DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Gary SCHLUTER and The Florida Association of State Troopers, Inc., Appellees, 705 So. 2d 81

ERVIN, Judge. The Department of Highway Safety and Motor Vehicles (Department) appeals a final order of the administrative law judge (ALJ) determining that each of six policies, which the Florida Highway Patrol follows in investigating allegations of employee misconduct, constitutes a rule that was never adopted in compliance with

section 120.54, Florida Statutes (Supp.1996). The Department asserts that the ALJ erred in determining that its six challenged policies constituted rules, as defined in

section 120.52(15)(a), Florida Statutes (Supp.1996). We reverse as to the first three of the Department’s policy statements, but affirm as to the remaining three.

The prehearing stipulation described five of the challenged policies in the following language: [1.] The Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station, and permitting them to leave their residences during duty hours only with the permission of their superiors. [2.] The Respondent has a policy of ordering law enforcement officers under investigation, in certain circumstances, to have no contact with any person who may be a witness in the course of the investigation. ' [3.] The Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. [4.] The Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. [5.] The Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation.

In addition, the ALJ found as a matter of fact in respect to the sixth (and only other) policy involved: [6.] Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question.

Section 120.52(15)(a), provides: “Rule” means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include: (

a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum. From a plain reading of the above statute, it appears that the analysis as to whether an agency’s policy statement complies with the definition of a rule requires first a determination regarding whether the policy can be said to be one of general applicability, and, if so, whether the internal memorandum exception applies.

We agree with appellant that the first three of the six policies do not constitute rules. They cannot be considered statements of general applicability because the record establishes that each was to apply only under “certain circumstances.” Consequently, as in Department of Highway Safety & Motor Vehicles v. Florida Police Benevolent Ass’n, 400 So.2d 1302 (Fla. 1st DCA 1981), these statements should be considered effective merely as guidelines, in that their application was subject to the discretion of the employee’s supervisor.

The Department’s first three declarations cannot be said to have been “intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” McDonald v. Department of Banking & Fin., 346 So.2d 569, 581 (Fla. 1st DCA 1977) (emphasis added). We therefore reverse the ALJ’s determination that they constituted rules under

section 120.52(15). The final three policies, however, do apply uniformly to all law enforcement officers employed by the Department without exception. On their face, they comply with

section 120.52(15)’s definition of a rule as agency statements of general applicability that prescribe the Department’s procedure or practice requirements, pertaining to officers under investigation. Virtually the only evidence the ALJ had before him regarding this issue was the parties’ stipulation pertaining to law enforcement officers under investigation.

Given the form of such evidence, we conclude that the ALJ must be considered to have competent, substantial evidence from which he could lawfully find, as to the final three stipulated statements, that the Department had an established policy that had been systematically communicated to the agency personnel with the intention that it be implemented with the force of law.

Indeed, such a conclusion is manifest in the language particularly contained in policy number 5, disclosing that the Department “has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation.” (Emphasis added.) The word “policy,” used in -each of the three statements, is not a term of art. It has a commonly understood meaning. It is defined by one source as “a principle, plan, or course of action, as pursued by a government, organization, individual, etc.” Webster’s New World Dictionary 1102 (2d college ed.1980).

We therefore affirm the ALJ’s order as to his determination that the final three policies constituted invalid, nonadopted rules. The only remaining question is whether these three policy statements can be said to be subject to the internal memoranda exception to the statutory definition of a rule. They are not.

The internal management memorandum exception, as statutorily defined, cannot apply if the private interests of any person are affected by the policy. ■ In this case, the private interests of each officer placed under investigation are affected, because the policies restrict the means by which the employee can defend himself or herself against disciplinary charges which, if established, could lead to separation or dismissal from employment, thereby affecting the officer’s property right to continued employment.

Pursuant to the Police Officer’s Bill of Rights, codified at sections 112.531 through 112.535, Florida Statutes (1995), highway patrol officers have a property interest in continued employment. See Grice v. City of Kissimmee, 697 So.2d 186 (Fla. 5th DCA 1997). Such property interest is also created by

section 321.06, Florida Statutes (1995), which provides that highway patrol officers may only be disciplined for cause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494 (1985) (Ohio statute providing that civil service employees are entitled to retain their positions unless they commit acts of misfeasance, malfeasance, or nonfeasance, plainly creates a property interest in continued employment). Once the legislature has conferred a property interest in public employment, such interest may not be deprived without appropriate due process procedures.

Id. at 541, 105 S.Ct. at 1492-93. The Court in Loudermill expressly characterized an employee’s property interest in retaining employment as a “private interest.” Id. at 542-43, 105 S.Ct. at 1493-94. Accordingly, the policies that the .agency has established, which either protect or impair employees’ procedural safeguards in proceedings which could potentially deprive an employee of his or her continued employment, also necessarily affect the employee’s private interests. Therefore, these policies do not fit within the internal management memorandum exception.

