The Issue The issue presented is whether Petitioner was a supervisory employee as defined by Section 110.205(2)(x), Florida Statutes (2001), and was therefore properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact Petitioner became employed by the Commission as an Engineering Supervisor in 1984, and held Select Exempt status prior to 1991, when he was reclassified to a Career Service employee. From 1997 until his retirement, he held Position No. 00168, titled “Utility Systems/Communications Engineer Supervisor.” The first paragraph of his October 1, 1997, Position Description states: This is work supervising engineers in the Bureau of Economic Regulation. The primary duty of the employee in this position is to spend the majority of time communicating with, motivating, training and evaluating employees, planning and directing their work; and having the ability to effectively recommend to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline subordinate employees. The October 1, 1997, Position Description was in effect at the time Petitioner was reclassified to Select Exempt following enactment of the Service First Initiative. Following the decision of the District Court of Appeal in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (1st DCA 2003), Petitioner was notified of his right to seek an administrative hearing for the purpose of challenging his reclassification. Petitioner timely requested a hearing on August 13, 2003. Petitioner does not dispute the supervisory nature of the job outlined in the Position Description. He claims that despite his Position Description, his position was not truly “supervisory” as a practical matter and thus did not fit within the authorized grounds for reclassification under Section 110.205(2)(x), Florida Statutes (2001). The Position Description alone is not controlling, because it is possible the actual nature of Petitioner’s job changed and the Position Description had not been amended to reflect that. It is therefore appropriate to look behind the Position Description to see whether the actual duties expected of Petitioner were supervisory in nature. To support his claim that his responsibilities had “eroded” to the point they were no longer supervisory in nature, Petitioner points to the hiring of several individuals to work in the section for which he was responsible. Several individuals (Ed Fuchs, Ted Davis, Gerald Edwards, and Jeanette Sickel) were hired to work under Petitioner by the Commission. Petitioner objected to the hiring of some of those persons on the ground that they lacked qualifications, educational and otherwise, for their positions, but they were hired nevertheless. Another individual, Wetherington, was hired with Petitioner’s assent after interviewing with Petitioner and the Bureau Chief. Once the individuals were hired, they worked under the supervision of Petitioner. He was responsible for approving their time sheets, conducting their annual evaluations, approving travel and leave requests, and training. Petitioner was responsible for assigning the work to employees Sickel, Munroe, Davis, Edwards, and Wetherington, and for monitoring its quality. It was Petitioner who the Commission held responsible for the work product of the section. Petitioner directed the manner in which the employees performed their work on a day-to-day basis. Petitioner answered to Marshall Willis, Bureau Chief of Rate Filings. Willis was responsible for evaluating Petitioner’s performance on the basis of how well Petitioner managed the performance of employees under Petitioner’s supervision, and Petitioner was rated and held accountable to communicate, train, direct, and assign work to subordinate employees assigned to him. Petitioner’s evaluation by Mr. Willis dated December 8, 2000, notes that Petitioner must put forth greater effort in reviewing the work of his engineering section and in improving the analysis reflected in written recommendations. Similar issues had been raised in an earlier evaluation. In response to a November 1998, evaluation of his performance by Mr. Willis, Petitioner acknowledged deficiencies in the performance of his engineering section, and provided assurance that he would “strive to do a better job of supervising my staff” in the future. At all pertinent times, Petitioner’s position was not of a routine, clerical, or ministerial nature, and did require the application of judgment. Petitioner had a significant role in personnel administration, as he served as the officer trusted by the state to verify the hours worked, to direct the amount and quality of work performed during those hours, and to be held accountable for the collective performance of the employees in the engineering section. Petitioner did lack the ultimate authority to hire and fire personnel, but that does not make his role in personnel administration insignificant. While hiring and firing are indeed important decisions, in state government the ultimate authority to hire and fire always resides with the agency head or office head. The bulk of the day-to-day management of personnel does not consist of hiring and firing, but rather of assigning the work and monitoring its successful completion. In addition to the expectations set out in the Position Description, the course of conduct and of communications received from his Bureau Chief establish that supervisory responsibility was in fact a requirement of Petitioner’s position. Petitioner was actually expected to spend a majority of his time communicating with, motivating, and training employees, and planning and directing their work. The clearly established expectations for Petitioner’s position would place upon the incumbent the responsibility for making effective recommendations for hiring, transfer, suspension, layoff, recall, promotion, discharge, assignment, reward, or discipline of subordinate employees. The instances of other Commission officials declining to follow Petitioner’s recommendations regarding hiring reflect the officials’ lack of satisfaction with the way Petitioner was carrying out those supervisory responsibilities, not an acknowledgement that those responsibilities do not exist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Public Service Commission enter a final order that Petitioner’s position was properly reclassified as Selected Exempt Service. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S S. SCOTT STEPHENS 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2003. COPIES FURNISHED: Robert J. Crouch 245 Pond Court Havana, Florida 32333 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32302-1906 Christiana T. Moore, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanco Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Richard D. Melson, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue This matter concerns the Petitioner's attack on Rules 22A-13.04 and 22A- 7.10(4)(a), Florida Administrative Code, on the grounds that they are invalid exercises of delegated legislative authority within the meaning of Section 120.56, Florida Statutes.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.
