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discussing the doctrine of expressio unius est exclusio alterius
Summary of this case from Vialva v. NunezOpinion
No. 3D13–2196.
2014-08-22
Jordan M. DELONG, Appellant, v. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellee.
Gene Johnson, Tallahassee; Law Offices of Slesnick and Casey, LLP, and James C. Casey, for appellant. Emily J. Norton, Assistant General Counsel, Tallahassee, for appellee.
Gene Johnson, Tallahassee; Law Offices of Slesnick and Casey, LLP, and James C. Casey, for appellant. Emily J. Norton, Assistant General Counsel, Tallahassee, for appellee.
Before ROTHENBERG, LOGUE and SCALES, JJ.
SCALES, J.
Delong appeals a final order of the Florida Public Employees Relations Commission (“PERC”) dismissing the appeal of his termination for lack of jurisdiction. We affirm.
I. FACTS
Delong was hired as a sworn law enforcement officer by Florida's Department of Environmental Protection (“DEP”) in 2007.
In 2012, the Florida Legislature enacted House Bill 1383 which, among other things, consolidated the DEP's Division of Law Enforcement with the Division of Law Enforcement of The Florida Fish & Wildlife Conservation Committee (“FWC”).
The relevant portion of House Bill 1383, related to the transfer of DEP law enforcement personnel to the FWC, reads as follows: “... employees who are transferred from the Department of Environmental Protection ... to fill positions transferred to the Fish and Wildlife Conservation Commission shall retain and transfer any accrued annual leave, sick leave, and regular and special compensatory leave balances.” Fla. HB 1383, § 5 (2012).
The effective date of House Bill 1383 was July 1, 2012; hence, on July 1, 2012, Delong was transferred from the Law Enforcement Division of the DEP to the Law Enforcement Division of FWC.
Later that month, on July 30, 2012, Delong was involved in a motor vehicle crash at John Pennekamp Coral Reef State Park. After the accident, detectives from the Monroe County Sheriff's Office issued Delong a criminal citation for leaving the scene of an accident involving property damage.
On March 26, 2013, FWC delivered notice to Delong that FWC would be terminating Delong's employment with FWC, with such termination effective April 15, 2013. On May 2, 2013, FWC confirmed its dismissal of Delong with a hand-delivered letter outlining the basis for the dismissal.
While not relevant to this appeal, FWC alleged that Delong's conduct involving the July 30, 2012, motor vehicle crash violated certain standards applicable to career service employees.
FWC's May 2, 2013, dismissal notice indicated that Delong had been on “probationary status” in Florida's career service system, and therefore Delong had no right to appeal his termination to PERC.
Pursuant to Section 110.227, Florida Statutes (2012), PERC has jurisdiction to hear appeals filed by permanent status career service employees.
Notwithstanding FWC's assertion that Delong had no PERC appeal rights, Delong appealed his dismissal to PERC.
On May 31, 2013, FWC filed a motion to dismiss Delong's appeal alleging that PERC lacked jurisdiction to hear Delong's appeal of his termination. Specifically, FWC asserted that Delong became a “new employee” of FWC on July 1, 2012 (i.e., the effective date of the transfer outlined in House Bill 1383), and, pursuant to sections 110.213 and 110.217, Florida Statutes, Delong was required to complete at least one year of probationary employment with FWC in order for PERC to have jurisdiction to hear Delong's appeal.
FWC relied upon Rule 60L–33.003(2)(d), F.A.C. which, prior to being amended in January 2014, read, in pertinent part, as follows:
.Rule 60L–33.003 was promulgated by Florida's Division of Management Services which, pursuant to Section 110.217(1), Florida Statutes, is directed to promulgate uniform administrative rules governing, inter alia, state agency employee employment status.
(d) Probationary or Permanent Status—An employee shall be given probationary status or permanent status in accordance with the following.
1. Upon original appointment, promotion or demotion to a different broadband level, or any time an employee moves between agencies, an employee shall be given probationary status unless ... the legislature has designated that an employee shall be moved but shall not have status as a new employee.
