Cook v. Division of Personnel, Dept. of Administration, GG-32

Citation356 So.2d 356
Decision Date10 March 1978
Docket NumberNo. GG-32,GG-32
PartiesE. Helen COOK, Petitioner, v. DIVISION OF PERSONNEL, DEPARTMENT OF ADMINISTRATION, Respondent.
CourtFlorida District Court of Appeals

Jerry G. Traynham, of Ben R. Patterson Law Offices, Tallahassee, for petitioner.

Mary E. Clark, Tallahassee, for respondent.

MILLS, Acting Chief Judge.

Petitioner seeks review of a final order determining that Florida Administrative Code Rule 22A-7.10B is a valid rule enacted by the Division of Personnel, and does not conflict with the provisions of Chapter 110, Florida Statutes (1975). The issue here is whether Rule 22A-7.10B is a valid exercise of delegated legislative authority.

The Rule provides that an employee within the Career Service who is absent without authorized leave of absence from work for three consecutive days shall be deemed to have abandoned the position and to have resigned. The Rule denies the employee the right to appeal to the Career Service Commission but gives the employee the right to petition the State Personnel Director for a review of the facts in the case and for a ruling as to whether the circumstances constitute an abandonment of the position.

The Petitioner, a Career Service employee of the Department of Transportation, was notified by the Department that because of certain facts she had abandoned her position with it and was no longer an employee of the Department. She was stricken from the rolls of employees and all actions were taken that would normally take place when an employee resigns or is terminated. As provided by the Rule, the State Personnel Director held a hearing and ruled that Petitioner had abandoned her position and was no longer an employee of the Department. Petitioner then initiated a Section 120.56, Florida Statutes (1975), hearing, seeking an administrative determination of Rule 22A-7.10B of the Division of Personnel, Department of Administration, which resulted in the order under review by us.

Petitioner argues that the Division's authority to promulgate rules is subject to the limitations provided by Sections 110.041(2)(a), 110.042(22) and 110.061(1), (2)(a), Florida Statutes (1975). These Sections require that any rule promulgated must: (1) insure that appeals arising under Chapter 110, or rules adopted thereunder, are heard by the Career Service Commission; (2) insure that a permanent Career Service employee may only be terminated for cause; and (3) provide that suspensions, reductions in pay, transfers, layoffs, demotions and dismissals are heard by the Career Service Commission. Petitioner contends that Rule 22A-7.10B makes a number of impermissible encroachments upon Chapter 110 by denying to employees, who have separated under certain circumstances, the right to appeal their termination to the Career Service Commission, by denying the employee the right to have "cause" for termination determined by the Career Service Commission, and by providing for the hearing of appeals by persons other than the Career Service Commission.

The Division has broad rulemaking powers in connection with personnel matters. In accordance with the mandates of Section 110.022, the Division established Rule 22A-7.10 describing personnel actions designated "separations". A resignation is one form of separation under this Rule. Resignations may be written or nonwritten as provided in Rule 22A-7.10B. Employees who resign in writing have no right to appeal to the Career Service Commission, nor do employees who abandon their position, or in effect, resign without the written explanation. Rule 22A-7.10B relates directly to the establishment and maintenance of uniform attendance and leave policies (110.022(1)(e)), relates to separations of employees in the Career Service (110.022(1)(g)), and relates to the maintenance of a current and sound program of uniform personnel administration (110.022(1)(i)). Therefore, the subject matter of the challenged Rule falls within the scope of the Division's statutory rulemaking authority.

Section 110.061(2)(a) provides for the investigation and hearing of appeals by the Career Service Commission in six types of actions: suspensions, reductions in pay, transfers, layoffs, demotions, and dismissals. The Career Service Commission only has jurisdiction to hear appeals from the actions enumerated in the statute. Resignation, either by writing or by abandonment, does not appear in that Section. Therefore, Rule 22A-7.10B does not conflict with Section 110.061(2)(a) nor does it conflict with Section 110.041(2)(a) since the only appeals arising under Chapter 110 are the appeals enumerated in Section 110.061(2)(a).

While the term resignation is nowhere mentioned in Chapter 110, this form...

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9 cases
  • Childers v. State
    • United States
    • Florida District Court of Appeals
    • June 28, 2006
    ...Servs., 618 So.2d 749, 754 (Fla. 1st DCA 1993) ("In making this determination, we recede from Cook [v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978)], insofar as it conflicts with our decision in [Board of Regents v.] Heuer [, 332 So.2d 626 (Fla. 1st......
  • Childers v. State
    • United States
    • Florida District Court of Appeals
    • June 28, 2006
    ...Servs., 618 So.2d 749, 754 (Fla. 1st DCA 1993) ("In making this determination, we recede from Cook [v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) ], insofar as it conflicts with our decision in [Board of Regents v.] Heuer [, 332 So.2d 626 (Fla. 1s......
  • Machules v. Department of Admin.
    • United States
    • Florida District Court of Appeals
    • November 25, 1986
    ...or that the Department is wholly without any statutory authority for promulgation of the rule, Cook v. Division of Personnel, Dept. of Admin., 356 So.2d 356 (Fla. 1st DCA 1978). But there is no statute in chapter 110, that I have found, empowering the agency to set jurisdictional time limit......
  • Department of Admin. v. Nelson
    • United States
    • Florida District Court of Appeals
    • December 8, 1982
    ...sustained a DOA rule, promulgated with proper legislative authority, having that effect. In Cook v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978), this Court sustained against a like challenge another section of DOA Rule 22A-7, to the effect tha......
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