Department of Admin. v. Nelson, Nos. AB-11

CourtFlorida District Court of Appeals
Writing for the CourtROBERT P. SMITH, Jr.
Citation424 So.2d 852
PartiesDEPARTMENT OF ADMINISTRATION and Department of Agriculture and Consumer Services, Division of Forestry, Appellants, v. George C. NELSON, Appellee. George C. NELSON, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF FORESTRY, Appellee.
Decision Date08 December 1982
Docket NumberAB-12,Nos. AB-11

Page 852

424 So.2d 852
DEPARTMENT OF ADMINISTRATION and Department of Agriculture and Consumer Services, Division of Forestry, Appellants,
v.
George C. NELSON, Appellee.
George C. NELSON, Appellant,
v.
FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF FORESTRY, Appellee.
Nos. AB-11, AB-12.
District Court of Appeal of Florida,
First District.
Dec. 8, 1982.
Rehearing Denied Jan. 17, 1983.

Page 853

Samantha Boge, Asst. Gen. Counsel, Tallahassee, for Dept. of Admin., appellant/appellee.

Robert A. Chastain, Gen. Counsel, Tallahassee, for Dept. of Agriculture and Consumer Services, Div. of Forestry, appellant/appellee.

Stephen J. Keller of Patterson & Traynham, Tallahassee, for George C. Nelson, appellee/appellant.

ROBERT P. SMITH, Jr., Chief Judge.

These consolidated appeals, two of four cases decided today that are rooted in the same controversy, are from orders of the Division of Administrative Hearings. The Department of Administration (DOA) and the Division of Forestry of the Department of Agriculture and Consumer Services appeal from the hearing officer's order sustaining a challenge by George Nelson, a Division of Forestry firefighter, to DOA rules declaring a state employee ineligible for continued employment, and deeming him to have resigned, if he qualifies for another public office without his employing agency's and DOA's approval pursuant to section 110.233(4)(a), Florida Statutes (1980 Supp.). And Nelson appeals from another DOAH order rejecting his rule challenge to the effect that the Division of Forestry disapproved his candidacy for the Wakulla County School Board under personnel policies that were required to be, but were not, adopted as rules.

We find that section 110.233(4)(a) is a sufficient legislative predicate for DOA Rules 22A-7.10(4)(a) and 22A-13.04. We reverse the hearing officer's finding that the rules represent an invalid exercise of the delegated legislative power. We affirm the hearing officer's determination that the Forestry Division's policy disapproving Nelson's proposed candidacy was not invalid as an illicit rule. Thus we reject both of Nelson's rule challenges.

Since 1967 subsection (4)(a) of Florida's "Little Hatch Act" 1 has prohibited state career service employees to

[h]old, or be a candidate for, public office while in the employment of the state or take any active part in a political campaign while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the state.

Page 854

A 1970 amendment created this exception to (4)(a)'s broad proscription: 2

However, when authorized by his agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his state employment, an employee in the career service may be a candidate for or hold local public office.

Before the 1970 legislative session, nothing in section 110.092 distinguished (4)(a) activity from other proscribed political activity, insofar as administration and enforcement were concerned. Thus, whether one's violation was running for the school board while holding a career service job that conflicted with school board meeting times, as proscribed by (4)(a), or soliciting money in exchange for one's appointments or promotions, subsection (3), the statute was administered and enforced after the fact, retrospectively, by conventional disciplinary measures. That is to say, the employing agency initiated proceedings to suspend or dismiss the offending employee, and the Career Service Commission reviewed the agency's action. Section 110.061, Fla.Stat. (1969). But in 1970 the legislature added to subsection 110.092(4)(a), and to that subsection only, this particular language:

The Department of Administration 3 shall prepare and make available to all affected personnel who make such request a definite set of rules and procedures consistent with the provisions herein.

Exercising this rulemaking authority, DOA in 1973 promulgated Rule 22A-7.10D, precursor of the rules here challenged by Nelson:

D. Failure to Resign to Run for Public Office--

An employee who becomes ineligible for continuation of employment in accordance with Section 110.092(4)(a), Florida Statutes, shall be terminated without the right of appeal to the Career Service Commission.

Fla.Admin.Code R. 22A-7.10D (eff. 7-1-73, Supp. No. 33).

As elaborated by 1980 amendments, DOA's rules in chapter 22A-7, dealing with "Appointments, Status, Transfers, Separations and Layoffs," and Chapter 22A-13, "Political Activities, Unlawful Acts, and Penalties," implement the statutory restrictions on political activities by state employees. In Rule 22A-7.10, pertaining to "Separations," subsection (4) provides:

(4) Unauthorized Seeking or Holding of Public Office--

(a) An employee who seeks or holds office contrary to or without complying with the provisions of Section 110.233(4), Florida Statutes, shall be presumed to have become ineligible for continuation of employment and shall be deemed to have resigned from the Career Service without the right to appeal to the Career Service Commission.

(b) [provides for agency or DOA review pursuant to Section 120.57 processes, detailed in Chapter 22A-13, of free-form agency or DOA denial of authorization for local candidacies].

