13-002373RX United Faculty Of Florida vs. Florida State Board Of Education Status: Closed DOAH Final Order on Monday, December 23, 2013.

Summary: Petitioner has failed to show that rule 6A-14.0411 constitutes an invalid exercise of delegated legislative authority within the meaning of section 120.52(8)(b),(c), and (d), as alleged and the rule challenge cannot be sustained.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNITED FACULTY OF FLORIDA,

Petitioner,

vs. Case No. 13 - 2373RX

FLORIDA STATE BOARD OF

EDUCATION,

Respondent.

/

FINAL ORDER

Pursuant to notice, an oral argum ent on pending legal

issues was held in this case on September 11 , 2013 , before

June C. McKinney , a duly - designated Administrative Law Judge of

the Division of Administrative Hearings, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Anthony D. D emma, Esquire

Thomas W. Brooks, Esquire

Meyers, Brooks, Demma, and Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

For Respondent: Mathew Carso n , Esquire

David L. Jordan, Esquire

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee , Florida 33 399

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 6A - 14.0411

(Ð challenged ruleÑ) is an Ðinvalid exercise of delegated

legislative authorityÑ for the reasons alleg ed in the Amended

P etition to Invalidate Rule (ÐAmended PetitionÑ) filed by

Petitioner.

PRELIMINARY STATEMENT

On June 20 , 2013 , United Faculty of Florida (ÐPetitionerÑ

or ÐUFFÑ ) filed with Division of Administrative Hearings

(ÐDOAHÑ ) a P etition to Invalid ate Rule (ÐPetitionÑ) seeking the

entry of a final order determining that Florida Administrative

Code Rule 6A - 14.0411, a rule provision of the Flo rida State

Board of Education (ÐState Board " or "Respondent") , is an

invalid exercise of delegated legislative authority within th e

meaning of section 120.52(8)(b ) , (c) , and/or (d) , Florida

Statutes .

On July 1, 2013, the undersigned scheduled a hearing on the

Petition for August 21, 2013 . O n that same date , the

undersigned granted the Motion for Leave to Amend Pe tition and

issued an Order of Pre - hearing Instructions, which directed the

parties to, among other things, file a prehearing stipulation.

On July 23, 2013, the undersigned amended the notice of

hearing and rescheduled the hearing for August 20, 2013.

On A ugust 14, 2013, the parties filed their Prehearing

Stipulation and a Joint Motion to Cancel Hearing and Set Post -

hearing Submittal Schedule (ÐMotionÑ) .

On August 16, 2013, the undersigned con ducted a hearing on

the M otion, at which counsel for both partie s appeared by

telephone . During the hearing , the parties agreed that an

evidentiary hearing would not be necessary because the grounds

upon which Petitioner bases the contention that r ule 6A - 14.0411

is invalid do not raise any disputed issues of material fact but

rather present questions of law . The parties presented

differing positions concerning an appropriate briefing schedule .

Concurring with the partyÓs assessment, the undersigned directed

that, in lieu of an evidentiary hearing, the parties would

p resent their respective oral argument, which would serve as the

final hearing, and file proposed final orders.

Then, pursuant to notice, an oral argumen t was held on

September 11, 2013 . Joint Exhibits 1 through 9 were offered and

received into evidence.

At the conclusion of hearing, the undersigned announced, on

the record, the following extended deadline , to which the

parties had stipulated : proposed final orders to be filed no

later than October 21, 2013 .

The hearing was recorded but was not transcrib ed.

Petitioner and the State Board both timely filed their

Proposed Final Orders on October 21, 2013 . The undersigned has

considered both partiesÓ Proposed Final Orders , as well as the

arguments presented at hearing in the preparation of this Final

Order .

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2012 Florida Statutes.

FINDINGS OF FACT

Th e Parties agreed to the following findings of facts in

the Prehearing Stipulation :

1. Petitioner , United Faculty of Florida , is s tructurally

a voluntary, unincorporated association . The UFF is the

registered employee organization under section 447.305, and is

the certified collective bargaining agent under section 447.307,

for several bargaining units of public employees employed b y the

college district boards of trustees regulated by the challenged

rule . UFF is legally obligated to represent the members of

these bargaining units with respect to the determination of

their wages, hours , and terms and conditions of employment

pursuan t to section 447.309(1).