The Issue Whether Proposed Rule 69O-186.003(1)(c) should be invalidated on the grounds that it is an invalid delegation of legislative authority as defined in Section 120.52(8), Florida Statutes (2005).1
Findings Of Fact Based on the record of this proceeding, the following findings of fact are made: Background The Commission was created by statute effective January 7, 2003. It is composed of the Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. The Commission members "serve as agency head of the Financial Services Commission." § 20.121(3), Fla. Stat. The OIR is an "office" of the Commission and is "responsible for all activities concerning insurers and other risk bearing entities . . . ." The OIR is headed by a director, who is also known as the Commissioner of Insurance Regulation. § 20.121(3)(a)1., Fla. Stat. Pertinent to this proceeding, the legislature delineated the powers to be exercised by the Commission and the OIR, respectively, in Section 20.121(3), Florida Statutes, as follows: (c) Powers.--Commission members shall serve as the agency head for purposes of rulemaking under ss. 120.536-120.565 by the commission and all subunits of the commission. Each director is agency head for purposes of final agency action under chapter 120 for all areas within the regulatory authority delegated to the director's office.[3] Stipulated Facts (verbatim) The following stipulated facts are adopted as findings of fact for the purpose of this Final Order: On February 25, 2003, the Commission met, considered, and approved an agenda item involving the rulemaking process to be used by the Commission, the OIR, and the Office of Financial Regulation. The rulemaking procedure that is under consideration in this case involves the Commission's delegation to the OIR of the authority to engage in certain rulemaking activities. A true and correct copy of that agenda item, as approved by the Commission, and the relevant pages of the transcript of that meeting, are attached hereto as "Appendix A." On May 13, 2003, the Commission met and without objection approved the minutes of the Commission's February 25, 2003, meeting. The rulemaking process and delegation set forth in Appendix A permit the OIR to initiate rulemaking and to publish a proposed rule without the prior approval of the Commission, but require the Commission to approve the proposed rule prior to its filing for final adoption pursuant to Section 120.54(3)(e), Florida Statutes. Since its adoption in 2003, the Commission and the OIR have routinely employed the rulemaking process described in Appendix A and used this delegation of rulemaking authority in promulgating rules regulating the insurance industry. The Commission and the OIR employed the rulemaking process described in Appendix A and used this delegation of rulemaking authority in promulgating the proposed JLP rule that is the subject of the pending rule challenge. In May 2005, the OIR issued an order approving the JLP forms that had previously been submitted by First American Title Insurance Company. Shortly thereafter, on June 3, 2005, the OIR published a proposed rule in the Florida Administrative Weekly that would set an industry-wide premium rate for the newly approved JLP forms. Pursuant to the OIR's notice of proposed rulemaking, a public hearing was held on July 13, 2005, at which interested parties had the opportunity to speak and address the provisions of the proposed rule. The OIR's counsel specifically stated on the record during the hearing that the rulemaking process was ongoing and that the "final" hearing for the proposed rule would be subsequently noticed in the Florida Administrative Weekly and held before the Governor and Cabinet sitting as the Commission. On or about July 25, 2005, the Fund and the Association filed a petition with the Division of Administrative Hearings challenging the validity of the proposed JLP rule. Consistent with the Commission's routine practice, a notice of the "final" hearing before the Commission on the proposed JLP rule will be published in Part VI of the Florida Administrative Weekly ("Notices of Meetings, Workshops and Public Hearings"), and a copy of the notice will be mailed to all persons who notified the OIR of their interest in the proposed JLP rule, including the Fund and the Association. Statutory rulemaking procedures A "rule" is defined in Section 120.52(15), Florida Statutes, as "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." Section 120.54, Florida Statutes, sets forth the rulemaking procedures that are to be followed by all Florida agencies, including the Commission, see § 120.52(1)(b)4., Fla. Stat., and these procedures constitute the exclusive process for the promulgation and adoption of rules in Florida. See § 120.54(1)(a) and (3)(c)2., Fla. Stat. The rulemaking procedures mandated in Section 120.54, Florida Statutes, are detailed and comprehensive and contain two primary requirements: public notice at each step of the rule-development and rule-adoption process and an opportunity, throughout the rulemaking process, for the public and substantially affected persons to be heard with respect to any rule an agency proposes to adopt. See § 120.54(2) and (3), Fla. Stat. Generally, the first step in the rulemaking process is "rule development," as described in Section 120.54(2), Florida Statutes. The agency is required to give notice of its intent to develop proposed rules in the FAW "before providing notice of a proposed rule as required by paragraph (3)(a)," and the notice must "indicate the subject area to be addressed by rule development, provide a short, plain explanation of the purpose and effect of the proposed rule, cite the specific legal authority for the proposed rule, and include the preliminary text of the proposed rules, if available " § 120.54(2)(a), Fla. Stat. The agency may also hold public workshops during the rule development process, and it must hold a public workshop "if requested in writing by any affected person, unless the agency head explains in writing why a workshop is unnecessary." Id. Once the agency has developed a proposed rule, it must follow the adoption procedures set forth in Section 120.54(3), Florida Statutes. Foremost among these procedures is publication of notice of the agency's "intended action" in the FAW. This notice must be published by the agency "[p]rior to the adoption, amendment, or repeal of any rule other than an emergency rule" and only "upon approval of the agency head." § 120.54(3)(a)(1), Fla. Stat. The notice "must state the procedure for requesting a public hearing on the proposed rule" and must include a short, plain explanation of the purpose and effect of the proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific. § 120.54(3)(a)1., Fla. Stat. If requested in writing, a public hearing must be conducted by the agency prior to adoption of a proposed rule in order to "give affected persons an opportunity to present evidence and argument on all issues under consideration." See § 120.54(3)(c)1., Fla. Stat. Once this public hearing has been held, the agency may modify or withdraw the proposed rule or may adopt the proposed rule by filing it with the Department of State. See § 120.54(3)(d) and (e), Fla. Stat. If the agency decides to modify the substance of a proposed rule after the final public hearing or after the time for requesting a public hearing has passed, any substantive change in the rule "must be supported by the record of public hearings held on the rule, must be in response to written material received on or before the date of the final public hearing, or must be in response to a proposed objection by the [Administrative Procedures] committee." § 120.54(3)(d)1., Fla. Stat. The agency must also, among other things, publish notice of the change and the reasons for the change in the FAW. Id. When the agency has determined that the proposed rule is ready for adoption, it must file with the Department of State "three certified copies of the rule it proposes to adopt, a summary of the rule, a summary of any hearings held on the rule, and a detailed written statement of the facts and circumstances justifying the rule. § 120.54(3)(e)1., Fla. Stat. The proposed rule must be filed for adoption "no less than 28 days nor more than 90 days after the notice required by paragraph (a) [of Section 120.54(3), Florida Statutes]," § 120.54(3)(e)2., Fla. Stat.; the proposed rule is adopted upon filing with the Department of State and becomes effective 20 days after it is filed. § 120.54(3)(e)6., Fla. Stat. In addition to the opportunities to be heard at public hearings specified in Section 120.54, Florida Statutes, persons who are substantially affected by a proposed rule may file a petition with the Division of Administrative Hearings requesting an administrative hearing to determine the validity of the proposed rule, pursuant to Section 120.56, Florida Statutes, which provides in pertinent part: GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.-- (a) Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. * * * (e) Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. . . . CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-- Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule by filing a petition seeking such a determination with the division [of Administrative Hearings] within 21 days after the date of publication of the notice required by s. 120.54(3)(a), within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(c), within 20 days after the preparation of a statement of estimated regulatory costs required pursuant to s. 120.541, if applicable, or within 20 days after the date of publication of the notice required by s. 120.54(3)(d). The petition shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority. The petitioner has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. Any person who is substantially affected by a change in the proposed rule may seek a determination of the validity of such change. Any person not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the rule and is not limited to challenging the change to the proposed rule. * * * (c) When any substantially affected person seeks determination of the invalidity of a proposed rule pursuant to this section, the proposed rule is not presumed to be valid or invalid.