On July 19, 2013, after conducting an evidentiary hearing, a PERC hearing officer issued a recommended order concluding that PERC lacked statutory authority to hear appeals from probationary employees challenging their dismissal.
On August 13, 2013, PERC issued its final order adopting the hearing officer's recommended order. This appeal timely ensued.
II. ANALYSIS
The issue before the court is whether PERC had jurisdiction to hear Delong's appeal of his dismissal from FWC. Specifically,the court must decide whether PERC's determination that Delong was a probationary employee—rather than a permanent status employee—was clearly erroneous.
While an agency's interpretation of a statute generally is subject to de novo review by an appellate court, see§ 120.68(7)(d), Fla. Stat. (2012); Brown v. State Comm'n on Ethics, 969 So.2d 553, 556 (Fla. 1st DCA 2007), an appellate court is required to give deference to an agency interpretation of a statute within the agency's substantive jurisdiction, and will not reverse the agency unless the interpretation is clearly erroneous. See Brown, 969 So.2d at 557. Pursuant to Section 447.207(8), Florida Statutes, PERC is expressly designated to hear appeals of dismissals of any “permanent employee” in the State Career Service System “in the manner provided in Section 110.227.” Hence, Sections 4 and 5 of House Bill 1381 (i.e., the sections regarding the transfer to FWC of DEP's law enforcement personnel), the statutes relating to PERC's jurisdiction, and the rules promulgated by DMS by virtue of such statutes, are plainly within PERC's substantive jurisdiction; therefore we review the order on appeal—which necessarily involved PERC's interpretation of these statutes and rules—using the “clearly erroneous” standard.
PERC has jurisdiction to review appeals of permanent status employees in Florida's career service system who challenge their dismissal from employment. §§ 110.227(5)(a); 447.207(8), Fla. Stat (2012).
An employee who has not attained permanent status serves at the pleasure of the agency head, and that employee may be dismissed at the agency head's discretion. § 110.217(2) Fla. Stat. An employee on probationary status attains permanent status upon successful completion of at least a one-year probationary period in his or her current position. § 110.217(2) Fla. Stat.
At oral argument, Delong conceded that PERC followed the dictates of the version of Rule 60L–33.003(d) then in effect.
Delong, however, argues that PERC's application of this rule to his situation effectively deprives him of a vested property right, to wit: his status as a permanent employee, which was earned while Delong was employed by DEP. We disagree.
Florida's Department of Management Services (“DMS”) is expressly directed by Section 110.217(1), Florida Statutes, to promulgate rules regarding the employment status of agency employees. Pursuant to that authority, DMS promulgated the subject rule.
.Section 110.217(1) reads in its entirety as follows: “(1) The department shall develop uniform rules regarding original appointment, promotion, demotion, reassignment, lateral action, separation, and status that must be used by state agencies.” (emphasis added)
The rule provides uniform guidance to state agencies regarding the probationary/permanent status of employees who, by legislative action, are transferred from one department to another.
The rule states that unless the legislation effectuating the transfer designates that transferred employees shall not have “new employee” status, then all transferred employees shall have “new employee” status. Put another way, the rule requires that all employees who are transferred from one agency to another are considered probationary employees unless otherwise designated by the Legislature.
This rule is consistent with the expression of legislative intent manifested in the plain language of Section 110.217(2), Florida Statutes, requiring employees to complete at least one year in their current position before attaining permanent status. We cannot conclude that the statutory construction of Section 110.217(2) manifested in the rule is clearly erroneous. The rule manifests a reasonable construction that an employee legislatively transferred from one agency to another has not remained in that employee's “current position” unless expressly designated in the legislation effectuating the transfer.
Delong was transferred from the DEP to the FWC on July 1, 2012, the effective date of HB 1381. Hence, irrespective of Delong's prior status at the DEP, pursuant to the rule and HB1383, Delong became a “new employee” of FWC on July 1, 2012. While the language of HB1383 expressly transferred “any accrued annual leave, sick leave, and regular and special compensatory leave balances” of transferred employees, HB 1383 does not authorize transferred employees to retain their permanent status.
