98-004706RU Florida Public Employees Council 79, Afscme, Betty Hall, Diane Lomas, Sara Battista, Mercedes Valdez, Elizabeth Judd, And Kenneth Sholstrum vs. Department Of Labor And Employment Security Status: Closed DOAH Final Order on Tuesday, February 23, 1999.

Summary: Agency choice of layoff method to be used only once was not a "rule."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PUBLIC EMPLOYEES COUNCIL 79; )

AFSCME; BETTY HALL; DIANA LOMAS; )

SARA BATTISTA; MERCEDES VALDEZ; )

ELIZABETH JUDD; and KENNETH SHOLSTRUM, )

)

Petitioners, )

)

vs. ) Case No. 98-4706RU

)

DEPARTMENT OF LABOR AND EMPLOYMENT )

SECURITY, )

)

Respondent, )

)

and )

)

MYRIAM GARCIA, )

)

I ntervenor. )

_______________________________________)

FINAL ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 11, 1998, at Tallahassee, Florida, before

Michael M. Parrish, an Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: Jerry Gaynham, Esquire

Patterson & Traynham

Post Office Box 4289

Tallahassee, Florida 32315-4289

For Respondent: Edward A. Dion, General Counsel

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189

For Intervenor: Linda Barge-Miles, Esquire

111 North Gadsden Street, Suite 100

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

This is a rule challenge proceeding pursuant to Section

120.56(4), Florida Statutes, in which the Petitioners and the

Intervenor assert that they are substantially affected by an

agency statement that violates Section 120.54(1)(a), Florida

Statutes. The subject matter at issue here concerns the method

of determining the order of layoff of some of the Respondent's

employees.

PRELIMINARY STATEMENT

By means of a Petition filed on October 22, 1998, the

Florida Public Employees Council 79, AFSCME, (AFSCME) and six

individuals (the individual Petitioners) challenged the validity

of an alleged rule of the Department of Labor and Employment

Security (Respondent). On November 17, 1998, all of the

Petitioners filed a motion seeking leave to amend their Petition.

The motion was accompanied by an Amended Petition. The motion

was unopposed, and by order Dated December 8, 1998, the Amended

Petition was substituted for the original Petition.

On October 26, 1998, Myriam Garcia (Intervenor) filed a

Motion to Intervene, in which she asserted, among other things,

that she was adversely affected by the same alleged rule which

was being challenged by the Petitioners. The motion was

unopposed, and by order dated November 6, 1998, the Intervenor

was granted party status subject to proof at hearing.

On December 10, 1998, the Petitioners and the Respondent

filed a Prehearing Stipulation in which, among other things, they

stipulated to a number of facts. At the final hearing, the

Intervenor joined in the stipulations contained in the Prehearing

Stipulation.

At the commencement of the final hearing, counsel for the

Petitioners announced that two of the individual Petitioners,

Kenneth Sholstrum and Sara Battista, wished to be voluntarily

dismissed from further participation in this proceeding.

At the final hearing in this case, the Petitioners offered

eight exhibits, all of which were received in evidence. The

Petitioners also presented the testimony of two witnesses;

Theodore R. Buri, a Regional Director of AFSCME, and Louise

Lambert, Chief of the Respondent's Bureau of Human Resources.

None of the individual Petitioners testified at the final

hearing. The Respondent did not offer any exhibits and did not

call any witnesses. The Intervenor did not offer any exhibits

and did not call any witnesses. Official recognition was taken

of Chapter 60K-17, Florida Administrative Code.

At the conclusion of the hearing the parties requested, and

were granted, 17 days within which to file their respective

proposed final orders. None of the parties elected to file a

transcript of the hearing. The Petitioners and the Respondent

filed timely proposed final orders. As of the date of this Final

Order, the Intervenor has not filed any post-hearing documents.

FINDINGS OF FACT

Stipulated facts

1. In 1996, the federal government modified and/or reformed

welfare to require eligible participants to obtain employment.

The Florida Legislature enacted Chapter 414, Florida Statutes,

also known as the WAGES law, which required the Respondent to

provide certain services to applicants for and participants in

the WAGES program, including work activities, training, and other

job-related services, which the Respondent termed "front-end

services." Those services were primarily provided by Career

Service employees of the Respondent.