The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
The Issue The issue for disposition in this case is whether Respondents have implemented agency statements that meet the definition of a rule, but which have not been adopted pursuant to section 120.54.
Findings Of Fact Petitioner, Robert Wood, P.E., is a Florida-licensed professional engineer, holding license No. PE 31542. A large part of Petitioner?s work involves the design of aluminum-framed structures. Respondents, DBPR and FBPE, are charged with regulating the practice of professional engineering in the State of Florida, pursuant to chapters 455 and 471, Florida Statutes, and the rules promulgated thereunder, Florida Administrative Code Chapter 61G15. The FEMC is a public-private partnership established by the legislature to provide administrative, investigative, and prosecutorial services to the FBPE. By statute, the FEMC operates under a written contract (Contract) with the DBPR, which Contract is approved by the FBPE. Term of the Contract From the creation of FEMC in 1997 until 2000, the legislature provided that the required written contract was to be “renewed annually.” In 2000, the legislature amended section 471.38 to require that the written contract be an “annual contract.” In 2003, the legislature again amended section 471.38 to repeal the requirement that the contract be an annual contract. There is currently no specified term or time for renewal for the required written contract. The DBPR and the FEMC have elected to continue to enter written contracts with a term of one year. Determination of Legal Sufficiency Since its creation in 1997, section 471.038 has provided that “[t]he corporation may not exercise any authority specifically assigned to the board under chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.” The only change to that restriction was made in 2000, when the term “corporation” was changed to “management corporation.” In 2000, the legislature also enacted the Management Privatization Act, section 455.32, Florida Statutes. That Act was intended to establish a model for the creation of non-profit corporations with which the DBPR could contract for “administrative, examination, licensing, investigative and prosecutorial services to any board created within the department.” The similarities between section 471.38 and section 455.32 make it obvious that the latter was largely patterned after the former. Among the duties to be performed by a “corporation” under section 455.32(10) is to: . . . make a determination of legal sufficiency to begin the investigative process as provided in s. 455.225. However, the department or the board may not delegate to the corporation, by contract or otherwise, the authority for determining probable cause to pursue disciplinary action against a licensee, taking final action on license actions or on disciplinary cases, or adopting administrative rules under chapter 120. In previous years, at least through 2001, the written contract between the DBPR and the FEMC provided that “FEMC shall not exercise the police powers inherent in the Department and the FBPE including a determination of legal sufficiency or insufficiency of a disciplinary complaint.” At some time after the passage of the Management Privatization Act, the contractual “police powers” restriction was changed, and now reads, as reflected in the current Contract, as follows: Except when providing those prosecutorial and investigative services set forth in this Agreement, FEMC shall not exercise the police powers inherent in the Department and the FBPE under Chapters 455 or 471, Florida Statutes, including determining probable cause to pursue disciplinary action against a licensee, other than failure to comply with final orders of the Board as set forth in Rule 61015-18.005(2), Florida Administrative Code, taking final action on license applications or in disciplinary cases, or adopting administrative rules under Chapter 120, Florida Statutes. Prosecutorial servicing shall only be executed in the name of FBPE. That contractual restriction is consistent with the statutory limitation on the powers of the FEMC set forth in section 471.38. In its current form, the Contract establishes the services that are to be provided by FEMC to the DBPR and the FBPE. The list of prosecutorial services to be provided by FEMC include coordinating with investigators, reviewing and taking “appropriate action” on complaints, and preparing cases for presentation to the FBPE probable cause panel. The list of investigative services to be provided by FEMC include receiving complaints, interviewing complainants, witnesses, and subjects of complaints, issuing subpoenas, preparing investigative reports, and taking other actions leading to the prosecution of a case. The Contract does not specifically address the issue of determining legal sufficiency. The typical procedures of the FEMC in performing its investigatory functions are initiated when the FEMC receives a complaint by various means, including telephone, e-mail, or submission of a written complaint. Written complaints are normally directed to the FEMC chief prosecutor, who assigns them to an investigator for initial review. If the complaint is verbal, the investigator fielding the call will ask the complainant to file a written complaint. If a complaint is unaccompanied by information to substantiate the claims, the investigator typically requests supporting documentation, which may be a set of engineering plans, a report, or similar evidence of the facts underlying the complaint. In a procedure implemented by the FEMC in 2012, after receipt of the complaint and supporting documentation, the investigator forwards the complaint to an engineering expert retained by FEMC for a pre-review. The expert prepares a preliminary report which is then considered in the determination of legal sufficiency. Prior to implementation of the 2012 pre- review procedure, the determination of legal sufficiency was made without the benefit of a pre-review report in the manner otherwise described below. After receipt of the complaint, the supporting documentation, and, since 2012, the pre-review report, the investigator presents the complaint to the FEMC chief prosecutor. If the chief prosecutor determines that the complaint is not legally sufficient, the investigator is instructed to draft a memorandum for the chief prosecutor to review, which is in turn submitted to the FBPE Executive Director for signature. If the chief prosecutor determines that the complaint is legally sufficient, he or she verbally authorizes the investigator to place the engineer on notice of the investigation. At that point, the complaint is investigated using the investigative tools available to FEMC as set forth in the Contract. If sufficient evidence that a violation has occurred is found, the investigation culminates in a recommendation to the FBPE probable cause panel for a decision as to whether the panel believes there to be probable cause to proceed with disciplinary action. The decision to proceed with a disciplinary proceeding requiring a point of entry to challenge the action is entirely that of the FBPE probable cause panel. Probationary Project Review On November 4, 2009, FBPE entered a disciplinary final order regarding Petitioner that incorporated a stipulated settlement agreement, and imposed sanctions on Petitioner, including probation. By his entry of the settlement stipulation, Petitioner agreed to a “project review” at six and eighteen-month intervals. The project review consisted of the submission by Petitioner of a list of all completed projects. That list was provided to an engineering expert, who then selected two of the projects for a more comprehensive review. The steps to be performed by Petitioner and the FBPE are generally described in Project Review Process Guidelines that were provided to Petitioner by FBPE as an attachment to the notice of the two projects selected for comprehensive review. As a result of the project review, the two projects were determined to violate engineering standards, which resulted in the FEMC making a recommendation of probable cause to the FBPE probable cause panel. The probable cause panel found probable cause, leading to the issuance of an Administrative Complaint against Petitioner. Petitioner introduced evidence of one other case in which a project review was required as a condition of probation. In that case, an administrative law judge, after having determined that the professional engineer committed violations of section 471.033 and Florida Administrative Code Rule 61G15- 19.001, recommended imposition of “probation for two years with appropriate conditions for this case.” The Final Order, entered on March 12, 2008, imposed the recommended probation “with a plans review at 6 months and 18 months from the date of this Order.” The basis for the imposition of that sanction was not explained. There was no evidence introduced at the final hearing as to any other specific case in which a project review was required, other than the case involving Petitioner. The 2012 FEMC Annual Report, which is a business record of the FEMC, indicated that between July 1, 2011 and June 30, 2012, the FEMC was involved in the investigation and/or prosecution of 32 cases in which Administrative Complaints were filed against engineers. Disciplinary sanctions imposed against engineers during that one-year period included, among others, twenty-five reprimands, six license suspensions, eight probations, seven license restrictions, two voluntary license relinquishments, and four license revocations. Also included among the sanctions imposed during that period were three project reviews. The sanction of project review is one that is, statistically, used sparingly by the FBPE. There was no evidence introduced to establish the criteria, if any, for the imposition of a project review as a condition of probation, or to demonstrate that it was generally applied in any specific circumstances.