The dissent’s primary focus, as to the last three of the disputed procedures, appears to be that because none of the statements had been reduced to writing before the stipulation was entered, they could not be considered to comply with

section 120.52(15)’s definition of rule. In espousing this position, Judge Benton has failed to cite any authoritative legislative or judicial source for his novel contention. Indeed, his reference to Straughn v. O’Riordan, 338 So.2d 832, 834 n. 3 (Fla.1976), which appears in footnote 5 of the concurring and dissenting opinion, supports an opposite conclusion. Nothing in Straughn reveals that the court’s decision was influenced by the existence of written standards. In fact, the quotes from Straughn regarding “ ‘unwritten rules’ ” and “invisible policy-making” strongly suggest the contrary.

Even if it were possible to interpret Straughn as implying that the standards there attacked had been reduced to writing, any decision which requires a writing as a necessary ingredient of an unpublished rule is, in our judgment, clearly at variance with the legislative purpose behind the adoption of the 1974 Administrative Procedure Act. Justice England, the author of the Straughn opinion, was the reporter to the 1974 legislature and, in such capacity, furnished it with invaluable assistance in drafting the Act. See 3 Arthur J. England, Jr. & L.

Harold Levinson, Florida Administrative Practice Manual, “Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, March 9, 1974” (1995-97) (hereinafter “Reporter’s Comments”). Both the Florida Supreme Court and this court have frequently cited Justice England’s comments as a primary source of the legislative intent behind the Act’s creation. See, e.g., Florida Home Builders Ass’n v. Department of Labor & Employment Sec., 412 So.2d 351, 353 n. 2 (Fla.1982); Florida Real Estate Comm’n v. Webb, 367 So.2d 201, 203 n. 4 (Fla.1978); Lewis v. Judges of Dist.

Ct. of App., First Dist., 322 So.2d 16, 19 n. 6 (Fla.1975); Friends of the Hatchineha, Inc. v. State, Department of Envtl. Reg., 580 So.2d 267, 271 (Fla. 1st DCA 1991); Alterman Trans. Lines, Inc. v. Department of Transp., 519 So.2d 1005, 1007 (Fla. 1st DCA 1987); McDonald v. Department of Banking & Fin., 346 So.2d 569, 582 n. 9 (Fla. 1st DCA 1977). In his prefatory comments relating to the six principal goals leading to the adoption of the 1974 Administrative Procedure Act, the reporter listed two which are highly pertinent to the appeal now before us.

The Act was devised in an effort “to remedy massive definitional, procedural and substantive deficiencies in existing law (

i) by prescribing due process minima for the operation of Florida administrative agencies ... [and] (

v) by broadening public access to the precedents and activities of agencies.” Reporter’s Comments, at 3. Obviously, an

interpretation of the 1974 Act which fails to require an agency to comply with rulemaking simply because its policy statements were unwritten could not be said to have complied either with the declared legislative purpose of prescribing due process minima or of broadening public access to the precedents of the particular agency. In regard to the public notice objective, the reporter made the following pertinent comments: The present act falls far short of providing due process minima in connection with the actions of state agencies.

Practices have been developed by several agencies which provide even less fairness than the act would seem to require. The notions of basic fairness which should surround all governmental activity, such as the opportunity for adequate and full notice of agency activities, the right to present viewpoints and to challenge the view of others, the right to develop a record which is capable of court review, the right to locate precedent and have it applied, and the right to know the factual bases and policy reasons for agency action, are neither ■ uniformly nor universally applied in Florida.

Reporter’s Comments, at 5 (footnote omitted). ; Judge Benton also refers to Department of Corrections v. McCain Sales of Florida, Inc., 400 So.2d 1301 (Fla. 1st DCA 1981), as authority for his position that the statements at issue should be in writing in order to be rules. We have found no language in McCain stating that an agency’s policy, which otherwise complies with

section 120.52(15)’s definition of rule, cannot be considered a rule simply because the policy was not reduced to writing. In fact, it appears to us that the McCain decision was largely motivated by the court’s expressed preference for adjudicative processes over rulemak-ing.

In reversing the hearing officer’s order invalidating as an illicit rule the Department of Correction’s program for the manufacture of metal signs, the court concluded with the following admonitory comment: Now more than ever it is appropriate to allow these incentives for rulemaking to work in other proceedings rather than to subject marginal cases to the difficult semantic debate that our early decisions encouraged in rule-challenge proceedings against nonrule policy. Id. at 1302.

