81-001694RX
Maggie L. Allen vs.
Department Of Law Enforcement
Status: Closed
DOAH Final Order on Wednesday, September 23, 1981.
DOAH Final Order on Wednesday, September 23, 1981.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MAGGIE L. ALLEN )
12)
13Petitioner, )
15)
16vs. ) CASE NO. 81-1694RX
21)
22DEPARTMENT OF LAW ENFORCEMENT, )
27)
28Respondent. )
30_________________________________)
31FINAL ORDER
33Pursuant to notice, an administrative hearing was held before R. L.
44Caleen, Jr., Hearing'" Officer width the Division of Administrative Hearings, on
55August 24, 1981, in Tallahassee, Florida. Appearances
62For Petitioner: Ben R. Patterson, Esquire
68Post Office Box 4289
72Tallahassee, Florida 32303
75For Respondent: Janet E. Ferris, Esquire
81Post Office Box 1489
85Tallahassee, Florida 32302
88ISSUE PRESENTED
90Whether respondent's rules of conduct contained in Department of Law
100Enforcement Directive #200.08 constitute an invalid exercise of delegated
109legislative authority on the ground that they were not promulgated in accordance
121with Chapter 120, Florida Statutes (1979)
127BACKGROUND
128On June 25, 1981, petitioner Maggie L. Allen ("Petitioner") filed a
"141Petition for Rule Determination" pursuant to Section 120.56, Florida Statutes
151(1979). Petitioner alleges that she was employed by the respondent Department
162of Law Enforcement ("Department"), that on June 15, 1981, the Department
175terminated her employment because of her willful violation of Department
185Directive #200.08; and that such directive has not been adopted as a rule in
199accordance with Chapter 120, Florida Statutes (1979).
206By order dated July 7, 1981, the Director of the Division of Administrative
219Hearings assigned this matter to the undersigned; hearing was thereafter set for
231August 6, 1981.
234On July 31, 1981, the Department moved to dismiss based on petitioner's
246alleged failure to comply with a prehearing order requiring identification of
257exhibits, witnesses, and issues of fact and law. Counsel for "petitioner
268responded that the noncompliance was inadvertent. The motion was therefore
278denied; however, final hearing was continued and reset for August 24, 1981.
290At final hearing, the parties stipulated to certain facts and offered joint
302Exhibit Nos. 1 through 3 into evidence; Exhibit No. 4 was moved into evidence by
317the Department without objection by petitioner. No testimonial evidence was
327presented.
328The issues are clearly drawn. Petitioner contends that Department
337Directive #200.08 (containing rules of conduct for employees) is a "rule" within
349the meaning of the Administrative Procedure Act ("APA"), that it has not been
364properly promulgated in accordance with the APA, and that it thus constitutes an
377invalid exercise of delegated legislative authority.
383The Department responds that Directive #200.08 is an internal management
393memoranda, not a "rule" within the meaning of the APA. Alternatively, if the
406directive is a "rule," the Department argues that it has been properly
418promulgated, by reference, in Department Rule 11-1.12, Florida Administrative
427Code.
428The parties have submitted proposed findings of fact and conclusions of
439law. To the extent such findings and conclusions are not incorporated herein,
451they are rejected as contrary to the evidence, irrelevant to the issues, or not
465in accordance with law.
469Based on the evidence and the agreed-upon facts, the following findings are
481entered:
482FINDINGS OF FACT
4851. Petitioner Maggie L. Allen was a Career Service employee (with
496permanent status) of the Department of Law Enforcement until she was terminated
508from her position or about June 15, 1981. She has appealed her termination to
522the Florida Career Service Commission. (Prehearing Stipulation, p. 2;
531Respondent's Admissions.)
5332. The reason given for her termination was, in part, her alleged
545violation of Department Directive #200.08(5), Rules of Conduct ("Directive") .
557More specifically, the Department charged her with violating specific rules of
568conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule
57822, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful
588Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2;
598Respondent's Admissions; Exhibit No. 3.)
6033. The Directive, effective November 27, 1978, is an official statement of
615Department policy and is generally applicable to all employees of the
626Department. Its stated purpose is "to provide each Departmental employee with
637clear examples of acts which would violate the above personnel rules or
649statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive
658defines acceptable conduct for Department employees by specifically enumerating
66735 standards of conduct. By its terms, breach of one or more of those standards
682constitutes employee misconduct and may result in disciplinary action against an
693employee ranging from oral reprimand to discharge. However, these standards are
704not intended to be an exclusive, or exhaustive listing of impermissible conduct.
716(Respondent's Admissions; Exhibit No. 1.)