Since Delong was transferred from the DEP to the FWC on July 1, 2012, Delong plainly had not successfully completed one year at his position with FWC when he was dismissed from FWC in May 2013. Hence, PERC lacks jurisdiction to hear Delong's appeal because Delong was a probationary FWC employee, not a permanent one. § 110.217(2) Fla. Stat.
It bears noting that PERC's final order dismissing Delong's appeal for lack of jurisdiction is consistent with PERC's final order in Tactuk v. FWC, 27 FCSR 206 (2012) (confirming that DEP law enforcement officers transferred to the FWC by virtue of HB1383 were placed on probationary status).
The dissent suggests that this Court should effectively nullify the subject rule, disregard Section 110.217(1), Florida Statutes, requiring DMS to promulgate uniform rules related to employment status, and essentially require state agencies to follow a court-imposed rule of statutory construction for transfer statutes, such as HB 1381. The dissent's proffered rule of statutory construction would dictate that transferred employees retain their employment status, unless otherwise directed by the transfer legislation. Indeed, DMS has since amended Rule 60L–33.003 to incorporate that very concept. However, Delong has identified no authority which would require or allow the retroactive application of DMS' amended rule to Delong's case.
Additionally, the prior iteration of the rule was in effect in 2012 when the Legislature adopted HB 1383. We must presume that the Legislature was aware of DMS' rule when it adopted HB 1383. Cf. Barnett v. Dep't of Mgmt. Servs., 931 So.2d 121, 132 (Fla. 1st DCA 2006) (“A well-recognized maxim of statutory construction is that the legislature must be presumed to be aware, at the time it enacts new legislation, of the status of the law then existing, including pertinent judicial case law.”); accord Hollar v. Int'l Bankers Ins. Co., 572 So.2d 937, 939 (Fla. 3d DCA 1990).
If we were to apply DMS' “new” rule to HB 1383, rather than the version of the rule in effect when the Legislature passed HB 1383, this Court would be grafting onto HB 1383 language regarding the probationary/permanent status of transferred employees that the Legislature itself, for whatever reasons, chose not to include in the legislation. Since the Legislature has expressly directed DMS to promulgate such policies via the rule-making process, we decline to effectively amend HB 1381 by altering the rule of construction in effect when HB 1381 became law.
The dissent argues both: (i) that this is a case requiring the determination of legislative intent, and (ii) that this court should apply to Delong's case the amended rule which is now in effect, rather than the version of rule applicable when the Legislature adopted HB 1381. When the 2012 Legislature adopted HB 1381, it knew precisely how HB 1381 would impact the employment status of transferred employees because the Legislature had the benefit of the version of the rule then in effect. It seems incongruous to suggest the intent of the 2012 Legislature was informed or influenced by a DMS administrative rule that would not be promulgated until January 2014, some two years after the 2012 Legislature's sine die.
Finally, we note the Legislature specifically included in HB 1383 language which allowed transferred employees to retain certain enumerated earned benefits such as annual leave, sick leave, and certain leave balances. Had the Legislature intended for transferred employees to also retain their employment status, one must presume that the Legislature would have similarly included such language. See Subirats v. Fid. Nat'l Prop., 106 So.3d 997, 1000 (Fla. 3d DCA 2013) (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) (“Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.”)). However, the Legislature chose not to make employees transferred by HB 1381 anything but probationary status employees.
Affirmed. ROTHENBERG, J., concurs.
LOGUE, J., (dissenting).
In 2012, the Legislature enacted a law that transferred the Division of Law Enforcement of the Department of Environmental Protection to the Fish and Wildlife Conservation Commission. When it transferred the Division, did the Legislature intend to terminate the permanent career service status of the law enforcement officers in the Division and require the officers to undergo a one-year probation during which they could be fired at will as if they were new employees? This case turns on legislative intent, pure and simple.