2. In 1998, the Florida Legislature amended portions of the

WAGES law to require that local WAGES coalitions, instead of the

Respondent, provide those front-end services to WAGES

participants, effective October 1, 1998.

3. As a direct result therefor, the Respondent was required

to lay off approximately 700 career service employees.

4. As a part of the implementation of the announced layoff

of employees, Respondent requested approval of a method of

determining the order of layoff, pursuant to Rule 60K-

17.004(3)(g), Florida Administrative Code, which provides:

(g) Agencies shall then choose and

consistently apply one of two methods, or

another method as approved by the Department

of Management Services, in determining the

order of layoff. These methods are commonly

referred to as "bumping."

1. Option 1: The employee at the top of

the list shall have the option of selecting a

position at the bottom of the list based on

the number of positions to be abolished,

e.g., 20 positions in the affected class,

5 positions to be abolished. The employee at

the top of the list can select any of the

positions occupied by the 5 employees at the

bottom of the list. The next highest

employee on the list then has the option of

selecting any of the positions occupied by

the 4 remaining employees at the bottom of

the list with the process continuing in this

manner until the 5 employees at the top of

the list have exercised their option.

2. Option 2: The employee at the top of

the list has the option of selecting any

position occupied by any employee on the list

with fewer retention points in the class.

The next highest employee and remaining

employees shall be handled in a similar

manner until the list is exhausted.

Rather than selecting Option 1 or Option 2, set forth in the

published rule, the Respondent requested approval of an

alternative method of determining the order of layoff.

5. By letter dated August 17, 1998, the Department of

Management Services (DMS) approved the method of determining

order of layoff set forth in its correspondence. The method of

determining the order of layoff is described by DMS in its

approval letter as:

The option you have chosen will allow

adversely affected employees to select any

position in the affected class and series, in

the competitive area approved in our

August 5, 1998 letter.

6. Neither the Respondent's request for approval of the

alternate method of determining the order of layoff, nor DMS'

approval of that method, have been adopted in substantial

conformity with Section 120.54, Florida Statutes.

7. The Respondent's request for approval of the alternate

method of layoff was intended to apply solely to the layoff

occasioned by changes in the WAGES law.

Facts based on evidence at hearing

8. Florida Public Employees Council 79, AFSCME, is the

certified bargaining agent for approximately 67,000 career

service employees of the State of Florida. As such, it

represents the employees of the Department who were affected by

the subject layoff.

9. The individual Petitioners, Betty Hall, Diana Lomas,

Mercedes Valdez, and Elizabeth Judd, are members of the AFSCME

collective bargaining unit. The challenged bumping procedure was

not reached by collective bargaining.

10. Under the alternative layoff method approved for the

Respondent by DMS, employees with the greater number of retention

points received enhanced bumping rights, permitting them to

"bump" employees with fewer retention points in the same class

and in the class series. Conversely, by this alternative

procedure, employees with fewer retention points were accorded

diminished protection against bumping. These employees could be

bumped not only by employees with greater retention points in the

class, but also by employees with greater retention points in

other classes in the class series.

11. For example, Consuelo Casanovas, from Petitioners'

Exhibit 8, who was adversely affected in her position of

Employment Security Representative I, was accorded bumping rights

to positions in her class and to positions in the other two

classes in the class series, Customer Services Specialist and

Interviewing Clerk. Had the Respondent elected Option 1 or

Option 2 in the published rule, Rule 60K-17.004(3)(g), Florida

Administrative Code, Ms. Casanovas would not have had the right

to bump to positions in the other two classes, and persons in

those other two classes would not have been subject to bumping by

Ms. Casanovas. 1

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.56, Florida Statutes.

13. With regard to the individual Petitioners, Kenneth

Sholstrum and Sara Battista, the Amended Petition should be

dismissed based on their respective notices of voluntary

dismissal announced at the commencement of the hearing.

14. With regard to the remaining individual Petitioners,

Betty Hall, Diana Lomas, Mercedes Valdez, and Elizabeth Judd, the

Amended Petition should be dismissed because there is no

competent substantial evidence that any of them were adversely

affected by the alleged rule challenged in this proceeding.

Therefore, they have no standing to bring the instant action.

