STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EWA W. PODLACHA, )

)

Petitioner, )

)

vs. ) Case No. 98-2952RU

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on August 12, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: G. Ware Cornell, Jr., Esquire

G. Ware Cornell, Jr., P.A. Post Office Box 14633

Fort Lauderdale, Florida 33302

For Respondent: Steven W. Foxwell, Esquire

Department of Health

2020 Capital Circle Southeast BIN No. A02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

The issue presented is whether certain personnel policies of the Department constitute unpromulgated rules.

PRELIMINARY STATEMENT

On July 6, 1998, Petitioner filed a petition alleging that the Department, in taking disciplinary action against her, was

relying on certain policies which have not been adopted as rules in compliance with Section 120.54(1), Florida Statutes.

Petitioner testified on her own behalf and presented the testimony of Starr Metcalf. Additionally, Joint Exhibits numbered 1-16 were admitted in evidence.

Both parties submitted proposed final orders. Those documents have been considered in the entry of this Final Order.

FINDINGS OF FACT

1. Petitioner was employed by the Department of Health and Rehabilitative Services, the Department of Health's predecessor agency, on July 15, 1994. When she was dismissed from her employment by the Department of Health on May 18, 1998, she was a permanent career service employee.

2. Petitioner appealed that dismissal to the Public Employees Relations Commission. Her appeal is still pending but was stayed so that Petitioner could pursue this action.

3. Petitioner was dismissed for allegedly violating the following standards for disciplinary action, which apply to all Department employees.

   9. Violation of Rules, Regulations or Policies. An act which results in an unintentional violation of a rule, regulation or policy that has been made known to the employee.

   
   

   First Occurrence. Oral reprimand to written reprimand.

   
   

   Second Occurrence. Suspension of up to 10 days.

   
   

   Third Occurrence. Dismissal.

   26. Negligence. The failure to use ordinary or reasonable care in, or the omission of or inattention to, the performance of assigned duties or responsibilities. Negligence is synonymous with carelessness and signifies lack of care, caution, attention, diligence or discretion. Failure to provide direct client care or custody.

   
   

   First Occurrence. Written reprimand to dismissal.

   
   

   Second Occurrence. Ten-day suspension to dismissal.

   
   

   Third Occurrence. Dismissal.

   
   

   29. Conduct Unbecoming a Public Employee. Conduct, whether on or off the job, that adversely affects the employee's ability to continue to perform his current job, or which adversely affects the department's ability to carry out its assigned mission.

   
   

   First Occurrence. Written reprimand to dismissal.

   
   

   Second Occurrence. Ten-day suspension to dismissal.

   
   

   Third Occurrence. Dismissal.

   
   

   34. Failure to Report Client Abuse to the HRS Abuse Registry. Failure to report to the HRS Abuse Registry any mistreatment, abuse, neglect, or exploitation of a client immediately upon becoming aware of such treatment.

   
   

   First Occurrence. Suspension of up to 30 days to dismissal.

   
   

   Second Occurrence. Dismissal.

   
   

   The dismissal letter acknowledged that Petitioner's alleged violation of each of these standards was a first occurrence.

4. These standards have not been promulgated as rules

   pursuant to Section 120.54(1), Florida Statutes.

   
   

5. The Department has delegated authority to impose disciplinary action to over 100 various administrators throughout Florida. Each of those administrators exercises that authority over the Department employees within that administrator's unit or division.

6. The Department does not have a policy or practice which requires dismissal of any employee suspected of not reporting abuse. Each situation is reviewed on a case-by-case basis. The application of the Department's standards for disciplinary action is subject to administrative discretion.

7. Although the Department's Tallahassee office renders assistance and advice to the individual unit or division considering disciplinary action against a Department employee, when requested, the Department's Tallahassee office does not make the decision as to whether to discipline an employee or as to what penalty to impose. The decisions as to whether to discipline an employee and as to the penalty to be imposed are made by the administrator of the unit or division to which the employee is assigned.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.56(4), 120.569, and 120.57(1), Florida Statutes.

9. Section 120.52(15), Florida Statutes, provides, in part,

   as follows:

   
   

   'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the 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 does not include:

   1. Internal management memoranda. . . .

      
      

10. An agency's personnel policies and procedures can constitute rules. If they do, they do not constitute internal management memoranda, as argued by the Department, since they affect that agency's employees' private interests. Dept. of Highway Safety and Motor Vehicles v. Schluter and Fla. Ass'n of State Troopers, Inc., 705 So. 2d 81 (Fla. 1st Dist. 1997).

11. Under the Schluter holding, the standards under consideration in this cause do not constitute rules. Both the decision to apply any of the standards to a given situation and the decision as to what penalty should be imposed are discretionary with more than 100 various administrators in the various units of the Department. Since the application of each standard varies, accordingly, with the circumstances, the standards do not constitute rules.

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

ORDERED THAT Petitioner's challenge to the Department's personnel standards as unpromulgated rules is denied, and Petitioner's petition filed in this cause is dismissed.

DONE AND ORDERED this 9th day of November, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1998.

COPIES FURNISHED:

G. Ware Cornell, Jr., Esquire

G. Ware Cornell, Jr., P.A. Post Office Box 14633

Fort Lauderdale, Florida 33302

Steven W. Foxwell, Esquire Department of Health

2020 Capital Circle Southeast BIN No. A02

Tallahassee, Florida 32399-1703

Carroll Webb

Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

Pete Peterson Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

Dr. James Howell, Secretary 1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

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 Clerk of the Division of Administra- tive 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: 98-002952RU

Orders for Case No: 98-002952RU