And DOA's Rule 22A-13.04, specifying "Penalties" for unauthorized political activities, provides:

An employee who qualifies as a candidate for or holds public office without obtaining prior approval according to this chapter shall be ineligible for continued state employment and shall be deemed to have resigned without right to appeal to the

Page 855

Career Service Commission. In addition, the employee may be subject to penalties set forth in Section 110.127, Florida Statutes.

The hearing officer declared the quoted rules an invalid exercise of delegated legislative authority, section 120.56, Florida Statutes (1979), because the automatic resignation provision "runs contrary to the spirit and purpose of the Career Service System in the State of Florida," section 110.301 et seq., Florida Statutes (1979). Specifically, the hearing officer stated, the "de novo fact-finding hearing" secured to discharged employees before the Career Service Commission, section 110.309(1), is "the due process hearing" that DOA's rules may not lawfully disturb; DOA rules may not lawfully displace Career Service standards for discharge on grounds of "insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, [and] misconduct ...," section 110.227(1); and DOA rules may not lawfully supplant Commission authority to reduce an agency dismissal to a suspension if the Commission thinks the infraction "did not justify the severity of the action taken" by the employing agency. Section 110.309(4), Fla.Stat. (1979). The hearing officer's order states:

Relief sought before the Career Service Commission is exclusive absent some alternative procedure through a collective bargaining agreement and in that instance the affected employee may pursue this alternative form of relief. See Subsection 110.305(5), Florida Statutes. There is no concurrent or exclusive jurisdiction with the State of Florida, Department of Administration, to cause the termination or dismissal of a permanent status Career Service employee premised upon that employee's violation of the statute and rules dealing with offering himself as a candidate for office or holding that office as a local public official.

This controversy arose when George Nelson, employed in permanent status as a firefighter for the Division of Forestry, sent a letter to his supervisor on July 14, 1980, stating that he intended to run for the Wakulla County School Board. Nelson's letter stated that he had read and understood the applicable rules. He requested that the Division authorize his candidacy before July 22, the last day to qualify.

Because of the short notice given by Nelson, Division officials orally denied his request on July 18 and again on July 21. Nelson nevertheless took a qualifying loyalty oath and made a statement of his candidacy on July 22, 1980. On July 24, Nelson's supervisor again denied Nelson permission to be a candidate, this time by written memorandum, and attached a copy of another memorandum by the Division head stating that Nelson's candidacy should be disapproved because of potential scheduling conflicts between Nelson's state job as a forest ranger and the duties of a school board member, and because controversies in local government could adversely affect the Division's ability to carry out its duties.

In the following weeks, Nelson met several times with Forestry officials and their superiors in the Department of Agriculture and Consumer Services, who sought to dissuade Nelson from his candidacy because his only alternative was resignation without right of appeal. Nelson refused to withdraw, arguing that there was no conflict of interest. On August 12, the Department's chief of personnel management sent Nelson a letter stating that under section 110.233(4)(a) and Rule 22A-13.04, Nelson was deemed to have resigned on August 15 without right of appeal to the Career Service Commission because he qualified for office without the necessary prior approval. The letter pointed out that Nelson could request section 120.57 proceedings on the Department's decision not to approve Nelson's candidacy. See Rule...

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27 practice notes
  • Bayonet Point Regional Medical Center v. Department of Health and Rehabilitative Services, No. BP-272
    • United States
    • Florida District Court of Appeals
    • November 24, 1987
    ...Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). This p......
  • State, Dept. of Ins. v. Insurance Services Office, No. VV-367
    • United States
    • Florida District Court of Appeals
    • May 3, 1983
    ...judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer. In Department of Administration, et al. v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA 1982), this court reversed a hearing officer's order invalidating an agency rule as being beyond its legislative authorit......
  • Sunshine Jr. Stores, Inc. v. State, Dept. of Environmental Regulation, No. BQ-98
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 1990
    ...of Professional Reg., Bd. of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984); Department of Admin. v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA Page 1181 1982); State Dep't of Health & Rehab. Servs. v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981). The Depa......
  • Florida Waterworks Ass'n v. Florida Public Service Com'n, Nos. AT-46
    • United States
    • Court of Appeal of Florida (US)
    • July 15, 1985
    ...Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA Natelson v. D......
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27 cases
  • Bayonet Point Regional Medical Center v. Department of Health and Rehabilitative Services, No. BP-272
    • United States
    • Florida District Court of Appeals
    • November 24, 1987
    ...Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). This p......
  • State, Dept. of Ins. v. Insurance Services Office, No. VV-367
    • United States
    • Florida District Court of Appeals
    • May 3, 1983
    ...judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer. In Department of Administration, et al. v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA 1982), this court reversed a hearing officer's order invalidating an agency rule as being beyond its legislative authorit......
  • Sunshine Jr. Stores, Inc. v. State, Dept. of Environmental Regulation, No. BQ-98
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 1990
    ...of Professional Reg., Bd. of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984); Department of Admin. v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA Page 1181 1982); State Dep't of Health & Rehab. Servs. v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981). The ......
  • Florida Waterworks Ass'n v. Florida Public Service Com'n, Nos. AT-46
    • United States
    • Court of Appeal of Florida (US)
    • July 15, 1985
    ...Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA Natelson v. D......
  • Request a trial to view additional results

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