15. With regard to the Intervenor, Myriam Garcia, her

Motion to Intervene should be denied and the relief she requests

should be denied, because there is no competent substantial

evidence that she was adversely affected by the alleged rule

challenged in this proceeding. Therefore, she has no standing to

seek relief in this action.

16. In its proposed final order, the Respondent does not

challenge the standing of the remaining Petitioner, AFSCME.

Although there are serious doubts 2 as to whether AFSCME has

standing in a case of this nature, the matter does not need to be

resolved because, for the reasons set forth below, the Amended

Petition must, in any event, be dismissed.

17. In its proposed final order the Respondent sets forth

several reasons for which the Amended Petition in this case

should be dismissed. All of those reasons, which are quoted

immediately below, are persuasive and are adopted into these

conclusions of law.

13. Because the Department had utilized

the alternate method of layoff to effectuate

the reduction in force prior to the time the

Petition in this case was filed and before

the evidentiary hearing was conducted, this

case is moot. A determination that the

Department's request for approval of the use

of the alternate method constitutes an

unpromulgated rule will offer no relief to

the sole remaining Petitioner, because the

layoff has been completed and has no

prospective application.

14. For purposes of Chapter 120, Florida

Statutes, the term "rule" is defined, in

pertinent part, as follows at Section

120.52(15), Florida Statutes:

(15) "Rule" means each agency statement

of general applicability that

implements, interprets, or prescribes

law or policy or describes the procedure

or practice requirements of an agency

and includes any form which imposes any

requirement or solicits any information

not specifically required by statute or

by an existing rule. The term also

includes the amendment or repeal of a

rule. The term does not include:

(a) Internal management memoranda which

do not affect either the private

interests of any person or any plan or

procedure important to the public and

which have no application outside the

agency issuing the memorandum.

15. Section 120.56(4), Florida Statutes,

provides, in pertinent part, as follows:

(4) CHALLENGING AGENCY STATEMENTS

DEFINED AS RULES; SPECIAL PROVISIONS.-

(a) Any person substantially affected

by an agency statement may seek an

administrative determination that the

statement violates s. 120.54(1)(a). The

petition shall include the text of the

statement or a description of the

statement and shall state with

particularity facts sufficient to show

that the statement constitutes a rule

under s. 120.52 and that the agency has

not adopted the statement by the

rulemaking procedure provided by

s. 120.54.

16. Rule 60K-17.004(3)(g), Florida

Administrative Code, provides as follows:

(3) Procedures for layoff within the

competitive area are as follows:

(g) Agencies shall then choose and

consistently apply one of two methods,

or another method as approved by the

Department of Management Services, in

determining the order of layoff. These

methods are commonly referred to as

"bumping."

1. Option 1: The employee at the top of

the list shall have the option of

selecting a position at the bottom of

the list based on the number of

positions to be abolished, e.g., 20

positions in the affected class, 5

positions to be abolished. The employee

at the top of the list can select any of

the positions occupied by the 5

employees at the bottom of the list.

The next highest employee on the list

then has the option of selecting any of

the positions occupied by the remaining

4 employees at the bottom of the list

with the process continuing in this

manner until the 5 employees at the top

of the list have exercised their

options.

2. Option 2: The employee at the top of

the list has the option of selecting any

position occupied by any employee on the

list with fewer retention points in the

class. The next highest employee and

remaining employees shall be handled in

a similar manner until the list is

exhausted.

17. The decision of the Department to

request approval from the Department of

Management Services to utilize another method

in determining the order of layoff, as

permitted by the clear provision of rule 60K-

17.004(3)(g), Florida Administrative Code,

does not constitute a "rule" as defined in

Section 120.52(15), Florida Statutes.

18. In Groves, et al. v. State Department

of Transportation , 2 FALR 1513A (1980), it

was held that an agency's definition of a

competitive area associated with a layoff did

not constitute a rule because even though its

application was general, it was limited to a

given layoff determination. "The actual

choice of a competitive area, however,

declares matters based on present facts under

rules already existing." Id. 1515A.

Similarly, the Department's choice to request

an alternate method of layoff in the instant

situation is limited to the current layoff

and is not intended to be utilized in any

future layoff the Department may be required

to effectuate.