The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.
The Issue Whether Section (2) of Rule 59C-1.012(2), Florida Administrative Code (the "CON Administrative Hearing Procedures Rule" or the "Rule") constitutes an invalid exercise of delegated legislative authority? Whether Section (2) of the Rule, in effect, was repealed July 1, 1998, by the adoption of the Uniform Rules of Procedure?
Findings Of Fact The Right to a Comparative Hearing Section (2) of the CON Administrative Procedures Rule provides a method by which a co-batched applicant whose CON application has been approved in a proposed decision by AHCA and then challenged by another party may invoke the right to a comparative hearing. The right to a comparative hearing in CON proceedings has as its source due process considerations found by the United States Supreme Court in a federal case that did not involve CONs but in a context that shared with the CON arena the need for comparative review: Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S. Ct. 148, 90 L.ED. 108 (1945). These due process considerations have been described as follows: The so-called Ashbacker doctrine, enunciated by the Court has been adopted in Florida. When the decision on one application will substantially prejudice other simultaneously pending applications because all applicants are competing for a franchise to serve a market that only one of them in practical effect will be given authorization to serve the applications are mutually exclusive. In this situation, any of the applicants may request a comparative hearing in which the merits of all applications will be tried together and against each other. Section 2.32, Boyd, Overview of the Administrative Procedure Act, Florida Administrative Practice, Florida Bar, 6th Ed. (2001), p. 2-38. The Ashbacker doctrine has been applied by Florida Courts to CON proceedings involving co-batched applicants. See Bio-Medical Applications of Clearwater, Inc. v. Dept. of Health & Rehabilitative Services, 370 So. 2d 19 (Fla. 2d DCA 1979); Bio-Medical Applications of Ocala, Inc. v. Dept. of Health & Rehabilitative Services, 374 So. 2d 88 (Fla. 1st DCA 1979); and South Broward Hospital District v. Dept. of Health & Rehabilitative Services, 385 So. 2d 1094 (Fla. 4th DCA 1980). In the Second DCA's Bio-Medical decision, above, the Court found a due process right in co-batched applicants to comparative hearings involving the other co-batched applicants and recognized the flexibility of the Agency's predecessor, HRS to devise "administrative procedures [that] will be promulgated to deal with administrative problems in affording comparative hearings, if any such problems are anticipated." Bio-Medical Applications of Clearwater, Inc., above, at 25, e.s. The right to a comparative hearing in CON proceedings has been codified in statute. Section 408.039(5)(c), Florida Statutes, provides, "only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications." Section 408.039(5)(c), Florida Statutes, is among the statutes implemented by the CON Administrative Procedures Rule. Section (2) of the Rule is the provision at issue in this proceeding. The Parties Baptist is a licensed hospital located in Duval County, Florida. In the second batching cycle for 2001, Baptist applied to the Agency for Health Care Administration (the "Agency" or "AHCA") for a certificate of need ("CON") to establish a new 92- bed satellite hospital also in Duval County. The CON was preliminarily awarded by AHCA in a proposed decision contained in a State Agency Action Report (the "SAAR") issued December 14, 2001. The Agency for Health Care Administration is responsible for administering the certificate of need program under the Health Facility and Services Development Act, Sections 408.031-408.045, Florida Statutes. It promulgated the Rule with which this proceeding is concerned: Rule 59C-1.012, Florida Administrative Code. St. Vincent's and St. Luke's, like Baptist, are licensed hospitals located in Duval County, Florida. Also like Baptist, the two are the beneficiaries of proposed decisions in the SAAR although St. Vincent's, as explained below, was not as successful preliminarily as it had hoped during the events that precipitated this rule challenge. Precipitating Events A number of other applications were co-batched with Baptist's application in the second 2001 batching cycle. Three of the other co-batched applications were filed by St. Vincent's and St. Luke's. St. Luke's application was for a replacement hospital. St. Vincent's filed two applications, one a partial application for a 135-bed hospital; the other a full application for a 170-bed hospital, both to be located in the facility St. Luke's would leave if it is ultimately successful in its attempt to gain approval for the replacement hospital. Following review and evaluation of the applications, AHCA issued its SAAR and notices of intent on December 14, 2001. A SAAR sets forth in writing AHCA's findings of fact and determination upon which decisions are made with regard to CON applications. If there are no challenges filed timely to any of the decisions in the SAAR, the proposed decisions in the SAAR become final agency action. If there is a challenge then all of the action of AHCA in the SAAR remains preliminary pending the outcome of further administrative proceedings although, as more fully explained below, there are occasions when a decision in a SAAR is challenged but nonetheless it or other decisions are severed from the SAAR. Upon severance, they become final agency action while administrative proceedings continue with regard to other decisions contained in the SAAR. In the December 14, 2001, SAAR, the Agency explained the four proposed decisions with regard to the four co-batched applications of the three hospitals in this proceeding. The Agency approved Baptist's application for a 92-bed acute care satellite hospital, granted St. Vincent's partial application for a new 135-bed acute care hospital, and granted St. Luke's application for a new replacement hospital. But it denied St. Vincent's full application for a new 170-bed acute care hospital. Two weeks after the issuance of the SAAR, on December 28, 2001, AHCA published its notices of intent. The publication informed the public of AHCA's proposed decisions on the four co-batched applications as announced in the SAAR. In accord with the requirement of Section 408.039(4)(c), Florida Statutes, the notices were published in the Florida Administrative Weekly (Vol. 27, No. 52). With regard to providing a point of entry into additional administrative proceedings and in accord with Section 408.039(5), the publication stated: A request for administrative hearing, if any, must be made in writing and must be actually received by this department within 21 days of the first day of publication of this notice in the Florida Administrative Weekly pursuant to Chapter 120, Florida Statutes, and Chapter 59C-1, Florida Administrative Code. On the twenty-first day after publication, Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville ("Memorial"), an existing provider of acute care hospital services in Duval County, filed a petition challenging AHCA's preliminary approval of St. Vincent's partial application. On the same date, January 18, 2002, St. Vincent's filed a petition challenging the preliminary denial of its full application for a new 170-bed hospital. No party challenged the decision to issue a certificate of need to Baptist or St. Luke's within the twenty-one day period set forth in the notice. Thirty-five