As a case turning on legislative intent, the crucial fact is that the text of the law transferring the Division is completely silent on the issue of career status. The language of the law simply does not address this issue. Because I am unpersuaded by the Commission's attempt to infer from the Legislature's silence an intent to deprive the officers of such an important, constitutionally-protected right, I dissent. As the current Department Rule now recognizes, when the Legislature can easily express an intent to remove an individual's existing property right by including clear language in the law, there is little justification for the Commission to insert such words into the law by inference.
FACTS AND PROCEDURAL BACKGROUND
Jordan M. Delong was a sworn law enforcement officer with the Florida Department of Environmental Protection with over four years of experience. As such, under the laws of our State, Delong was a permanent career service employee who could not be fired at will. He had the right not to be dismissed, suspended, or demoted unless the State proved before an independent hearing officer that he violated specific rules of employment.
In 2012, the Legislature enacted Chapter 2012–88 of the Laws of Florida, a law transferring the Division of Law Enforcement in which Delong served from the Department of Environmental Protection to the Florida Fish and Wildlife Conservation Commission. The law also provides that the officers' leave balances transferred with them. Chapter 2012–88 does not address whether the transfer changed the status of the officers as permanent employees.
On May 2, 2013, within one year of the transfer, the Fish and Wildlife Commission dismissed Delong for alleged violations of its rules. In the dismissal notice, the Commission informed Delong that the transfer of his unit had the effect of reducing the status of the officers in the Division, including his, from permanent employees to new employees who could be fired at will during a one-year probation. Under his new status as a probationary employee, the Commission reasoned, Delong had no right to a hearing to determine whether the Commission had actual cause for his dismissal.
Delong appealed to the Public Employees Relations Commission, which has jurisdiction to hear appeals filed by permanent status career service employees. § 110.227(5), Fla. Stat. (2013). The Public Employees Relations Commission dismissed Delong's appeal, holding that because Delong was only a probationary employee, it lacked jurisdiction over his appeal. This appeal followed.
ANALYSIS
The officers' status as permanent career service employees was a constitutionally-protected property right because they could only be disciplined or dismissed for cause. § 110.227(1); Johnson v. Beary, 665 So.2d 334, 335 (Fla. 5th DCA 1995) (“A statute which allows a demotion or dismissal only on the basis of ‘cause’ creates a constitutionally protected interest in public employment.”) (citation omitted). It was a property right the Legislature itself gave to the officers. Art. III, § 14, Fla. Const. (creating a civil service system for state employees); § 110.217(2), Fla. Stat. (2013) (granting permanent status to career service employees who complete a one year probationary period). The obvious public purpose of protecting the officers from arbitrary demotions and dismissals is to allow the officers to enforce the law without fear or favor.
Of course, the Legislature had the power to prospectively change the status of the officers within the career service system from permanent to probationary. See Dep't of Corrs. v. Fla. Nurses Ass'n, 508 So.2d 317, 320 (Fla.1987) (upholding a legislative action that terminated the permanent status of certain career service employees). Thus, the Legislature clearly had the power to take away the officers' permanent status and the rights associated with it. See State ex rel. McIver v. Swank, 152 Fla. 565, 12 So.2d 605, 609 (1943) (holding there is no protected property right in the continuation of legislatively-created employment once that employment is legislatively abolished). The issue in this case is whether the Legislature would do so, as the Commission maintains, without expressly saying it.
To answer this question we must construe Chapter 2012–88 to determine whether it reflects the Legislature's intent to deprive the officers of this right. “A court's purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (citing Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003)). “To discern legislative intent, a court must look first and foremost at the actual language used in the statute.” Id. (citation omitted). As the Florida Supreme Court repeatedly has explained:
when the language of the statute is clear and unambiguous and conveys a clear and definite meaning[,] the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.
Velez v. Miami–Dade Cnty. Police Dep't, 934 So.2d 1162, 1164–65 (Fla.2006) (internal quotations and citations omitted).
