81-001694RX Maggie L. Allen vs. Department Of Law Enforcement
 Status: Closed
DOAH Final Order on Wednesday, September 23, 1981.


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Summary: Petitioner lost job for refusing to follow directive she claims is an unauthorized rule. The challenged directive is not a rule.

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

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Date
Proceedings
PDF:
Date: 09/23/1981
Proceedings: DOAH Final Order
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Date: 09/23/1981
Proceedings: CASE CLOSED. Final Order sent out.

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
 

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