days after publication of the proposed decisions, and fourteen days after the filing of the Memorial and St. Vincent's petitions but within the time period allowed for by Section (2) of the Rule, St. Vincent's filed a third petition related to the co-batched applications. This petition of St. Vincent's invoked its right to a comparative hearing in which all approved applications, including Baptist's, would be at issue. The second of St. Vincent's two petitions was filed well beyond the 21-day period provided by AHCA as a point of entry into administrative proceedings for challenging decisions announced in the SAAR. The authority for filing the petition later than the 21-day period provided for in AHCA's December 28, 2001, notice is the object of this proceeding: Section (2) of the CON Administrative Hearing Procedures Rule. The Rule and its Development Rule 59C-1.012, Florida Administrative Code, is entitled "Administrative Hearing Procedures." It is one of two chapters of AHCA Rules in Volume 59C of the Florida Administrative Code that appear under the caption, "CERTIFICATE OF NEED." See Volume 59C, Florida Administrative Code. The first chapter, 59C-1, which includes the Rule, is entitled: "Procedures For the Administration of Sections 408.031 -- 408.045, Florida Statutes, Health Facility and Services Development Act." Rule 59C-1.012 states in paragraph (a) of subsection (2): If a valid request for administrative hearing is timely filed challenging the noticed intended award of any certificate of need application in the batch, that challenged granted applicant shall have ten days from the date the notice of litigation is published in the Florida Administrative Weekly to file a petition challenging any or all other cobatched applications. Rule 59C-1.012(2)(a), Florida Administrative Code. There is no contention in this proceeding that St. Vincent's filed its petition challenging AHCA proposed decision to approve Baptist's application in anything other than a timely manner under Section (2) of the Rule, that is, within its ten-day period: "10 days from the date the notice of litigation [to be distinguished from an AHCA notice of intended action or of proposed decision] is published in the Florida Administrative Weekly." Baptist hopes to defeat St. Vincent's petition with a motion to dismiss (see DOAH Case No. 02-0943CON) that depends on the outcome in this case; if Section (2) of the Rule is invalidated then there is no authority for the filing of St. Vincent's request for comparative hearing later than the 21- day period during which the other petitions were filed. A ruling, therefore, on the motion awaits the conclusion of this proceeding. Subsection (2) of the Rule was added by an amendment to the Rule in December of 1992 (the "1992 Amendment"). The Rule has not been amended since. The certification package for the 1992 Amendment to add Subsection (2) to the Rule was submitted to the Bureau of Administrative Code under cover of a letter dated November 24, 1992. In the certification, signed by the Department's General Counsel, the "[s]pecific [r]ulemaking [a]uthority" for the amendment is "408.15(8), Florida Statutes." Petitioner's Exhibit 4. Under "Law Being Implemented, Interpreted or Made Specific" are listed "408.039(5), F.S." and "120.57, 120.59, F.S." Id. The language in the amendment that added the present Section (2) to the Rule is markedly different from language originally proposed in the process that culminated in the present language. The different language proposed earlier is contained in an Inter-Office Memorandum dated January 31, 1992. The memorandum references "proposed amendments to [the Rule] . . . circulated for internal office review and comment." See Petitioner's Exhibit 1. This earlier version of the amendment did not allow any additional time beyond twenty-one days from the publication of a notice of proposed decisions or a notice of intent for a co-batched CON applicant to request a comparative hearing. The proposal provided only a twenty-one day period from publication of the notice of the Agency's proposed decision as the time for requesting a comparative hearing. The language of this earlier version recognized the difficulty posed for granted applicants among a batch of applicants. There may be no reason for an approved applicant to seek further administrative proceedings with regard to a proposed decision that is favorable unless and until that proposed decision is challenged by another party. Such a challenge may not be filed until the last minute of the twenty- first day leaving the applicant without time to request a comparative hearing or requiring the applicant to draft a request for such a hearing and stand on watch in the AHCA Clerk's office, ready to file it in case a petition contesting the approval of its application is filed at the last minute. The earlier version, therefore, provided that once a petition challenging any proposed decision in a SAAR was filed that there were implications for the other applications in the same batch: (2) If any portion of the agency decision contained in the State Agency Action Report is challenged by any person authorized by s. 381.709(5)(b), F.S., all applications in the batch are at issue, with the following exceptions: [a denied applicant who has not challenged the denial]. [an application severed from the remainder of the batch by stipulation of the parties under other certain conditions] (Petitioner's Exhibit 1, 5th page of a ten-page document with no page numbers. The language in the quote, above, is underscored in the exhibit since it is language proposed to be added by a rule amendment. In order to emphasize part of that language, however, the underscoring has been eliminated with the exception of the language emphasized.) The import of this different version of what became the language in the Rule is that there are other ways (albeit ways that may not function as smoothly as the method provided by the Rule) that applicants could invoke their right to a comparative hearing. A challenge to the Rule as proposed to be amended in accord with the language in the interoffice memorandum of January of 1992 was filed. In order to settle the matter, the Agency made changes. These changes are reflected in a memorandum dated April 7, 1992, from "Lesley Mendelson" (the "Mendelson memorandum") to "Liz Dudek" and "Bob Pannel." After discussion of several proposals by interested parties, one of which is designed to cure problems posed by "the price extracted from granted applicants to enter into a stipulation which would allow the granted applicant to be severed from the batch" (Petitioner's Exhibit 2), the Mendelson Memorandum recommends the language the agency settles on eventually as "the new paragraph 2(b)": (b) If a timely petition is filed challenging one or more intents to grant an application in the same batching cycle, the challenged granted applicant(s) shall have 10 days to file a petition challenging any or all notices of intent in the same batching cycle. (Petitioner's Exhibit 2.) This language with changes not material to this proceeding eventually was incorporated into Section (2) of the Rule. Stamped received September 9, 1992, AHCA submitted a notice of proposed rulemaking to the Bureau of Administrative Code in the Department of State. The notice proposes with modification of language insignificant to this proceeding the concept proposed in the Mendelson's memorandum. The Agency describes the proposed changes to Rule 59C-1.012 (the "1992 Amendment") as procedural in nature: