STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ATTORNEY GENERAL and STATEWIDE ) PROSECUTOR, )

)

Petitioners, )

)

vs. ) CASE NO. 96-3318RX

)

PUBLIC EMPLOYEES RELATIONS )

COMMISSION, )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration of the petition for administrative determination of the invalidity of Rule 38D-17.023(2)(b), Florida Administrative Code, and the joint motion and stipulation of the parties, filed July 23, 1996.

STATEMENT OF THE CASE

1. By petition filed July 12, 1996, petitioners, the Attorney General and the Statewide Prosecutor, sought a determination that Rule 38D-17.023(2)(b), Florida Administrative Code, was an invalid exercise of delegated legislative authority because, inter alia, respondent, Public Employees Relations Commission, had exceeded its grant of rulemaking authority and the challenged rule enlarged, modified or contravened the specific provisions of law implemented.

   
   

2. On July 23, 1996, the parties filed a joint motion for final order wherein they stipulated that "the passage of [Section] 447.203(3)(j), Florida Statutes, which excludes from the definition of public employee those persons who by virtue of their positions of employment are regulated by the Florida Supreme Court pursuant to s. 15, Article V of the State Constitution removes the Respondent's statutory authority to promulgate or maintain the challenged rule." The parties further stipulated that "the most cost effective and expeditious manner of settling this case is to ask the hearing officer to enter a final order declaring rule 38D-17.023(2)(b), F.A.C., invalid."

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.56, Florida Statutes.

   
   

4. Here, petitioners have challenged the validity of Rule 38D- 17.023(2)(b), Florida Administrative Code, which accords Respondent authority to define a bargaining unit of State employed attorneys. The predicate for petitioners challenge is their contention that upon the enactment of Section 447.203(3)(j), Florida Statutes, respondent's authority to define a bargaining

   unit of state-employed attorneys was repealed and, therefore, the existent rule is invalid. Respondent concurs with petitioners' analysis.

   
   

5. Pursuant to Chapter 447, Florida Statutes, respondent is authorized to define a bargaining unit for public employees. However, Section 447.203(3)(j), Florida Statutes, effective March 30, 1994, expressly excluded from the term "public employee," "[t]hose persons who by virtue of their positions of employment are regulated by the Florida Supreme Court pursuant to s. 15, Art. V of the State Constitution."

   
   

6. Given the enactment of Section 447.203(3)(j), Florida Statutes, respondent's authority to define a bargaining unit of state-employed attorneys has been repealed. Consequently, Rule 38D-17.023(2)(b), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

RECOMMENDATION

Based on the foregoing, it is

ORDERED that the subject petition to determine the invalidity of Rule 38D- 17.023(2)(b), Florida Administrative Code, is granted, and Rule 38D- 17.023(2)(b), Florida Administrative Code, is found to be an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK, 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 30th day of July, 1996.

COPIES FURNISHED:

Claire D. Dryfuss, Esquire

M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Jack E. Ruby, Esquire

2596 Seagate Drive, Suite 100

Tallahassee, Florida 32301-5032

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 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: 96-003318RX

Orders for Case No: 96-003318RX