2. The State Board is the chief implementing and

coordinating body of public education in Florida, and is

required to focus on high - level policy decisions . The State

Board has the authority to adopt rules to implement the

provisi ons of law conferring duties upon it for the improvement

of the state system to the extent compliant with the rulemaking

authority standards set forth in the F lorida Administrative

Procedure Act.

3. The Florida College System comprises the Florida

College institutions, which ar e each governed by a local Board

of Trustees. Each Board of Trustees is responsible for c ost -

effective policy decisions appropriate to the Florida College

System institutionÓs mission, and the implementation of high -

quality educatio n programs within law and the rules of the State

Board . Each Board of Trustees may adopt rules to supplement

those prescribed by the State Board, and is specifically

authorized to adopt rules and policies related to governance,

personnel, conditions of em ployment, recruitment and selection,

standards for performance and conduct, evaluation, promotion,

assignment, demotion , and transfer, subject to the rulemaking

authority standards set forth in the F lorida Administrative

Procedure Act.

4. A Ðcontinuing co ntractÑ i s a contract between a Florida

c ollege and a member of the collegeÓs faculty which entitles the

faculty member to continue in his or her respective full - time

faculty position at the college without the necessity for annual

nomination or reappointm ent . A faculty member who does not have

a continuing contract has no assurance that he or she will be

employed by the college in the next academic year . A continuing

contract is similar to tenure, and is viewed by some as a form

of tenure.

5. A predeces sor of the continuing contract rule has

existed since at least 1979 . The 1979 edition of the rule was

amended in 2004; and the 2004 edition was not changed until

April 23, 2013.

6. There were no changes to Florida Statutes enacted since

the adoption of t he 2004 edition of the rule which mandate d an

increase from three to five years of satisfactory service for

college instructors to qu alify for a continuing contract ;

mandate that colleges develop criteria to measure studentsÓ

success; mandate the creation of full - time college faculty

positions that are not eligible for continuing - contract status;

or mention the creation of full - time college faculty positions

that are not eligible for continuing cont r act status.

7. On April 27, 2012, the State Board publish ed a Notice

of Development of Rulemaking for the Rule, which scheduled a

rule development workshop for June 5, 2012 . The Notice stated

that, Ð[t] he purpose of this rule development is to review the

current process of issuing contracts to determine necessa ry

changes . The effect will be a rule aligned with Florida

Statutes.Ñ

8. On August 17, 2012, the State Board published a second

Notice of Development of Rulemaking for the Rule . The second

Notice stated, Ð[t] he purpose and effect of the rule change is

to update the current process of issuing continuing contracts .

The effect will be a rule aligned with Florida Statutes. Ñ The

Notice scheduled a rule - development workshop for August 31,

2012, but that workshop was cancelled.

9. On November 13, 2012, the State Board published a third

Notice of Development of Rulemaking, which included proposed

language to amend the Rule . The third Notice stated : Ð [t] he

purpose and effect of the rule change is to update the current

process of issuing continuing contracts . The effect will be a

rule aligned with Florida Statutes. Ñ The State board held a

rule - development workshop on November 29, 2012, at Seminole

State College of Florida.

10. On February 21, 2013, the State Board published a

Notice of Proposed Rule to amen d the Rule . The ÐPurpose and

effectÑ section of Notice stated:

The purpose of the rule development is to

revise the current process and criteria for

issuing continuing contracts . In addition,

criteria for post - award performance reviews

are added, and gro unds for termination of

continuing contracts are revised to include

failure to meet the post - award performance

criteria . The effect will be a rule aligned

with Florida Statutes.

11. The 2004 version of the rule did not have to be

changed in 2013 in orde r to be aligned with any particular

statute(s) .

12. The State Board held a rule ad option hearing on

March 19, 2013, in Tallahassee, Florida . At the March 19, 2013,

State Board meeting, the State Board unanimously adopted the

proposed amendments to the Ru le . The amended version of the

rule beca me effective on April 23, 2013.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto pursuant to s ection 120.56 (3 ) , Florida

Statutes (2013) .

