STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )

)

Petitioner, )

)

vs. ) CASE NO. 88-4585

)

LORENZO THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on December 13, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondent should be deemed to have resigned his position with the Department of Health and Rehabilitative Services because of his filing for and running for public office.

APPEARANCES

For Petitioner: Anthony N. DeLuccia, Jr., Esquire

District Legal Counsel HRS District VIII

Post Office Box 06085 Ft. Myers, Florida 33906

For Respondent: Layon F. Robinson, II, Esquire

442 Old Main Street Bradenton, Florida 34205

BACKGROUND INFORMATION

On August 1, 1988, Respondent Lorenzo Thomas received a memorandum from Delores G. Dry, District Administrator for Department of Health and Rehabilitative Services, (Department) District VIII, stating that because Respondent, Thomas, had filed his candidacy for the Manatee County Commission, he had resigned his position with the Department. On September 14, 1988, the Respondent filed a Petition with the Department contesting that determination and requesting formal hearing. The file was thereafter forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer, and on October 3, 1988, the undersigned set the case for hearing on December 13, 1988, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of John H. Johnston, District VIII Budget Officer, and Delores G. Dry, District VIII Administrator and introduced Petitioner's Exhibits 1 through 6. Respondent testified in his own behalf and introduced Respondent's Exhibits A through D.

No transcript was filed but both parties submitted proposed Findings of Fact which have been ruled upon in the Appendix to this recommended Order.

FINDINGS OF FACT

1. In February, 1984, Respondent herein, Lorenzo Thomas, sought and received official permission to seek the office of Manatee County Commissioner pursuant to Section 110.233(4)(a), Florida Statutes. He thereafter filed for election and was defeated.

   
   

2. At the time, Respondent was serving as a volunteer coordinator with District VIII, a full-time Career Service position, and the office sought was a partisan office. The office held by Respondent at the time, that of volunteer coordinator, was at least partly funded by federal funds and under the provisions of the Federal Hatch Act, he was precluded from seeking partisan public office. This determination, however, was not communicated to the Respondent even though it was contained in a memorandum dated August 22, 1984 from C. T. Clagett, District Personnel Officer, and addressed to the Respondent at his office symbol. Respondent, therefore, believed that his application had been approved without qualification.

   
   

3. In January, 1988, Respondent decided to again run for election to the office of Manatee County Commissioner, a position which remained a partisan political office. At the same time, he continued to occupy his position as a volunteer coordinator with the Department. His position was funded at least 25%, from federal funds.

   
   

4. Respondent did not submit a request to his District Administrator, Ms. Dry, but discussed the matter with his immediate supervisor, Mr. Ward, and with several other coworkers and individuals. No one to whom, he spoke, indicated to him or raised the possibility that he would be ineligible to run because of the partial federal funding of his position or that if he ran for partisan political office, he would, by operation of law, be deemed to have resigned. Department regulation 60-30, dated November 15, 1982, which deals with political activities at subparagraph 4c(6), identifies as prohibited political activity, candidacies for partisan elective office by employees of the Department whose principal employment is in connection with an activity which is funded wholly or in part by federal funds or grants and subject to the Federal Hatch Act.

   
   

5. Relying on the mistaken belief that his prior application had been properly approved, and believing that none of the circumstances which pertained at the time of the 1984 application had changed, Respondent failed to submit a new application relating to his new campaign for office in 1988.

   
   

6. On July 20, 1988, Delores Dry, the District VIII Administrator, while in Tallahassee, received information that Respondent had initiated a campaign for local partisan office and on her return to her office on July 21, 1988, met with Respondent concerning it. When Respondent indicated he contemplated filing for office she informed him that he occupied an office covered by the Hatch Act and since the office sought was a partisan political office, he might be precluded from lawfully running. She also advised him that if she had the authority to do so, she would grant him a waiver, but that she did not have that authority. She advised State Senator Woodson of the same thing. Woodson, in turn, passed this information on to Thomas.

   
   

7. July 22, 1988, was the last day for filing for election and on that date, prior to receipt of approval from his supervisor, Mr. Thomas filed for

   election to the Manatee County Commission and submitted his request to Ms. Dry through his immediate supervisor, Mr. Ward. Mr. Ward, in turn, forwarded the application with a recommendation for approval. The application was received by Ms. Dry on July 26, 1988 and Ms. Dry, who had done her research in the interim, denied the application and returned it to Respondent by mail that same day. She is satisfied he did not intend to violate the rules and that his mistake was an honest one.