The court’s partiality in such regard was underscored in another case decided the same day, Department of Highway Safety & Motor Vehicles v. Florida Police Benevolent Ass’n, 400 So.2d 1302, 1303-04 (Fla. 1st DCA 1981), wherein it observed: “In marginal rule challenges such as this ... the public interest is now better served by permitting other incentives for rulemaking to operate in

Section 120.57 proceedings.” No doubt these two cases and other cases decided during the same general period can perhaps be best understood as an outgrowth of what we had earlier declared in McDonald v. Department of Banking & Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977), encouraging resort to the adjudication procedures available to substantially affected parties under

section 120.57, Florida Statutes, rather than rule challenges to incipient agency action. As McDonald had explained: “The folly of imposing rulemaking procedures on all statements of incipient policy is evident[,]” because to do so will hardly encourage agencies to. “structure their discretion progressively by vague standards, then definite standards, then broad principles, then rules.” Id. at 580.

The judicial preference for adjudication over rulemaking became so. pronounced that at one point this court declared:- The time has long since passed (if ever it existed) that agency action was mechanically invalidated simply because no rule was in effect. Certain opinions from this court during our early experience with Florida’s 1974 Administrative Procedure Act may have so indicated. Our academic endeavors in attempting to label the action either rule or nonrule to determine whether or not it fell within

section 120.52(14)’s [now renumbered as 120.52(15) ] definition of a rule have now been largely discarded. Barker v. Board of Med. Examiners, 428 So.2d 720, 722 (Fla. 1st DCA 1983). The judicial gloss which this court placed on

chapter 120, Florida Statutes, has, however, since been legislatively discarded. As is reflected in the concurring and dissenting opinion, the 1991 legislature expressed, in no uncertain terms, its selection of rulemaking over adjudication as the primary means of policy development. By enacting

section 120.585, Florida Statutes, the legislature clearly disapproved the judiciary’s

interpretation of the Act, which had indicated that rulemaking was primarily a matter of agency discretion. This statute required each agency statement that met the definition of rule to be adopted as such as soon as feasible and practicable. As a result of these recent legislative amendments, it clearly appears that it was the legislature’s intention to remove from agencies the discretion to decide whether or not to adopt rules. Under the circumstances, we find no support for Judge Benton’s argument that an agency’s policy statement must be in writing before it can be considered a nonadopted rule.

AFFIRMED in part, REVERSED in part, and REMANDED. DAVIS, J., concurs. BENTON, J., concurs and dissents with opinion. . . The few cases in Florida applying the internal management exception have done so on different grounds from those appellant advocates. For example, this court held that guidelines of the Department of Highway Safety and Motor Vehicles, which prescribed standards of physical fitness for highway patrol officers, were exempt from the strictures of rulemaking because they were not self-executing, in that they were subject to the discretion of the1 supervising officer.

See Department of Highway Safety & Motor Vehicles v. Florida Police Benevolent Ass’n, 400 So.2d 1302 (Fla. 1st DCA 1981). In reaching its decision, the court stated that it believed the internal management memoranda exception applied because it failed to perceive how the patrolmen's private interests were affected by the agency’s issuance of the guidelines. Obviously, the court's discussion of the exception was immaterial to its decision in that the court had already decided that the agency's policy statements never met the initial statutory definition of rule. .

Judge Benton’s opinion refers to Straughn, 338 So.2d at 833, n. 2, where it is stated that the standards under challenge had been communicated to the agency's area supervisors via telephone, memoranda and seminar discussions, thereby suggesting a distinction between the facts in Straughn and those at bar, where the Department's policies had been conveyed entirely by oral means. . These legislative changes were no doubt the result of the popular perception that the agencies had frequently abandoned rulemaking in favor of informal policy making.

As one highly respected commentator in the field observed: Before long, however, the limited McDonald exception swallowed the rule. Instead of inquiring into the extent of an agency’s knowledge and experience with its nonrule policy to determine whether the nonrule policy was truly incipient and emerging, the courts allowed the agencies themselves to decide whether and when they were ready to proceed to rulemak-ing.

Because the courts were not inclined to police the exercise of agency discretion in this area and the agencies were not interested in losing their discretion, legislative action was necessary to restore some balance between adjudication and rulemaking in the process of policy development. Patricia A. Dore, Florida Limits Policy Development Through Administrative' Adjudication and Requires Indexing and Availability of Agency Or ders, 19 Fla. St. U.L.Rev. 437-38 (1991) (footnote omitted). .

Section 120.535 has since been deleted, but the pertinent language therein restricting agencies from establishing policy outside the confines of rulemaking has been transferred to

section 120.54(1)(a), Florida Statutes (Supp.1996).