Florida/Georgia Personal Injury & Workers Compensation

...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....

...ies 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....

...cy 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....

...ermination procedures affording a fair hearing but without recourse to the Career Service Commission. Seen in this light, and with appropriate deference to DOA's interpretative powers as the agency to whom the legislature committed implementation of section 110.233(4)(a), the challenged rules must be judged a lawful exercise of the legislatively delegated authority....

...Several considerations impel us to this view: First and foremost, the 1970 legislature took pains to substitute, for the Career Service Commission's case-by-case method of defining (4)(a) violations and their consequences, "a definite set of rules and procedures consistent with the provisions" of section 110.233(4)(a), to be promulgated by DOA....

...gency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Section 110.227(1), Fla. Stat. (1979). DOA, on the other hand, determined that the critical issue arising under section 110.233(4)(a) — whether an employee's candidacy or holding of local public office involves an "interest which conflicts or activity which interferes" with state employment — should if possible be determined prospectively....

...Accordingly, we uphold Rules 22A-7.10(4)(a) and 22A-13.04 as having been promulgated by DOA in the lawful exercise of delegated legislative authority. Using DOA's appeal as a vehicle to present to us a related constitutional question that the hearing officer had no authority to decide, Nelson argues that the statute itself, section 110.233(4)(a), unconstitutionally delegates the legislative authority without adequate standards for its exercise....

...The order in No. AB-11, declaring DOA's rules invalid, is REVERSED. The order in No. AB-12, rejecting Nelson's challenge to policy not promulgated as rules, is AFFIRMED. JOANOS and THOMPSON, JJ., concur. NOTES [1] Section 110.092, Fla. Stat. (1967); section 110.233, Fla. Stat. (1980 Supp.). [2] Ch. 70-277, § 1, Laws of Fla.; section 110.233(4)(a), Fla....

...d Retirement of the Department of Administration. Subsequently the name of the Division was changed and, by chapter 79-190, reference to the Division was replaced by a general reference to the Department of Administration. The statute was renumbered § 110.233(4)(a) by reviser in 1979....

...The general counsel’s opinion was issued on November 1, 1979, and concluded that the operation of Section 99.-012(7) was restricted to the provisions of Section 99.012 generally and did not affect the requirements of Section 110.092(4)(a) *1313 [now 110.233(4)(a)] 2 which requires that a Career Service employee get permission to run for office before becoming a candidate....

...hich opined that Humphries was an “officer” and “subordinate personnel” within the meaning of Section 99.012(7). However, the opinion specifically noted that it was limited to construction of Section 99.012(7) and did not purport to construe Section 110.233(4) and concluded: “Therefore, Florida highway patrol officers should not rely upon this ruling as a decision construing Section 110.233(4), F.S.” Humphries first argues that any violation of law or policy on his part was not willful....

...While Hum-phries may have been acting in good faith when he first considered becoming a candidate, by February, 1980, he was well aware of the Department’s position and that of the Attorney General regarding his candidacy. In spite of this, he ignored the requirements of Section 110.233(4) and continued to actively campaign....

...We must also conclude that the Department’s interpretation of the law is correct. Section 99.012(7) begins “For purposes of this section .... ” This language is not ambiguous and clearly restricts the application of subsection (7) to Section 99.-012. We reject appellant’s argument that Sections 99.012(7) and 110.233(4)(a) are so repugnant as to justify an implied repeal of one by the other....

...and requires these persons to resign from their present office before becoming a candidate for another public office; Section 99.012(7) exempts certain named groups from this requirement, allowing them to take a leave of absence rather than resign. Section 110.233 specifically regulates the political activities of Career Service employees and is merely one portion of a comprehensive legislative enactment governing all aspects of state employment....

...oup of Career Service employees, we decline to find an implied repeal in Section 99.012(7). Implied repeal of statutes is not favored, State ex rel. School Board of Martin County v. Dept. of Education, 317 So.2d 68 (Fla.1975), and we find nothing in Section 110.233 which would lead us to conclude that the legislature intended to exempt Florida highway patrolmen from its coverage....

...cted or appointed officers. Those who are must comply with the requirements of both statutes. Assuming that Humphries was included within the purview of Section 99.012 and then exempted by Section 99.012(7), he would still be required to comply with Section 110.233(4)(a)....

...A campaign manager had been hired; leaflets, cards and other election paraphernalia had been prepared and were being distributed to potential voters. These activities were officially sanctioned by Humphries and support the conclusion that he was a candidate within the meaning of Section 110.233(4)(a) and was seeking public office within the meaning of Section 99.012(7), even though he had not yet qualified....