   
   

8. At no time was Mr. Thomas advised by anyone in authority that his application had been or would be approved. He believed, that his prior application approval, which he had not been advised was erroneously approved, would pertain again. However, the 1988 election was a separate election entirely from that for which he had received prior approval. He did not apply until the day of filing and his filing was accomplished prior to receipt of approval from Ms. Dry. He was not misled by anyone in authority with the Department, nor could he reasonably believe, based on his conversations with Ms. Dry or Senator Woodson, that approval was forthcoming

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

10. Candidacy for public office by state employees is governed by the provisions of Chapter 22A-13, F.A.C. which implements the provisions of Section 1110.223, Florida Statutes. Chapter 22A-13.001(1), citing Section 110.223(4)(a), provides:

    
    

    no employee shall take any active part in a political campaign while on

    duty or within any period of time during which he/she is expected to perform services for which he/she receives compensation from the state.

    
    

11. In addition, subparagraph (5) of the cited Rule provides:

    
    

    Employees whose positions are subject to the Federal Hatch Act may not become candidates in any partisan election.

    Each agency head shall determined which of that agency's employees are subject to the Act.

    
    

12. HRSR 60-30 provides that an employee who desires to run for local public office must submit notification of intent to run for election to his supervisor in writing. The rule also incorporates the provision of the rule regarding the disqualification of employees whose positions are subject to the Hatch Act.

    
    

13. Rule 22A-13.004, F.A.C. states:

    
    

    An employee who qualifies as a candidate for or holds public office without obtaining prior [emphasis supplied] approval according to this chapter shall be ineligible for continued state

    employment and shall be deemed to have resigned without the right to appeal to the Public Employees Relations Commission...

    
    

14. The employee's contest of the agency's denial of his request shall be heard in a Section 120.57, Florida Statutes, proceeding.

    
    

15. Here, Mr. Thomas contends that because his earlier candidacy was approved, and because both his job and the office sought are the same as in the earlier effort, there was no need for him to seek approval again. He discussed this with both Ms. Dry, the District Administrator and Mr. Ward, the Subdistrict Administrator who agreed with him.

    
    

16. However, four years had elapsed since his prior candidacy and that though the office sought was the same, it was a different election. Also, his job is now subject to the Hatch Act which, since the office sought was to be filled by partisan election, renders him ineligible to run. He did not submit his request until he heard that his candidacy was creating problems for him and for the Department. He filed his candidacy officially the same day he submitted his request for permission and before receiving the required permission. Though his mistake may have been honest it was, nonetheless, a mistake and it was not reasonable for him to have relied on the mistaken belief he did not have to again apply.

    
    

17. Respondent also seeks to rely on a prior remark allegedly made by Ms. Dry to the effect that if he ran and, thereby placed his job in jeopardy, he would be permitted to resign or be granted a waiver, depending on the circumstances. The disqualification due to Hatch Act status cannot be waived. Though he might have been permitted to resign, that is exactly what occurred by operation of law. The Department contends by this action that Respondent is deemed to have resigned and under the circumstances of this case, the Department's position is correct. Nelson v. State Department of Administration, 424 So.2d 852 (1 DCA 1983).

    
    

18. In his Proposed Findings of Fact and Conclusions of Law, Respondent urges that because of the Department's representations and prior actions, he was led to believe that he could lawfully file for office and that the Department is now estopped from denying him permission to resume his position as volunteer coordinator. Respondent's position is not well taken. Circumstances in this case are different from those in his prior bid for office. As a result, the doctrine of estoppel does not apply.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, LORENZO THOMAS, be deemed to have resigned his position with the Department of Health and Rehabilitative Services effective upon receipt of the District VIII Administrator's memorandum to him of August 1, 1988.

RECOMMENDED this 12th day of January, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4585

The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted herein.

FOR THE PETITIONER:

1. & 2. Accepted and incorporated herein

1. Accepted and incorporated herein

2. Petitioner advised his agency in writing of his candidacy the day he filed for election.

3. & 6. Accepted and incorporated herein

7. & 8. Accepted and incorporated herein FOR THE RESPONDENT

1. & 2. Accepted and incorporated herein

3. & 4. Accepted and incorporated herein

5. - 7. Accepted and incorporated herein

8. & 9. Accepted in part but rejected as to the finding that Ms. Dry agreed to unequivocally grant Petitioner a waiver. Her agreement was conditioned upon her having the authority to waive, which she did not have.

1. Accepted in part. Petitioner was not assured of any waiver. His interpretation of Ms. Dry's comments in that light was unjustified.

2. Rejected in that Petitioner's reliance on the 1984 letter and the comments of Mrs. Dry and Mr. Ward was not reasonable. The rule clearly requires advance approval. He did not have it.

COPIES FURNISHED:

Anthony N. DeLuccia, Jr., Esquire District Legal Counsel

HRS District VIII Post Office Box 06085

Ft. Myers, Florida 33906

Layon F. Robinson, II, Esquire

442 Old Main Street Bradenton, Florida 34205

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 88-004585

Orders for Case No: 88-004585