STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA COOK ALLEN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6750RU

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

This matter came on for hearing on January 7, 1992, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings. At hearing, the parties waived the 30-day time limit for filing the final order, and agreed to file proposed orders within 20 days of the court reporter's certificate, which was executed on January 16, 1992, as it turned out.

The transcript was filed at the Division of Administrative Hearings on January 21, 1992, and time for filing proposed orders was subsequently extended to February 24, 1992. Respondent but not petitioner filed a proposed final order. On February 24, 1992, respondent filed its corrected proposed final order. Rulings on proposed findings of fact by number appear in the attached appendix.

APPEARANCES

For Petitioner: James C. McCarty, Esquire

Post Office Box 2883 Gainesville, Florida 32602

For Respondent: Robert L. Powell, Sr., Esquire

407 Building One

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

Whether HRS "regulation" 60-10 s.5(a)(2) or any portion thereof amounts to an invalid exercise of delegated legislative authority in that it comprises a "de facto" rule never formally promulgated?

PRELIMINARY STATEMENT

This case arises in the wake of a career service proceeding before the Public Employees Relations Commission which eventuated in a final order on August 5, 1991. Linda Cook Allen v. Department of Health and Rehabilitative Services, No. CS91-033.

In a footnote to the recommended order entered in No. CS91-033 on May 6, 1991, PERC Hearing Officer Rix wrote:

This is not the proper forum for Allen to challenge the validity of HRS Regulation 60-10, Section 5 A.(2). Heretofore, Allen has not manifested an intent to file a

petition with the Division of Administration Hearings pursuant to Section 120.56, Florida Statutes (1989), challenging the validity of the regulation. If such a request is made by Allen within the twenty-day period for filing exceptions, I recommend that the case be stayed pending disposition of any rule challenge petition filed by Allen. See, e.g., Barkley v. Department of Labor and Employment Security, 2 FCSR 305 (1987).

On May 28, 1991, petitioner filed a petition for administrative determination of rule by hearing officer with the Public Employees Relations Commission.

Only on October 23, 1991, was the petition for administrative determination of rule by hearing officer filed with the Division of Administrative Hearings.

An order of assignment was entered on October 25, 1991, and final hearing was scheduled for November 18, 1991, then continued on the parties' joint motion for continuance. By order entered March 4, 1992, respondent's motion to substitute corrected exhibit was granted.

FINDINGS OF FACT

1. In recommending that the Public Employees Relations Commission uphold HRS' demotion of petitioner Linda Cook Allen, PERC Hearing Officer Rix wrote:

   
   

   In the instant case, HRS demoted Allen without conducting a special performance appraisal as required by rule 22A-9.009. Rather, Allen was demoted pursuant to HRS Regulation No. 60-10 Section 5(a)(2). This section provides that:

   
   

   As related to this regulation, an employee shall not be demoted as a form of disciplinary action. Rather, this type of action may be used to remove an employee from his class when the employee fails to perform his assigned duties at a satisfactory level.

   There must be specific documented reasons for such demotion supported by employee performance appraisals and/or documented counseling sessions.

   
   

   See (Exhibit A-10). In short, Powell evaluated Allen's performance over a nine- week period and then initiated action to demote Allen because Powell perceived that Allen was not carrying out her job duties competently. The evidence demonstrates that

   Powell conducted several counselling sessions with Allen over the nine-week period, which Powell documented pursuant to the above-cited regulation.

   
   

   Recommended Order, page 11. Adopting the Recommended Order, PERC upheld petitioner's demotion from pay grade 19 to pay grade 15, on account of numerous performance deficiencies.

   
   

2. The letter HRS sent Ms. Allen notifying her of her demotion made no mention of HRS Regulation No. 60-10. HRS does not have any policy or general practice to rely on "documented counseling sessions" in lieu of employee evaluations before demotions.

   
   

3. On September 17, 1990, HRS had in fact prepared a written employee appraisal detailing petitioner's derelictions as a protective investigator, HRS Exhibit No. 3, but petitioner prevailed on a grievance she pursued in connection with the evaluation.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of a challenge to an "agency statement of general applicability that implements, interprets or prescribes law or policy," Section 120.52(16), Florida Statutes (1991) which has never been promulgated as an administrative rule. Since the present proceedings began before March 1, 1992, Section 120.56, Florida Statutes (1991) applies.

   See Section 120.535(8), Florida Statutes (1991), declaring Section 120.535, Florida Statutes (1991), the exlusive remedy after March 1, 1992.

   
   

5. But the Administrative Procedure Act explicitly exempts certain agency statements from rulemaking requirements, notably

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(16)(a), Florida Statutes (1991). The language in HRS Regulation 60-10 s.5(a)(2) challenged here falls within this exception, because it applies only within HRS and is not "self-executing." Barkley v. Department of Labor and Employment Security, 10 FALR 5273 (1987). See Department of Highway Safety v.

Florida Police Benevolent Association, 400 So.2d 1302 (1st DCA) pet. rev. den. sub. nom. Florida Police Benevolent Association v. Department of Highway Safety,

408 So.2d 1093 (Fla. 1981); Hill v. Leon County School Board of Public Instruction, 351 So.2d 732 (1st DCA 1977) cert. den. 359 So.2d 1215 (Fla. 1978).

RECOMMENDATION

It is, accordingly, ORDERED:

The petition for administrative determination of rule by hearing officer is denied.

DONE and ENTERED this 26th day of March, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1992.

APPENDIX

Petitioner's proposed finding of fact No. 1 was neither established nor refuted.

Petitioner's proposed findings of fact Nos. 2 through 7 and 11 through 15 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 8, 9 and 10 are properly conclusions of law.

Petitioner's proposed findings of fact Nos. 16, 17 and 18 pertain to subordinate matters.

COPIES FURNISHED:

James C. McCarty, Esquire

P.O. Box 2883 Gainesville, FL 32602

Robert L. Powell, Sr., Esquire Department of Health and

Rehabilitative Services

407 Building One 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 RULE 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: 91-006750RU

Orders for Case No: 91-006750RU