The purpose of the proposed amendments . . . is to clarify and revise the existing rule regarding the definitions and procedures relating to administrative hearings . . . . The proposed amendments . . . set forth administrative hearing procedures for batched Certificate of Need applications . . . . (Petitioner's Exhibit 3.) In answer to the question of what prompted the development of the 1992 Amendment now in the Rule, Elizabeth Dudek, AHCA Deputy Secretary for Managed Health Care and Health Quality, and the Director of the Certificate of Need Office at the time 1992 Amendment were proposed, testified: [I]t was not uncommon at that point [prior to the 1992 Amendments] to have a nursing home case with 20 or more applicants and try to deal with who filed what when, even with letters of intent, and not uncommon to have at that point after a CON decision was made, to have CON consultants, their attorneys, lining the halls to see who would . . . file a petition or challenge against one of the parties in the case. And also not uncommon that there were, in a large case, individuals who might have had an approval but basically were held captive by the entire process . . . . So there was not still a process that was as streamlined as it could have been and basically cut back on some of the uncertainty and just the volume of what was going on. So one of the things that we looked to do with this rule is try to further . . . narrow and clarify what the process would be with respect to outcomes of CON decisions; and then how people would progress further from that . . . (Tr. 117, 118). Ms. Dudek went on to testify that the problem addressed by the 1992 Amendment did not occur in cases where the issues were between one applicant and the Agency or in cases of expedited review. The issues the 1992 Amendment were intended to resolve relate to co-batched applicants and stem from the rights of co-batched applicants to comparative review. Comparative Review Under the statutory scheme for administration of the CON Program, a CON is required for the establishment of certain types of health care facilities (such as a hospital or nursing home), for the establishment of additional beds at an existing facility, and for the establishment of certain services. Persons seeking a CON must file an application in what is known as a "batching cycle." See Section 408.039(1), Florida Statutes, and Florida Administrative Code Rule 59C-1.010. In a batching cycle, all applications seeking approval for the same type of facility, beds, or services undergo "comparative review" by the Agency. "Comparative review" is defined as follows: "Comparative review" means the process by which Certificate of need applications, submitted in the same batching cycle for beds, services or programs for the same planning area, as defined by applicable rules, are competitively evaluated by the agency through final agency action for purposes of awarding a Certificate of Need. (Emphasis added.) See Florida Administrative Code Rule 59C-1.002(11). The Agency proposes a decision to approve or deny a CON application and then denied applicants are afforded rights to further administrative proceedings pursuant to Section 408.039, Florida Statutes. Existing facilities and programs may challenge also the Agency's proposed decision to approve a CON application for a competing facility or program. Section 408.039(5) contains the statutory provisions related to administrative hearings on CON decisions: Within 21 days after publication of notice of the State Agency Action Report and Notice of Intent, any person authorized under paragraph (c) to participate in a hearing may file a request for an administrative hearing; failure to file a request for hearing within 21 days of publication of notice shall constitute a waiver of any right to a hearing and a waiver of the right to contest the final decision of the agency. A copy of the request for hearing shall be served on the applicant. Hearings shall be held in Tallahassee unless the administrative law judge determines that changing the location will facilitate the proceedings. The agency shall assign proceedings requiring hearings to the Division of Administrative Hearings of the Department of Management Services within 10 days after the time has expired for requesting a hearing. Except upon unanimous consent of the parties or upon the granting by the administrative law judge of a motion of continuance, hearings shall commence within 60 days after the administrative law judge has been assigned. All parties, except the agency, shall bear their own expense of preparing a transcript. In any application for a certificate of need which is referred to the Division of Administrative Hearings for hearing, the administrative law judge shall complete and submit to the parties a recommended order as provided in ss. 120.569 and 120.57. The recommended order shall be issued within 30 days after the receipt of the proposed recommended orders or the deadline for submission of such proposed recommended orders, whichever is earlier. The division shall adopt procedures for administrative hearings which shall maximize the use of stipulated facts and shall provide for the admission of prepared testimony. * * * The applicant's failure to strictly comply with the requirements of s. 408.037(1) or paragraph (2)(c) is not cause for dismissal of the application, unless the failure to comply impairs the fairness of the proceeding or affects the correctness of the action taken by the agency. The agency shall issue its final order within 45 days after receipt of the recommended order. If the agency fails to take action within such time, or as otherwise agreed to by the applicant and the agency, the applicant may take appropriate legal action to compel the agency to act. When making a determination on an application for a certificate of need, the agency is specifically exempt from the time limitations provided in s. 120.60(1). The right to a comparative hearing is codified in paragraph (c) of the statute providing administrative proceedings related to CONs: (c) In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need, whether reviewed under s. 408.036(1) or (2), to a competing proposed facility or program within the same district. Section 408.039(5), Florida Statutes. It is this provision that statutorily confers on co-batched applications "entitle[ment] to a comparative hearing on their applications." Id. "Comparative hearing" is defined to mean: (10) "Comparative hearing" means a single hearing, conducted pursuant to s. 120.57, F.S., and s. 59C-1.012, F.A.C., held to review all pending applications in the same batching cycle and comparatively reviewed by the agency. (Emphasis added.) See Rule 59C-1.002(10), Florida Administrative Code. Participation in Comparative Review Proceedings Under current procedure, all co-batched applicants do not automatically participate in comparative review because of one of the applicants' request for administrative proceedings following issuance of the SAAR. If the request does not relate to the denial of another co-batched applicant and the denied applicant fails to challenge the denial within the 21-day period then the denied applicant has no right to participate. It participates only if its denial has been challenged by another, a rare event. (See tr. 124). The denied applicant, by failing to challenge its own denial waives its right to comparative review. Approved applicants, moreover, that are challenged are not invariably fated to endure a comparative hearing until it