While not applicable to school districts, section 110.233(2), Florida Statutes, offers direction by prohibiting

Department of Administration (DOA) implementing section 110.233(4)(a), Florida Statutes (1979). That statute

substantially the following question: Does section 110.233(4), Florida Statutes, prohibit a career service

...System hold office as a member of the county or state executive committee of a political party? SUMMARY: Until judicially or legislatively determined to the contrary, state employees within the Career Service System may not, under the provisions of s. 110.233 (4), F. S., run for or hold office as members of a county or state executive committee of a political party. Section 110.233 (4)(a), F....

...n regulating political activities of its employees than it would in regulating the political activities of the general public. See generally Ex Parte Curtis , Curtis, 106 U.S. 371 (1882); State v. Stuler, 122 So.2d 1 , 3 (Fla. 1960); and AGO 072-62. Section 110.233 , F....

...S., does not deny a career service employee's right to political expression and activity, but rather proscribes specifically defined activities. See Department of Administration Rule 22A-13.03(1), F.A.C., which states that all employees in the career service are governed by the provisions of s. 110.092, F. S., (now s. 110.233 ), relating to political activities and unlawful acts. Section 110.233 does not prevent a career service employee from actively campaigning, provided that such activities take place at a time when he is not on duty or expected to perform services for the state for which he is being compensated and he doe...

...n to secure support for, or oppose, a candidate, party, or issue or affect the results thereof or use any promise of reward or threat of loss to encourage or coerce any employee to support or contribute to a political issue, candidate, or party. See s. 110.233 (4) and (5). Cf . AGO 074-46 which recognizes a distinction between active and passive political activities under the provisions of s. 110.233 (then s. 110.092). Section 110.233 (4)(a), however, does expressly prohibit a career service employee from holding, or being a candidate for, public or political office while he is a state employee....

...8 So. 306 (Fla. 1928) (nominees of political party are not public officers even when law regulates their selection). Thus, membership on the county or state executive committee of a political party would not appear to fall within the proscription of s. 110.233 (4)(a), prohibiting a state career service employee from holding public office. Section 110.233 (4)(a), F....

...When used in this context, a `political office' would include a political party office. While the term `political office' is not defined, it appears that the terms `political office' and `public office' are not synonymous as both terms are used in the disjunctive sense in the first sentence of s. 110.233 (4)(a), and the term `political office' is not employed in the second sentence of s. 110.233 (4)(a). See also the title to ch. 70-277, `AN ACT relating to state employees, amending section 110.092, Florida Statutes [now s. 110.233 ], to permit a state employee in the classified service to be a candidate for or hold a local public office under certain conditions.' Generally, words in a statute will not be construed as surplusage if a reasonable construction which will give them some force and meaning is possible....

...Bland, 66 So.2d 59 (Fla. 1953), and State ex rel . Florida Industrial Comission v. Willis, 124 So.2d 48 (1 D.C.A. Fla., 1960), cert. denied , 133 So.2d 323 (Fla. 1961); cf . 82 C.J.S. Statutes s. 343. Therefore, in order to give meaning to all the words in s. 110.233 (4)(a), the prohibition contained therein must be considered to encompass more than merely `public offices.' While not a `public office,' a position or membership on the state or county executive committee of a political party would appear to qualify as a political office and would thus fall within the prohibition contained in s. 110.233 (4)(a), stating that a career service employee may not hold or be a candidate for a `political office.' See 29 C.J.S....

...ction of such officers and committees and their powers and duties. Accordingly, I am of the opinion that, until judicially or legislatively determined to the contrary, state employees within the Career Service System may not, under the provisions of s. 110.233 (4)(a), F....

...Fla., 1976) (statutory exceptions are to be strictly construed against one who attempts to take advantage of the exception). As I am of the opinion, however, that membership on a state or county executive committee of a political party is not a `public office,' the foregoing exception to the general prohibition contained in s. 110.233 (4)(a) is not applicable to the instant inquiry....

...r issue or from participating in any political campaign during his off-duty hours so long as such activities are not in conflict with the provisions of subsection (1) or s. 110.223 .' (Emphasis supplied.) Such activity is in my opinion prohibited by s. 110.233 (4)(a), F. S.; therefore, under the provisions of ss. 104.31 (3) and 110.233 (4)(a), career service employees may not serve on such executive committees of political parties....