19. In Department of Commerce v. Mathews

Corporation , 358 So. 2d 256 (Fla. 1st DCA

1978), the Department was charged with the

responsibility of setting prevailing wage

rates on public works projects. A contractor

on one of those projects challenged a

prevailing wage rate schedule that was

established by the Department, contending

that it constituted an invalid rule. While

the DOAH Hearing Officer concluded that the

prevailing wage rate schedule was a rule, the

court reversed on the following grounds:

The wage determinations were not

statements of general applicability.

While the wage rate determinations must

be included within the specifications of

each public works contract in the state,

the determination by agency Rule 8C-

2.05, Florida Admin. Code, is applicable

only to the construction of the

particular public building or other work

specified in the determination. The

determination thus has temporal as well

as geographical limitations. The

determinations have no prospective

application to any other contract - only

to the specific project involved in the

particular location. Nor do they set

wage standards for affected persons

extending some indefinite time in the

future.

20. As in Mathews , the Department's

decision to seek approval from DMS for the

alternate layoff method has no prospective

application. It is, therefore, not an agency

statement of general applicability as

contemplated by Section 120.52(15), Florida

Statutes.

21. In Department of Highway Safety and

Motor Vehicles v. Schluter , 705 So. 2d 81

(Fla. 1st DCA 1997), the court reversed an

Administrative Law Judge's determination that

three policies which the Florida Highway

patrol followed in investigating allegations

of employee misconduct were invalid rules not

adopted in compliance with Section 120.54,

Florida Statutes. The court stated that the

policies "cannot be considered as statements

of general applicability because the record

establishes that each was to apply only under

"certain circumstances." Id. 82.

22. The decision of the Department to seek

the approval of DMS for the alternate method

of layoff is likewise not a statement of

general applicability because it only applies

to the Career Service employees of the

Department and only for this particular

layoff situation.

23. Additionally, that decision is not

self-executing, it does not, in and of

itself, create or adversely affect rights,

and it does not have the direct and

consistent effect of law. See Lawrence v.

Department of Health and Rehabilitative

Services , 18 FALR 1435 (1996), affirmed , 690

So. 2d 594 (Fla. 1st DCA 1997).

24. Furthermore, the Department's letter

to DMS requesting approval for the alternate

layoff method merely constitutes an internal

agency memorandum that does not affect any

plan or procedure important to the public and

which has no application outside the

Department of Labor and Employment Security.

See Section 120.52(15)(a), Florida Statutes.

18. An additional reason which compels the dismissal of the

Petition in this case is the fact that the Respondent is not the

author of any "statement" that made any difference to any of the

employees subject to layoff. The "statement" that made all the

difference was the statement by the Department of Management

Services that approved the layoff procedure requested by the

Respondent. The Department of Management Services has not been

made a party to this case. Accordingly, the statement by the

Department of Management Services is not properly at issue in

this proceeding.

CONCLUSION

For all of the foregoing reasons, it is ORDERED:

That the Amended Petition in this case is hereby DISMISSED

and all relief requested by the Petitioners and the Intervenor is

hereby DENIED.

DONE AND ORDERED this 23rd day of February, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 1999.

ENDNOTES

1/ It is important to note, however, that the evidence in this

case fails to establish that any specific employee who was laid

off under the procedure chosen by the Respondent would have been

better off under either of the procedures described in Rule 60K-

17.004(3)(g), Florida Administrative Code, than under the

alternative method used by the Respondent.

2/ This doubt arises primarily from the conflict of interest

inherent in this type of situation. While the layoff procedure

chosen by the Respondent clearly diminished the job retention

prospects of some employees, it also enhanced the job retention

prospects of other employees. AFSCME's charge is to represent the

best interests of all of the employees in its bargaining units.

It is questionable whether AFSCME has a proper role in advancing

the interests of some bargaining unit members at the expense of

other bargaining unit members.

COPIES FURNISHED:

Jerry Gaynham, Esquire

Patterson & Traynham

Post Office Box 4289

Tallahassee, Florida 32315-4289

Edward A. Dion, General Counsel

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189

Linda Barge-Miles, Esquire

111 North Gadsden Street

Suite 100

Tallahassee, Florida 32301

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliot Building

Tallahassee, Florida 32399-0250

Mary Hooks, Secretary

Department of Labor and

Employment Security

Hartman Building, Suite 303

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the appellate

district where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of the order to be reviewed.