is completed. Once a co-batched applicant has challenged the approved application, the proceedings related to the comparative hearing commence. But under the Rule, if all challenges to the approval are subsequently voluntarily dismissed as well as any to the fixed need pool, the approved applicant is severed from the batch. The severed applicant then receives a CON separately from action with regard to its co-batched applicants by final agency action. The same happens if no one challenges an approved applicant and there is no challenge to the fixed need pool, yet other challenges are made to other proposed decisions announced by the SAAR. (This was the scenario with regard to Baptist prior to St. Vincent's request for a comparative hearing.) The approved unchallenged applicant is severed from the batch and receives the certificate of need awarded by the SAAR by separate final agency action. These processes are codified in sub-paragraphs(b) and (c) of Section (2) of the Rule. St. Vincent's Interest in a Comparative Hearing Applications for CONs in the same batching cycle are not necessarily mutually exclusive. It is possible, for example, that both St. Vincent's and Baptist's could emerge from administrative hearings with the CONs for which they applied. Nonetheless, their proposals might be mutually exclusive. In the proceeding brought against St. Vincent's, Memorial might be able to prove that the District has a need for a number of beds that would allow either St. Vincent's approval or Baptist's but not both. If the hearing is not a comparative hearing but simply Memorial versus St. Vincent's then in light of such proof of mutual exclusivity, St. Vincent's application would have to be denied since Baptist's had been approved. On the other hand, if a comparative hearing is held, and St. Vincent proved that its application is superior to Baptists and that it was otherwise entitled to a CON, then its application could still be granted in the face of Memorial's proof of mutual exclusivity. In such a case, Baptist's would have to be denied. St. Vincent's interests, therefore, propelled it to request a comparative hearing once Memorial challenged AHCA's proposed decision to approve the St. Vincent's CON application. Baptist, in turn, hopes to avoid a comparative hearing with St. Vincent's. Its hope is based on what it sees as the invalidity of Section (2) of the Rule against which it has launched a two-pronged attack. Baptist's Two-pronged Attack Baptist sees Section (2) of the Rule to be in contravention of statutory authority. It reads the applicable statutes to require the filing of a request for comparative hearing within the 21-day period following the publication of the notice of the SAAR without authority for the filing later in the 10-day window as authorized by Section (2) of the Rule. Baptist also argues that Section (2) of the Rule was repealed when the Uniform Rules of Procedure were adopted and AHCA failed to obtain an exception for the section by July 1, 1998. Subsumed in this argument is the contention that the provision of the 10-day window conflicts with one of the Uniform Rules: Rule 28-106.111, Florida Administrative Code, the "Uniform Point of Entry Rule." The Uniform Point of Entry Rule Rule 28-106.111, Florida Administrative Code, which became effective April 1, 1997, provides, in pertinent part: (2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interest shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision. * * * (4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. The subject of the Uniform Point of Entry Rule is what is referred to in case law as "point of entry." Point of entry is that opportunity that must be provided by an agency to a party to participate in administrative proceedings after an agency decision has determined the party's substantial interests and through which the party enters administrative proceedings and thereby gains access to the decision-making process by which the agency determines the party's substantial interests. Indeed, the title of Chapter 28-106, is "Decisions Determining Substantial Interests." The Chapter is one set of what makes up an assemblage of rules required by the Administrative Procedure Act: the Uniform Rules of Procedure. Uniform Rules of Procedure In 1996, the Florida Legislature, in response to an ongoing examination of the Model Rules of Procedure (see Chapter 28-1 through 5 of the Florida Administrative Code, now repealed) initiated by the Governor's Office and as part of a revision of the Administrative Procedure Act, enacted Section 120.54(5), Florida Statutes. The section mandates adoption of "one or more sets of Uniform Rules of Procedure." Section 120.54(a)1., Florida Statutes. As a result of the mandate, the Uniform Rules of Procedure were adopted. Chapter 28-106 is one set of the Uniform Rules. Events that led up to the adoption of the Uniform Rules of Procedure were described at hearing by William E. Williams, a member of the Executive Council of the Administrative Law Section of the Florida Bar prior to 1996 and the Section Chair in 1996, when the Legislature mandated the adoption of the Uniform Rules of Procedure: The Model Rules of Procedure . . . had been in place for about 25 years and although the thought early on was to make them apply to all agencies, the Model Rules really did not. . . . they applied to the extent that agencies didn't adopt rules on the same subject; so the agency had the ability to essentially trump the Model Rules by adopting their own rules of procedure. * * * The administrative law section took a position . . . that by having each agency adopt its own procedural rules . . . was confusing to the practicing bar and the public because different time parameters were provided for in various agency rules. * * * [W]hat became 120.54(5) was essentially a product of the input of the administrative law section with regard to Uniform Rules of Procedure that would be uniformly applicable to all agencies in the absence of that agency seeking an exception under certain circumstances. (Tr. 50-52). Among the requirements in Section 120.54(5)(b)4., is one that rules be adopted for the "filing of petitions for administrative hearings pursuant to s. 120.569 or s. 120.57." This requirement stemmed from the concern of The Administrative Law Section of the Bar that differing points of entry times, one in the Model Rules, another in rules specific to an agency, could create a trap for the unwary. This concern was expressed in a white paper issued by the section entitled "Administrative Law Section Ideological and Legislative Position on APA 'Reform'": Uniform model rules of procedure that govern actions of every agency benefit the people by avoiding procedural traps and obstacles. Allowing agencies to create special procedural rules that vary from agency to agency defeats citizen participation in government and handicaps citizens who question agency actions. The agency rules are difficult for citizens and lawyers to locate. They are traps for the unwary. (Petitioner's Exhibit 7, p. 2-3.) To ease the concern expressed by the Administrative Law Section about "traps for the unwary" with regard to points of entry, the Uniform Rules of Procedure provide for a twenty- one day point of entry to seek a hearing on an agency decision (Rule 28-106.111, Florida Administrative Code). No exceptions are provided in the Uniform Rules. At the same time, exceptions were allowed by Section 120.54(5). Chapter 96-159, Laws of Florida, moreover, provided agencies a reasonable