7214. The Directive is part of the Department's Duty Manual, a volume
733containing directives on personnel, administrative, training, and fiscal matters
742as well as the operations of the Department's divisions. The stated purpose of
755the Duty Manual is to "inform and guide . . . [Department] officers and
769employees in the performance of their official duties." (Exhibit No. 2.) The
781Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida
793Statutes, that copies are disseminated to all employees and that employees must
805obey, comply with, and follow the Manual's directives. The Manual has been
817incorporated, by reference, in Department Rule 11-1.12, Florida Administrative
826Code. All formalities concerning publication of Rule 11-1.12 were complied with
837prior to its publication in the Florida Administrative Code. (Prehearing
847Stipulation; Exhibit No. 2.)
8515. Department Rule 11-1.12, incorporating--by reference--the Duty Manual,
859was adopted on March 20, 1979, for the purpose of validating those portions
872(unspecified) of the Manual which constituted "rules" under the APA. At the
884time, the Department anticipated that adopting the Manual, by rule, would "lead
896to greater efficiency." (Exhibit No. 2.)
902CONCLUSIONS OF LAW
9056. The Division of Administrative Hearings has jurisdiction over the
915parties and subject matter of this proceeding. Petitioner is substantially
925affected by Department Directive #200.08, since it forms--in part--the basis for
936the Department's termination of her employment. 120.56, Fla. Stat. (1979)
9467. On June 25, 1981, petitioner commenced discovery by filing requests for
958admissions; since the Department failed to answer those requests within the
969prescribed 30-day period, the requests were deemed admitted. See, Rule 1.370,
980Fla. R. Civ. P.; 120.58(1)(b), Fla. Stat. (1979).
9888. Thereafter, on August 19, 1981, the parties executed a pre-hearing
999stipulation pursuant to prehearing order, and included a Statement-of-
1008stipulated-facts. Those stipulated facts, in part, conflict with the
1017Department's earlier admissions (which resulted from its failure to timely
1027answer the requests for admissions). 1/ Any inconsistency has been resolved in
1039favor of the parties' subsequently filed prehearing stipulation. By agreeing to
1050the matters in the stipulation, petitioner, in effect, allowed the Department to
"1062amend" its earlier admissions 2/ to the extent necessary to conform them to
1075the subsequently filed statement-of-stipulated-facts. Furthermore, no showing
1082has been made that allowing the Department to so "amend" its prior admissions
1095would prejudice petitioner in presenting her case. See, Rule 1.370(b), Fla. R.
1107Civ. P.
11099. In Section 120.56 proceedings, the burden is upon one who attacks an
1122agency rule to show that it is an invalid exercise of delegated legislative
1135authority. Cf., Agrico Chemical Co. v. State, 365 So.2d 759, 763 (Flab 1st DCA
11491979). A rule not adopted in accordance with the rulemaking procedures
1160prescribed by Section 120.54 is invalid. Department of Environmental Regulation
1170v. Leon County, 344 So.2d 297, 299 (Fla. 1st DCA 1977)
118110. Here, the petitioner has not sustained her burden of proof; she has
1194not presented sufficient evidence to establish her allegation that "Department
1204Directive #200.08, has not been adopted as a rule as required by Chapter 120 of
1219the Florida Statutes." (Petition for Rule Determination, p. 2, dated June 25,
12311981.)
123211. In March, 1979, the Department adopted Rule 11-1.12, Florida
1242Administrative Code, which incorporated, by reference, the Department's Duty
1251Manual (containing Directive #200.08).
125512. Agencies may adopt rules incorporating, by reference, other material
1265provided they comply with several requirements. Rule 15-1.005, F.A.C. see,
1275Department of Health and Rehabilitative Services v. Florida Project Directors
1285Association, 368 So.2d 954 (Fla. 1st DCA 1979). For example, the material
1297incorporated must be generally available to affected persons, and must be filed
1309with the Department of State. Rule 15-1.005(1)(a), (2), F.A.C.
131813. Here, petitioner contends that she should prevail because the
1328Department failed to prove that the incorporated material (the Duty Manual
1339including Directive #200.08) was, in fact, generally available to affected"
1349persons and filed with the Department of State. 3/ However, the burden of going
1363forward with evidence to establish such facts never shifted to the Department
1375because petitioner failed to present a prima facie case establishing non-
1386availability of the material or failure to file it with the Department of State.
14004/ See, e.g., Florida Department of Transportation v. J.W.C. Company, Inc., 396
1412So.2d 778 (Fla. 1st DCA 1981); 23 Fla. Jur.2d, Evidence and Witnesses, 63-64; 29
1426Am. Jur.2d, Evidence, 123-126.
