705 So.2d 81 (Fla.App. 1 Dist. 1997), 97-730, Department of Highway Safety and Motor Vehicles v. Schluter

Docket Nº:97-730.
Citation:705 So.2d 81, 23 Fla. L. Weekly D 192
Party Name:DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Gary SCHLUTER and The Florida Association of State Troopers, Inc., Appellees.
Case Date:December 31, 1997
Court:Florida Court of Appeals, First District

Page 81

705 So.2d 81 (Fla.App. 1 Dist. 1997)

23 Fla. L. Weekly D 192

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant,

v.

Gary SCHLUTER and The Florida Association of State Troopers, Inc., Appellees.

No. 97-730.

Florida Court of Appeals, First District.

December 31, 1997

Rehearing Denied Jan. 30, 1998.

Enoch J. Whitney, General Counsel, Judson M. Chapman, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Appellant.

Jerry G. Traynham of Patterson & Traynham, Tallahassee, for Appellees.

ERVIN, Judge.

The Department of Highway Safety and Motor Vehicles (Department) appeals a final order of the administrative law judge (ALJ) determining that each of six policies, which the Florida Highway Patrol follows in investigating allegations of employee misconduct, constitutes a rule that was never adopted in compliance with section 120.54, Florida Statutes

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(Supp.1996). The Department asserts that the ALJ erred in determining that its six challenged policies constituted rules, as defined in section 120.52(15)(a), Florida Statutes (Supp.1996). We reverse as to the first three of the Department's policy statements, but affirm as to the remaining three.

The prehearing stipulation described five of the challenged policies in the following language:

[1.] The Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station, and permitting them to leave their residences during duty hours only with the permission of their superiors.

[2.] The Respondent has a policy of ordering law enforcement officers under investigation, in certain circumstances, to have no contact with any person who may be a witness in the course of the investigation.

[3.] The Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment.

[4.] The Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer.

[5.] The Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation.

In addition, the ALJ found as a matter of fact in respect to the sixth (and only other) policy involved:

[6.] Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee's answer to a question.

Section 120.52(15)(a), provides:

"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.

From a plain reading of the above statute, it appears that the analysis as to whether an agency's policy statement complies with the definition of a rule requires first a determination regarding whether the policy can be said to be one of general applicability, and, if so, whether the internal memorandum exception applies.

We agree with appellant that the first three of the six policies do not constitute rules. They cannot be considered statements of general applicability because the record establishes that each was to apply only under "certain circumstances." Consequently, as in Department of Highway Safety & Motor Vehicles v. Florida Police Benevolent Ass'n, 400 So.2d 1302 (Fla. 1st DCA 1981), these statements should be considered effective merely as guidelines, in that their application was subject to the discretion of the employee's supervisor. The Department's first three declarations cannot be said to have been "intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Department of Banking & Fin., 346 So.2d 569, 581 (Fla. 1st DCA 1977) (emphasis added). We therefore reverse the ALJ's determination that they constituted rules under section 120.52(15).

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The final three policies, however, do apply uniformly to all law enforcement officers employed by the Department without exception. On their face, they comply with section 120.52(15)'s definition of a rule as agency statements of general applicability that prescribe the Department's procedure or practice requirements pertaining to officers under investigation. Virtually the only evidence the ALJ had before him regarding this issue was the parties' stipulation pertaining to law enforcement officers under investigation. Given the form of such evidence, we conclude that the ALJ must be considered to have competent, substantial evidence from which he could lawfully find, as to the final three stipulated statements, that the Department had an established policy that had been systematically communicated to the agency personnel with the intention that it be implemented with the force of law. Indeed, such a conclusion is manifest in the language particularly contained in policy number 5, disclosing that the Department "has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation." (Emphasis added.)

The word "policy," used in each of the three statements, is not a term of art. It has a commonly understood meaning. It is defined by one source as "a principle, plan, or course of action, as pursued by a government, organization, individual, etc." Webster's New World Dictionary 1102 (2d college ed.1980). We therefore affirm the ALJ's order as to his determination that the final three policies constituted invalid, nonadopted rules.

The only remaining question is whether these three policy statements can be said to be subject to the internal memoranda exception to the statutory definition of a rule. They are not.

The internal management memorandum exception, as statutorily defined, cannot apply if the private interests of any person are affected by the policy. In this case, the private interests of each officer placed under investigation are affected, because the policies restrict the means by which the employee can defend himself or herself against disciplinary charges which, if established, could lead to separation or dismissal from employment, thereby affecting the officer's property right to continued employment. Pursuant to the Police Officer's Bill of Rights, codified at sections 112.531 through 112.535, Florida Statutes (1995), highway patrol officers have a property interest in continued employment. See Grice v. City of Kissimmee, 697 So.2d 186 (Fla. 5th DCA 1997). Such property interest is also created by section 321.06, Florida Statutes (1995), which provides that highway patrol officers may only be disciplined for cause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494 (1985) (Ohio statute providing that civil service employees are entitled to retain their positions unless they commit acts of misfeasance, malfeasance, or nonfeasance, plainly creates a property interest in continued employment). Once the legislature has conferred a property interest in public employment, such interest may not be deprived without appropriate due process procedures. Id. at 541, 105 S.Ct. at 1492-93. The Court in Loudermill expressly characterized an employee's property interest in retaining employment as a "private interest." Id. at 542-43, 105 S.Ct. at 1493-94. Accordingly, the policies that the agency has established, which either protect or impair employees' procedural safeguards in proceedings which could potentially deprive an employee of his or her continued employment, also necessarily affect the employee's private interests. Therefore, these policies do not fit within the internal management memorandum exception. 1

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The dissent's primary focus, as to the last three of the disputed procedures, appears to be that because none of the statements had been reduced to writing before the stipulation was entered, they could not be considered to comply with section 120.52(15)'s definition of rule. In espousing this position, Judge Benton has failed to cite any authoritative...

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