time period to review their procedural rules and seek exceptions as necessary. The statute is explicit with regard to exceptions: * * * [T]he uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception to the Agency under this subsection. An agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration Commission. The Administration Commission shall approve exceptions to the extent necessary to implement other statutes, to the extent necessary to conform to any requirement imposed as a condition precedent to receipt of federal funds or to permit persons in this state to receive tax benefits under federal law, or as required for the most efficient operation of the agency as determined by the Administration Commission. The reasons for the exceptions shall be published in the Florida Administrative Weekly. Agency rules that provide exceptions to the uniform rules shall not be filed with the department unless the Administration Commission has approved the exceptions. Each agency that adopts rules that provide exceptions to the uniform rules shall publish a separate chapter in the Florida Administrative Code that delineates clearly the provisions of the agency's rules that provide exceptions to the uniform rules and specifies each alternative chosen from among those authorized by the uniform rules. Section 120.54(5)(a), Florida Statutes. After adoption of the Uniform Rules, the Office of the Governor sent a memorandum from "Debby Kearney" to "All Agency General Counsels" (the "Kearney Memorandum"). The Kearney Memorandum provided state agencies with a copy of the Uniform Rules and notified them of the requirement to file for exceptions if different procedures were necessary to conduct proceedings before their agency or as required by law. The memorandum was specific regarding the need to apply for exceptions. Even if an agency had specific statutory authority for a procedure different from that in the Uniform Rules, the agencies were reminded of the requirement that they seek approval of the exception: The working group on the Uniform Rules was quite emphatic that the intent evident in the statute is that every procedural rule that is different from or is in addition to a Uniform Rule, be included on the listings of exceptions. Obviously, if a difference is required by statute or case law, this will be the easier case; however, all must go through this procedure. (Petitioner's Exhibit 9, emphasis in original.) The Administration Commission followed up by providing forms to request an exception, and again reiterated the importance of requesting one, whether it be for something different, or something in addition to, the Uniform Rules: To assist agencies in requesting exceptions, the Administration Commission staff has prepared a model petition format outlining the information that will be necessary for the Commission to review the petitions and make a decision. As communicated in Ms. Kearney's memorandum, EVERY procedural rule that is different from or in addition to a Uniform Rule, must go through the exception process. The format is divided into two sections. Section I includes procedures that are covered by the Uniform Rules. Section II includes procedures that are not covered by the Uniform Rules; however, the procedure must be necessary and the agency must be authorized to have the procedure. (Petitioner's Exhibit 10, emphasis added.) Subsequent to these two memoranda, questions arose from agencies regarding the scope of application of the Uniform Rules of Procedure. In particular, agencies expressed concern regarding permit and license application procedures prior to intended agency action. To answer these concerns, on March 4, 1998, the Administration Commission under the signature of its Secretary, Bob Bradley, issued another memorandum (the "Bradley Memorandum"). The Bradley Memorandum explains that "free form" procedures (those that precede notification of agency action, entry into formal proceedings and the carrying out of challenges to agency action through resolution by final order) were not within the scope of the Uniform Rules and therefore did not require exceptions: Section 120.54(5)(b), Florida Statutes, requires the Commission to adopt uniform rules of procedure for specific subjects . . . . There are a myriad of other procedural matters, such as permit or license application procedures, which precede formal proposed agency action and, thus, are not addressed by the [Uniform Rules]. * * * Exceptions to procedural rules which lie beyond the scope of rules contained in the [Uniform Rules are] not required . . . . (Petitioner's Exhibit 11.) The Agency for Health Care Administration did not apply for, nor, consequently, did it receive, an exception to the Uniform Rules to cover the procedure for invoking an approved applicant's right to a comparative hearing contained in Section (2) of the Rule. At hearing, AHCA offered no evidence or explanation regarding its course of not seeking an exception to the Uniform Rules of Procedure. Restrictions to Agency Rule-Making Authority The 1996 amendments to Chapter 120 (Ch. 96-159, Laws of Florida, Petitioner Exhibit 14), in addition to requiring one or more sets of Uniform Rules of Procedure, also limited agency discretion in rule adoption. Prior to that time, agencies could adopt rules if there was a general grant of authority and the rule was reasonably related to the law being implemented. The 1996 amendments restricted agency rule-making authority to those which "implement, interpret, or make specific the particular powers and duties granted by the enabling statute." Prior to these amendments, agencies had broad discretion to adopt rules which were "reasonably related to the purpose of the enabling legislation." See Chapter 96-159, Section 9, Laws of Florida (Petitioner's Exhibit 14; Tr. Pages 93-96). In 1999, this rule-making authority was limited even further, rejecting the "class of powers and duties" analysis of St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998), which interpreted agency rule-making authority more broadly than the Legislature had intended. (See "intent" language of Chapter 99-379, Laws of Florida.) Chapter 99-379, Section 3, Laws of Florida, amended Section 120.536, Florida Statutes, to clarify that: No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provision setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific the particular powers and duties conferred by the same statute. (Petitioner's Exhibit 15.) By both Chapters 96-159 and Chapters 99-379, Laws of Florida, agencies were provided a period of time to review and conform their rules to the stricter rule-making standards of that legislation (Tr. p. 96) The record reflects that AHCA took no action to modify Rule 59C-1.012, in light of these new legislative directives. Legislative Recognition of the Rule in 1997 In 1997, the Florida Legislature recognized all of AHCA's rules, including the CON Administrative Hearings Procedure Rule, that then implemented the CON statutes by declaring the rules effective and enforceable: The rules of the agency in effect on June 30, 1997 shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency . . . . See Chapter 97-270, Laws of Florida. This law was codified as Section 408.0455, Florida Statutes, with an effective date of July 1, 1997, two months after the effective date of the adoption of the Uniform Rules of Procedure and exactly one year prior to the deadline for approval of exceptions to the Uniform Rules, July 1, 1998.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