Applying these principles to Chapter 2012–88, we arrive at the first and, I believe, dispositive problem in the Commission's argument: nowhere in the language of the law does the Legislature state any express intent to remove the officers' permanent status. Whether the officers should keep their permanent status, resort to probationary employees, or permanently lose their permanent status is simply not addressed in the text.
This silence is significant. In the past, when the Legislature removed this right from a class of civil servants, it did so expressly. In fact, it took great pains to explain the reason why it was taking a step that could have such a serious impact on the lives of a class of employees. See Fla. Nurses Ass'n, 508 So.2d at 319–20. The Legislature's past practice clearly suggests the Legislature would not normally remove such a right indirectly and by inference only. Courts should be hesitant to assume the Legislature intended to deprive a person of a constitutionally-protected right unless the Legislature expressly says so in the text.
The Commission, however, contends the Legislature signaled its intent to remove the officers' right to permanent employee status when it included the following language in the law:
Notwithstanding chapter 60K–5, Florida Administrative Code, or any provision of law to the contrary, employees who are transferred from the Department of Environmental Protection and the Department of Agriculture and Consumer Services to fill positions transferred to the Fish and Wildlife Conservation Commission shall retain and transfer any accrued annual leave, sick leave, and regular and special compensatory leave balances.
Ch. 2012–88, § 5, Laws of Fla. (emphasis added). Citing to the canon of statutory construction “expressio unius est exclusio alterius”—i.e., the mention of one thing implies the exclusion of another—the Commission argues that basic statutory construction requires the court to conclude the Legislature intentionally omitted permanent status from the list of specified benefits retained by transferred employees.
While plausible, the Commission's argument is ultimately unpersuasive. In the first place, we should keep in mind this wise and useful maxim is misused when it is applied in a mechanical manner. As the First District recently recognized:
This maxim, meaning “the expression of one thing implies the exclusion of the other,” is “strictly an aid to statutory construction and not a rule of law.” Smalley Transp. Co. v. Moed's Transfer Co., 373 So.2d 55, 56 (Fla. 1st DCA 1979). The correctness of the principle as applied to a particular statute “depends entirely on context,” In re Sealed Case No. 97–3112, 181 F.3d 128, 132 (D.C.Cir.1999), including the history and structure of the legislation being examined, see In the Matter of Am. Reserve Corp., 840 F.2d 487, 492 (7th Cir.1988). Its use must be governed by common sense, such that it should not be applied to defeat the “natural and obvious sense” of a statute's provisions. The Federalist No. 83, at 495–96 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Crews v. Fla. Pub. Emp'rs Council 79, AFSCME, 113 So.3d 1063, 1071–72 (Fla. 1st DCA 2013). The maxim has been properly called “a valuable servant, but a dangerous master.” Id. (citation omitted).
Indeed, the maxim “properly applies only when the court can determine that the matters expressly mentioned are intended to be exclusive.” Id. (declining to apply the maxim when context did not indicate that matters expressly mentioned were intended to be exclusive). In the present case, there is nothing in the language, structure, or legislative history of Chapter 2012–88 indicating that the transfer of the officers' leave was intended to be exclusive.
In this regard, there is a perfectly reasonable explanation for the language used by the Legislature that has nothing to do with the Legislature's supposed intent to make the transfer of leave balances exclusive of the officers' career status. When a State employee transfers from one agency to another, a complex set of rules governs what happens to the employee's leave balances. Some types of leave balances transfer; some must be paid upon transfer by the agency losing the employee; some must be paid upon transfer by the receiving agency; some are forfeited; and some are dependent upon whether the receiving agency's pay plan accepts the leave balances as to whether they are transferred or forfeited. Fla. Admin. Code R. 60L–34.0031–34.0044 (2014). These issues not only impact the employee, but also impact the budgets of the agency losing and the agency gaining the employees.
The transfer made the resolution of these issues pressing and urgent. The language relied upon by the Commission resolved these specific personnel and budgetary issues created by the transfer. It goes beyond the normal and ordinary meaning of these words to discover in them an unspoken legislative intent to accomplish the larger and more controversial legislative goal of terminating the officers' constitutionally-protected right to career status.