143014. Petitioner argues that it was the Department's burden to present
1441evidence on these matters because the Department's contention that Directive
1451#200.08 was validly promulgated constituted an affirmative defense. But, the
1461Department's position (that Directive #200.08 was validly promulgated) is
1470encompassed within its denial of petitioner's charge that Directive #200.08 was
1481not validly adopted; the Department's position does not set up new matters, or
1494matters extrinsic to the allegations made by petitioner; hence it does not
1506constitute an affirmative defense. See, 25 Fla. Jur., Pleadings, 77-78.
1516Neither was the Department's position pled as an affirmative defense.
152615. Moreover, even if the Department's contention is considered an
1536affirmative defense, the burden of proving it does not shift to the Department
1549until petitioner proves its allegations by a preponderance of the evidence--
1560something petitioner failed to do in this case. See, Heitman v. Davis, 172 So.
1574705, 706 (Fla. 1937)
157816. In the alternative, the Department argues that Directive #200.08
1588qualifies for the "internal management memoranda" exception from the definition
1598of "rule" provided by Section 120.52(14), Florida Statutes (1979). This
1608argument comes too late.
161217. In March, 1979, the Department submitted Directive #200.08 to the
1623rulemaking procedures of Section 120.54. It was therefore required to comply
1634with every step in the rulemaking process. Department of Environmental
1644Regulation, supra.
164618. By its 1979 adoption of Directive #200.08 as a rule, the Department
1659presumably benefited from the advantages which ordinarily accompany agency
1668rulemaking, e.g., increased administrative efficiency and avoidance of the need
1678to repeatedly explicate and defend agency policy in Section 120.57 hearings.
1689See, Anheuser-Busch, Inc., v. Department of Business, 393 So.2d 1177 (Fla. 1st
1701DCA 1981). It cannot now--more than two years later--argue that it did not have
1715to comply with APA rulemaking requirements because rulemaking was not necessary.
1726In March, 1979, it chose to adopt Directive #200.03 (by reference) as a rule; it
1741now must "be willing to live with . . . [that] basic policy choice," Anheuser-
1756Busch, supra at 1182, until the rule is changed or repealed. It cannot, now--by
1770argument--effectively repudiate its prior actions or avoid their equal
1779consequences.
1780It is, therefore,
1783ORDERED:
1784That the petitioner's Petition for Rule Determination is DENIED.
1793DONE AND ORDERED this 23 day of September, 1981, in Tallahassee, Florida.
1805___________________________________
1806R. L. CALEEN, JR.
1810Hearing Officer
1812Division of Administrative Hearings
1816The Oakland Building
18192009 Apalachee Parkway
1822Tallahassee, Florida 32301
1825(904) 488-9675
1827Filed with the Clerk of the
1833Division of Administrative Hearings
1837this 23rd day of September, 1981.
1843ENDNOTE
18441/ For example, by its admission to petitioner's request for admission No. 7,
1857the Department admits that Directive #200.08 has not been adopted as a rule in
1871accordance with APA rulemaking procedures; yet, in their subsequently filed
1881statement-of-stipulated-facts, both parties agree that the Directive is part of
1891the Duty Manual, that the Manual is referenced in Rule 11-1.12, and that APA
1905formalities concerning publication were complied with prior to publication of
1915Rule 11-1.12 in the Florida Administrative Code.
19222/ These consisted of petitioner's requests for admissions, dated June 25,
19331981, deemed admitted by the Department's failure to timely answer.
19433/ The Department responds that the Duty Manual recitation proves the former,
1955while the language of Rule 11-1.12(3), Florida Administrative Code, establishes
1965the latter.
19674/ Petitioner admits her failure to present evidence on these two issues -- an
1981evidentiary failure which cannot be cured by allegations in her petition.
1992COPIES FURNISHED:
1994Ben R. Patterson, Esquire
1998Post Office Box 4289
2002Tallahassee, Florida 32303
2005Janet E. Ferris, Esquire
2009Post Office Box 1489
2013Tallahassee, Florida 32302
2016James W. York, Commissioner
2020Department of Law Enforcement
2024Post Office Box 1489
2028Tallahassee, Florida 32302
2031Liz Cloud
2033Department of State
2036The Capitol, Room 1802
2040Tallahassee, Florida 32301
2043Carroll Webb, Executive Director
2047Administrative Procedure Act Committee
2051Room 120, Holland Building
2055Tallahassee, Florida 32301
Case Information
- Judge:
- R. L. CALEEN, JR.
- Date Filed:
- 06/29/1981
- Date Assignment:
- 06/29/1981
- Last Docket Entry:
- 09/23/1981
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Law Enforcement
- Suffix:
- RX