issues raised in this rule challenge petition. (These proposed findings have been made in the related litigation in Case No. 87-5321.)

Paragraph 4, Paragraph 5, and the unnumbered paragraph immediately following Paragraph 5 are rejected as constituting argument or discussion of the issues, rather than proposed findings of fact. (The omission of this argument/discussion from the findings of fact is not a ruling on its merits, but merely a determination that it belongs, if anywhere, somewhere other than in the findings of fact.)

Paragraph 6 is accepted in part and rejected in part. It is accepted from the beginning through the quotation of the text of the challenged rule provisions. The remainder of the paragraph is rejected as constituting argument or discussion of the issues, rather than proposed findings of fact.

Findings Proposed by the Respondent:

Paragraphs 1, 2, 3, and 4 are accepted.

The first two sentences of Paragraph 5 are accepted in substance as reflecting the Department's interpretation and application of its rule. The remainder of Paragraph 5 is rejected as an unnecessary summary of rule provisions.

COPIES FURNISHED:

G. Steven Pfeiffer, Esquire Adis Vila, Secretary

Fowler, White, Gillen, Boggs, Department of Administration Villareal & Banker, P.A. 435 Carlton Building

101 North Monroe Street Tallahassee, Florida 32399-1550 Suite 910

Tallahassee, Florida 32301

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

John L. Pearce, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32303

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-005313RX

Orders for Case No: 87-005313RX