STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5634RU

) DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James W. York, held a prehearing conference in this cause on September 17, 1991. During the prehearing conference, consideration was given to Respondent's Motion in Opposition to the Petition challenging certain procedures of the Department of Education pursuant to Section 120.56, Florida Statutes, to Respondent's memorandum of law in support of said motion, and to Petitioner's written response to the motion. The parties also presented oral argument in support of their respective positions.

APPEARANCES

For Petitioner: William R. Muldrow, pro se

3070 Waterford Drive

Tallahassee, Florida 32308

For Respondent: Charles Ruberg, Esquire

Assistant General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400 STATEMENT OF THE ISSUES

The issue to be determined is whether certain procedures of the Respondent Department of Education are "rules" as defined by Chapter 120, Florida Statutes, therefore subject to challenge pursuant to Section 120.56, Florida Statutes.

PRELIMINARY STATEMENT

The underlying facts which form the genesis of this proceeding involve a grievance filed by a co-worker in which allegations were made that the Petitioner entered the co-worker's work area and used abusive and threatening language directed to her. Pursuant to the Department of Education Grievance Procedures, the grievance was investigated by a committee which recommended that the Petitioner be reprimanded. The Deputy Secretary of the Department adopted the committee recommendation and informed the Petitioner that a written reprimand would be issued to him on September 9, 1991.

By his First Amended Petition, filed on September 5, 1991, Petitioner seeks an administrative determination of the invalidity of certain provisions of the Department of Education Manual of Policies and Procedures, specifically Appendix 6-L entitled "Disciplinary Action Procedures for Career Service Employees" and Appendix 6-M entitled "Department of Education Grievance Procedures."

The Petitioner alleges, in pertinent part, that Appendices 6-L and 6-M of the manual are invalid pursuant to Section 120.54 and 120.56, Florida Statutes, based upon the following grounds:

1. The challenged procedures are invalid exercises of delegated legislative authority in that the procedures modify or contravene specific provisions of law implemented (citing Section 110.201, Florida Statutes).

   
   

2. The procedures are arbitrary and capricious.

   
   

3. The procedures are vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency.

   
   

4. The agency materially failed to follow applicable rulemaking procedures set forth in Section 120.54, Florida Statutes.

On September 12, 1991, Respondent filed its Motion in Opposition to the Petition. In its motion and in oral argument the Respondent concedes that the Department did not formally adopt the challenged procedures as rules pursuant to Section 120.54, Florida Statutes, and argues that there is no legal requirement that the procedures be so adopted. Respondent contends that the challenged policy and procedure statements are internal management memoranda and, as such, are exempt from Chapter 120 rulemaking provisions as a matter of law.

Upon receipt of Respondent's motion in opposition to the Petition, a telephone conference was scheduled between the undersigned and the parties. During the telephone conference, a discussion was held regarding the issues raised by the Petition and the Respondent's motion as well as the general status of the case. As a result of this conference a prehearing order was issued which generally provided as follows:

1. Parties were required to certify that all filings in the case had been served on the other party (Petitioner had neglected to serve Respondent with the Petition or the First Amended Petition).

   
   

2. Respondent was required to file a memorandum of law in support of its Motion in Opposition to the Petition and Petitioner was given the opportunity to file a response to said motion by September 17, 1991.

   
   

3. Parties were required to file their respective witness lists with a summary of anticipated testimony by the same date.

   
   

4. The final hearing previously scheduled for September 17, 1991, was cancelled and a prehearing conference was scheduled for that date.

   
   

5. The parties were advised that each would have the opportunity to present oral argument in support of their respective positions on all pending motions at the prehearing conference.

Respondent filed its memorandum of law in support of its motion as required by the prehearing order and Petitioner filed a timely response. After reviewing

the pending motions and response thereto, and hearing the argument of the parties, the undersigned determined that the Respondent's motion in opposition to the Petition had merit. The Petitioner stated that he had not had an opportunity to consider the case law cited by the Respondent in its memorandum of law and the undersigned issued an Order to Show Cause as to why the Petition should not be dismissed. Petitioner was given ten days in which to consider the case law cited by Respondent and to respond to the show cause order. The case was placed in abeyance pending resolution of the show cause order and all witnesses were excused from subpoena.