The Commission's interpretation can be reached only by inserting words, phrases, and ideas into the text where the Legislature itself did not do so. This court is simply “not at liberty to add words to the statute that were not placed there by the Legislature.” Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 512 (Fla.2008) (citation omitted). Rather than read language and ideas into the law that do not exist, the better approach is simply to assume the Legislature meant exactly what it said and no more.
This result is not changed by Rule 60L–33.003(2)(d) of the Florida Administrative Code, which was repealed while this appeal was pending. If anything, the fact that this Rule was replaced with the opposite rule completely undermines the Commission's position.
At the time this matter was reviewed by the Public Employees Relations Commission, Florida's Department of Management Services had in place a rule that provided that an employee transferred by the Legislature automatically lost permanent status and reverted to probationary status unless the Legislature said otherwise. The Rule provided:
The Department is charged with promulgating uniform administrative rules regarding the status of state employees for use by state agencies. § 110.217(1), Fla. Stat. (2013).
(d) Probationary or Permanent Status—An employee shall be given probationary status or permanent status in accordance with the following:
1. Upon original appointment, promotion or demotion to a different broadband level, or any time an employee moves between agencies, an employee shall be given probationary status unless a demotion is to a position in which the employee has previously held permanent status in the agency or unless the legislature has designated that an employee shall be moved but shall not have status as a new employee.
Fla. Admin. Code R. 60L–33.003(2)(d) (2013), amended byFla. Admin. Code R. 60L–33.003 (2014) (emphasis added).
This Rule purports to elevate a court-created aide to statutory construction into an automatic and mechanical rule of law: it leaves no room to consider the actual language, structure, or legislative history of the law to which it will be applied. Moreover, it applies not only to laws that existed at the time it was promulgated but also to future laws. In both ways, the Rule roams far afield from the proper use of an agency's power to promulgate regulations. An agency may have special insights into interpreting specific laws, but it has no special expertise regarding court-created rules of statutory construction and no special expertise regarding laws enacted in the future. A rule interpreting the intent of the Legislature regarding future laws that have not yet been written, filed, or enacted appears to be a pure legislative act, something which an agency cannot do.
The second flaw is just as serious. The Department that promulgated this Rule has entirely abandoned it. While this appeal was pending, the Department reversed itself, executed a perfect 180–degree turn, and adopted the opposite principle as a binding rule of law. Fla. Admin Code R. 60L–33.003(5) (2014). The Department replaced this Rule with new language which provides that an employee retains his or her status in the career service system upon a legislatively-mandated transfer unless the legislation specifically states that the employee shall not retain their status. The new Rule states: “[i]n the case of a legislatively-mandated transfer, an employee retains the status held in the position prior to the time of transfer unless the legislature directs otherwise.” Id.
In terms of the power to promulgate regulations, this new version suffers the same deficiencies as the first. Nevertheless, to the extent the Division's regulations are viewed as authoritative, this Court must be guided by the new regulation.
After all, one of the cardinal rules governing our work as an appellate court is to apply the law in existence when the appeal is decided. Nash v. Gen. Motors Corp., 734 So.2d 437, 440 (Fla. 3d DCA 1999) (recognizing that “[d]ecisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since the time of trial” (quoting Lowe v. Price, 437 So.2d 142, 144 (Fla.1983))).
Applying the current rule, we would have to hold that Delong retained his status as a career service employee as a result of the legislatively-mandated transfer because the Legislature did not specifically direct otherwise.
CONCLUSION
As the current Department Rule now recognizes, when the Legislature can easily express an intent to remove an individual's existing property right by including clear language in the law, there is little justification for the Commission to insert such words into the law by inference. I would hold that Officer Delong did not lose his career status as a result of the transfer of his Division from one department to another, and that the Public Employees Relations Commission accordingly has jurisdiction to hear Officer Delong's appeal of his dismissal.