STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0946

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 7, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Mary C. Jackson,

representing herself 1406 Peg Lane

Orlando, Florida 32808

For Respondent: Laurie A. Lashomb, Esquire

Department of Health and Rehabilitative Services

District 7 Legal Office

400 West Robinson Street, Suite S827 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue in this proceeding is whether Petitioner should be permitted to run for office in the Florida House of Representatives without resigning her position as a state career service employee with the Department of Health and Rehabilitative Services.

PRELIMINARY STATEMENT

On December 27, 1993, Petitioner Mary C. Jackson, requested in writing to be permitted to run for the state legislature. A memorandum from Paul Snead, HRS District Administrator, to Ms. Jackson, denied her request and cited a career service rule prohibiting Hatch Act employees from running for office while employed by the state. Ms. Jackson made a timely request for a chapter

120 hearing on the proposed agency action of denial.

At the hearing, the material facts were substantially admitted. Ms.

Jackson testified, and no other witnesses were presented by either party. Two memoranda were received in evidence as Joint exhibit #1: a memo on the Nelson

case from then DOA General Counsel, Daniel Brown dated 1/28/83; and a memo from then District Administrator Lucy Hadi, denying another employee's request to run for the state legislature, dated 4/6/88. Official recognition was taken of Public Law 103-94, the 1993 amendments to the federal Hatch Act, and the legislative history of the amendments.

The transcript was not prepared. Ms. Jackson filed her proposed recommended order on April 22, 1994; HRS, through counsel, filed written closing argument on April 25, 1994. The findings of fact proposed by Ms. Jackson are rejected as argument, or are addressed in the conclusions of law. Ms. Jackson's proposed finding #4, is specifically rejected as contrary to the Florida Constitution and statutes; that is, she proposes a finding that the office she seeks is a local, rather than state office.

FINDINGS OF FACT

1. Mary C. Jackson (Ms. Jackson) is a career service employee of the Florida Department of Health and Rehabilitative Services (HRS) in HRS District VII, in Orlando, Florida. She has been employed by HRS for twenty years.

   
   

2. Ms. Jackson is, and has been at all times relevant here, a human services program analyst, a non-supervisory position in the District VII background screening office. It is uncontroverted that the program in which Ms. Jackson is employed is funded by federal grant monies and is covered, therefore, by the federal Hatch Act.

   
   

3. Ms. Jackson followed the proper procedures in requesting permission to run for the state legislature, for the office of State Representative. There is no dispute that this is a partisan political office.

   
   

4. Paul Snead, Jr., HRS, District Administrator for District VII, denied Ms. Jackson's request with a memorandum dated January 10, 1994. The denial is based on career service rule 60K-13, F.A.C., which prohibits employees subject to the Hatch Act from becoming candidates in partisan elections, and which also permits employees to hold or be a candidate for a local public or political office, with necessary approval.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S.

   
   

6. Section 110.233(4)(a), F.S., provides:

   
   

   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 Management Services 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 Management Services 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)

         Chapter 60K-13, F.A.C., (formerly Chapter 22A-13) provides, in pertinent part: 60K-13.001 Scope and Purpose. This chapter

         sets forth the rules relating to political activities and unlawful acts for employees in the Career Service and penalties for violation of these rules.

         60K-13.002 Statements of Policy.

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

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

               * * *

               60K-13.003 Political Activities and Unlawful Acts.

               1. All employees are governed by the provisions of Section 110.233, Florida Statutes, relating to political activities and unlawful acts.

               2. Employees filing certain positions in agencies receiving Federal funds are also subject to the provisions of the Federal Hatch Act regarding political activities. The employing agency shall determine the applicability of the Hatch Act to its employees.

               3. All employees are subject to the provisions of Part III of Chapter 112, Florida Statutes, governing standards of conduct.

                  * * *

                  (emphasis added)

                  
                  

                  Rule 60K-13.0031, F.A.C., outlines the procedures for requests for approval.

                  
                  

7. The rules and the statute were upheld in Department of Administration

   v. Nelson, 424 So2d 852 (Fla. 1st DCA 1983). Although the circumstances in Nelson's case were different from those here in Ms. Jackson's case (Nelson sought to run for the local school board and became a candidate for office without approval), the principle is the same. The court specifically found section 110.233(4)(a), F.S., to be constitutional and further found the statute to be a sufficient legislative predicate for rules 22A-7.10(4)(a), F.A.C. and 22A-13.04, F.A.C.

   
   

8. The office of State Representative is a state, rather than a local office, even though, as argued by Ms. Jackson, it is an office elected by voters in a single local district. The state legislature is one of three branches of state government: the executive, the legislative, and the judicial. Article III, section 1., of the Constitution of the State of Florida provides:

   
   

   SECTION 1. Composition. -- The legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a senate composed of one senator elected from each senatorial district and a house of representatives composed of one member elected from each representative district.

   (emphasis added)

   
   

   Although "local office" is not defined in Chapter 110, F.S., "local office" is defined with specificity in chapter 112, F.S. See subsection 112.3145(1)(a), F.S., for example, which defines "local office" to include offices of cities, counties, local districts, and local authorities.

   
   

9. As pointed out by Ms. Jackson, the federal Hatch Act was substantially amended in 1993 in Public Law 103-94, effective October 6, 1993. The Hatch Act Reform Amendments of 1993, as the act is called, leaves intact the provisions of Title 5, U.S. Code, section 1502(a)(3), that a state employee (as defined in section 1501) may not be a candidate for elective office. The amendments primarily address activities by federal employees, but continues the prohibition for those employees as well:

   
   

   S. 185 would retain and strengthen current law prohibitions against political activity "on the clock"--on Government time and in government premises. It would broaden the current law to also provide Federal civilian and postal employees the opportunity to participate voluntarily in political activities as private citizens "off the clock"

   with two exceptions: it would continue current law prohibitions against running for partisan elective office and against solicitation of political contributions from the general public.

   (legislative history, P.L. 103-94, page 1803)

10. Ms. Jackson makes an intelligent and articulate plea that it is unfair to require an employee to resign before she is elected, that it is an undue burden on the exercise of rights of citizenship to require a public employee to give up her livelihood. Her plea is not supported by federal or state law or rules. Her candidacy for the office of State Representative while remaining employed in her current position is prohibited by the federal Hatch Act, as amended; by section 110.233, F.S.; and by rule 60K-13.002, F.A.C.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a final order be entered denying Mary C. Jackson's request to be a candidate for the state legislature while she remains an employee of the state.

DONE AND RECOMMENDED this 6th day of May, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

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 6th day of May 1994.

COPIES FURNISHED:

James Sawyer, Jr., Esquire Laurie Lashomb, Esquire Department of Health and

Rehabilitative Services District 7 Legal Office South Tower, Suite S827

400 West Robinson Street Orlando, Florida 32801

Mary C. Jackson 1406 Peg Lane

Orlando, Florida 32808

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-000946

Orders for Case No: 94-000946