After the prehearing conference, Respondent filed copies of the challenged procedures as exhibits to its memorandum of law and these exhibits were received and admitted without objection.

Petitioner filed a timely response to the Order to Show Cause and that response was reviewed and considered by the undersigned.

FINDINGS OF FACT

The following findings of fact are made based upon an examination of the challenged procedures:

1. Appendix-L of the Respondent's Manual of Policies and Procedures (the Manual) is entitled "Disciplinary Action Procedures For Career Service Employees." One of the stated purposes of this procedure is to recommend standard ranges of disciplinary actions for various deficiencies and offenses and to encourage consistency in disciplining department employees. Appendix-L is effective by its terms only to provide guidelines, subject in application to the discretion of Department of Education supervisors. Non discretionary directives contained in Appendix-L generally instruct the supervisor regarding documentation of action taken and check list items to ensure completeness and consistency once a decision has been made regarding disciplinary action. See, Respondent's Exhibit A.

   
   

2. Appendix-M of the Manual is entitled "Department of Education Grievance Procedures." These procedures apply only to conditions in the workplace and within the Department of Education. While Appendix-M does contain mandatory language, this language is primarily directed toward processing a grievance once an employee elects to file and pursue one. The possibility of a co-worker's grievance resulting in disciplinary action against the Petitioner does not result from the challenged procedure but from the ultimate discretion exercised by the supervisory authority based upon facts ascertained during the grievance process. See, Respondent's Exhibit B.

   
   

3. Neither of the challenged Appendices to the Manual are self executing nor do these procedures purport, in and of themselves, to create or adversely affect any private interests or rights of the employees involved.

   
   

   CONCLUSIONS OF LAW

   
   

   Jurisdiction

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and of the parties. Sections 120.54 and 120.56, Florida Statutes. Further, the Division has jurisdiction and authority to determine, as a threshold guestion, whether a directive or guideline challenged is a rule

   pursuant to statutory definition. State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

   
   

5. Respondent correctly argues that the challenged procedures in this case are not "rules" within the statutory definition of that term. Section 120.52(16), Florida Statutes, provides as follows:

   
   

   (16) "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:

   (a) 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.

   
   

6. The agency procedures challenged here are not self executing, have no application outside the agency, and simply prescribe guidelines for supervisors in processing grievances and assessing discipline for deficiencies in conduct. The procedures are effective in themselves only as guidelines, subject in application to the discretion of the enforcing supervisor. The contested procedures therefore qualify for the previously cited internal management memoranda exemption from rulemaking requirements pursuant to Section 120.54, Florida Statutes, and are not "rules" subject to challenge pursuant to Section 120.56, Florida Statutes. Department of Highway Safety and Motor Vehicles vs. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981).

   
   

7. In the Petition, and throughout this proceeding, Petitioner has essentially attempted to raise issues of disputed fact regarding the events which led to his written reprimand, to challenge the Respondent Department1s decision to issue the reprimand to him, and to raise the issue of the application of the procedure. Even if the challenged procedures were not subject to the statutory "internal management memoranda" exemption, the Division of Administrative Hearings has no jurisdiction to resolve such issues in a rule challenge proceeding.

   
   

8. Finally, the Petitioner argues that the procedures in question allow for unfair and discriminatory treatment in violation of his constitutional right to due process and that the procedures substantially affect his "liberty interests." A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Long vs. DOA, 428 So.2d 688 (Fla. 1st DCA 1983), Cook vs. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982). Petitioner's constitutional allegations are therefore not considered in this Final Order.

   
   

9. Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED:

That the Petitioner's Petition for Determination of Validity of Existing Rules is DISMISSED.

DONE and ORDERED this 18th day of October, 1991, in Tallahassee, Florida.

JAMES W. YORK, 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 19th day of October, 1991.

COPIES FURNISHED:

William R. Muldrow 3070 Waterford Drive

Tallahassee, Florida 32308

Charles Ruberg, Esquire Assistant General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 91-005634RU

Orders for Case No: 91-005634RU