Nelson v. Department of Agriculture and Consumer Services, AB-196

• Decision Date: 08 December 1982
• Docket Number: No. AB-196,AB-196
• Parties: George C. NELSON, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 860

424 So.2d 860

George C. NELSON, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.

No. AB-196.

District Court of Appeal of Florida First District.

Dec. 8, 1982.

Rehearing Denied Jan. 17, 1983.

Stephen J. Keller of Patterson & Traynham, Tallahassee, for appellant.

Robert A. Chastain, Gen. Counsel, Tallahassee, for appellee.

ROBERT P. SMITH, Jr., Chief Judge.

This is a companion case to another decided today, in which we sustained against Nelson's rule challenge, section 120.56, Florida Statutes (1979), rules of the Department of Administration (DOA) implementing section 110.233(4)(a), Florida Statutes (1979). That statute prohibits career service employees from campaigning for or holding a public office that is found by the employing agency, or by DOA, to involve an interest conflicting or an activity interfering with his state employment. Rules 22A-7.10(4)(a), 22A-13.04, Fla.Admin.Code; Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982).

Agreeably to DOA procedural rules implementing the statute, ¹ a section 120.57(1) hearing was conducted by a Division of Administrative Hearings hearing officer, acting for the Department of Agriculture and Consumer Services ("Agriculture"), to review Agriculture's free-form decision denying Nelson authorization to run for the Wakulla County School Board while retaining employment as a firefighter in the Division of Forestry. Between July 14 and August 15, 1980, Nelson advised his superiors that he intended to run for the school board; they informally advised him that he could not, because of possible conflicts with his state employment; Nelson took a qualifying loyalty oath as a candidate; a series of further informal meetings failed to dissuade Nelson from his candidacy, and he failed to convince his superiors that there would be no conflict or interference in his holding the office. On August 12, the Department notified Nelson, pursuant to DOA rules, that Nelson was considered as having resigned, and he was terminated as of August 15.

Nelson's self-styled "appeal" of his "dismissal" was accepted by the Agriculture as invoking Nelson's right to section 120.57 review proceedings pursuant to Rule 22A-13.032. Agriculture referred the matter to DOAH, whose hearing officer received evidence and entered a recommended order, adopted by the Agriculture, which denied Nelson relief, finding that Nelson had failed to ask for a Rule 22A-7.10(4)(b) remedy, namely, formal APA proceedings to determine whether Nelson's school board candidacy, or holding the office, would conflict or interfere with his state job. Companion Rule 22A-13.032(1), the hearing officer held, does not independently entitle a party to section 120.57 proceedings for the determination of that issue. At any rate, the hearing officer said, since both rules had been held invalid by his order in the companion case, Nelson had recourse before the Career Service Commission should Agriculture forfeit Nelson's job for his having undertaken a political candidacy without permission.

In view of our decision today upholding Rules 22A-7.10(4)(a) and 22A-13.04, Agriculture was obliged to give Nelson section 120.57 proceedings determining the disputed issue of whether his candidacy for the school board, and his holding that office if successful in his campaign, would conflict with or interfere with his duties as a firefighter.

Nelson was entitled to that APA remedy, extended to him by the DOA rule implementing the controlling statute, whether or not Nelson had already qualified as a candidate before timely requesting 120.57 proceedings before Agriculture. While DOA's rules for determining questions of conflict and interference are intended to operate prospectively if possible, enabling an affected employee to postpone his candidacy until final agency action has been taken on his request, nothing in DOA's implementing rules suggest that the employee should lose his entitlement to APA proceedings if they are not completed, or begun, by the deadline for qualifying as a candidate; indeed, the rules bear a contrary inference. ² But if they did not bear that inference, APA concepts would dictate the same result, for conceptually an agency's free-form action refusing an employee authorization for a candidacy is, with APA remedies timely requested and as yet unfulfilled, no agency action at all. General Development Utilities, Inc. v. Department of Environmental Regulation, 417 So.2d 1068, 1070 (Fla. 1st DCA 1982); Szkolny v. State Awards Committee, 395 So.2d 1290, 1294 (Fla. 1st DCA 1981); United States Service Industries-Florida v. State Department of Health and Rehabilitative Services, 385 So.2d 1147, 1148 (Fla. 1st DCA 1980); Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810, 814-15 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979); Capeletti Brothers, Inc. v. State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977):

Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily.

Nelson was entitled to qualify as a candidate, to take his opportunity to change the agency's mind in section 120.57 proceedings, and to assume the risk of failure.

Thus we find that the hearing officer erred in concluding that Nelson, by qualifying as a candidate in the face of Agriculture's free-form refusal to authorize it, either waived entitlement to APA remedies to obtain that authorization or rendered those remedies "moot," as the hearing officer put it:

[I]t is obvious that a determination by the review procedure contemplated by Rule 22A-13.032, Florida Administrative Code, is moot.... [W]hen Nelson decided to go forward with his candidacy by taking the candidate's oath on July 22, 1980, after being advised on July 18 and July 21, 1980, that it would not be approved ... the effect of his decision was to forego the review procedure set forth in Rule 22A-13.032, Florida Administrative Code. Therefore, the only purpose which the formal hearing held in this matter has served is to confirm the factual development of this case, i.e., the fact of Nelson's decision to run ..., the oral representations to him ... that he would not be allowed to run; his taking of the oath of candidacy ...; the ensuing discussions by various officials within the agency in an attempt to persuade him from pursuing this course, having failed to gain the necessary permission to offer his candidacy; and the eventual termination of his employment....

We find, to the contrary, that Agriculture offered Nelson unrestricted APA proceedings to determine retrospectively whether authorization for his candidacy should have been granted; that Nelson understood the offer to be as comprehensive as it was, and he undertook to show that there was neither "conflict" nor "interference" sufficient for Agriculture to deny him authorization to run; and, indeed, that the hearing officer, by findings he deemed superfluous, but which we deem decisive, found that Nelson's proposed school board duties would in fact conflict or interfere with his duties as a state forest ranger.

Thus, Agriculture's letter to Nelson of August 12, 1980, was clear notice to...