14. Section 120.56(1)(a) provides that Ð any person

substantially affected by a rule may seek an administrative

determination of its i nvalidity.Ñ

15. The parties stipulated that Petitioner is

substantially affected by rule 6A - 14.0 411 and has associational

standing to challenge the rule in this matter.

16. The challenged rule became effective before the

Petition was filed . Hence, this proceeding is a challenge to an

existing rule . In a challenge to an existing rule, the

Ðpetitio ner has [the] burden of proving by a preponderance of

the evidence that the existing rule is an invalid exercise of

delegated legislative authority as to the objections raised.Ñ

See § 120.56(3)(a), Fla. Stat. An administrative law judge is

without authori ty to declare an existing rule invalid on any

other basis. 1 /

17. Rule 6A - 14.0411 states :

6A - 14.0411 Employment Contracts for Full -

Time Faculty.

(1) Each District Board of Trustees shall

develop, maintain and distribute a policy

governing the issuance of continuing

contracts and other employment contracts for

employees serving in a full - time faculty

capacity as determined by the college . Such

policy shall be consistent with this rule .

( 2 ) In order to be eligible for a

continuing contract, full - time facul ty shall

meet the following minimum requirements:

(a) Complete at least five (5 ) years of

satisfactory service , based on the criteria

set forth in subsection (3) below, in the

same college , except as provided below,

during a period not in excess of seven (7 )

years . In all cases, such service shall be

continuous except for leave duly authorized

and granted . The policy established by the

district board of trustees may also consider

satisfactory service in other institutions

of higher learning for purposes o f this

section.

(b) Receive the recommendation of the

president and approval by the board for a

continuing contract based on successful

performance of duties , demonstration of

professional competence pursuant to policy

adopted by the board in accordance w ith

subsection (3) of this rule and the needs of

the college .

(3) Each board of trustees, after

receiving a recommendation from the

president and ensuring that input has been

received from the faculty, shall establish

criteria which must be met by a full - time

faculty member before a continuing contract

may be awarded.

(a) Such criteria, shall include:

1. Quantifiable measured effectiveness in

the performance of faculty duties;

2. Continuing professional development;

3. Currency and scope of subject ma tter

knowledge;

4. Relevant feedback from students,

faculty and employers of students;

5. Service to the department, college,

and community; and,

6. Criteria determined by the board under

subsection (8) of this rule.

(b) Such criteria may include:

1. Educational qualifications,

efficiency, compatability, student learning

outcomes , character ;

2. Capacity to meet the educational needs

of the community ;

3. The length of time the duties and

responsibility of this position are expected

to be needed ; and

4. Such other criteria as shall be

included by the board.

(4) Each board may establish full - time

faculty positions that are not eligible for

continuing contract . Faculty hired in these

positions may be awarded multiple year

contracts, annual contracts, or contracts of

less than one (1) year. Notwithstanding any

provision in Rule 6A - 14.041, F.A.C., no

multiple year contracts may exceed three (3)

years. Each board shall adopt policies

addressing such positions and contracts.

(5 ) Each employee issued a co ntinuing

contract shall be entitled to continue in

his or her respective full - time faculty

position at the college without the

necessity for annual nomination or

reappointment until the individual resigns

from employment, except as provided in

subsection ( 7) of this rule.

( 6) In order to contribute to the

continual growth and development of faculty,

each board shall adopt policy requiring

periodic post - award performance reviews for

faculty under continuing contract. Periodic

reviews of continuing contract faculty shall

use the criteria under subsection (3) of

this rule.

(7 )(a) Each district board of trustees

may , upon recommendation of the president,

terminate a full - time faculty employee under

continuing contract , or return the employee

to an annual contr act , for failure to meet

post - award performance criteria, or, for

cause in accordance with college policies

and procedures upon recommendation by the

president and approval by the board . The

president or designee shall notify the full -

time faculty employe e in writing of the

recommendation and shall afford the full -

time faculty employee the right to formally

challenge the action in accordance with the

policies and procedures of the college . As

an alternative to the hearing rights

provided by college police s and procedures,

the employee may request an administrative

hearing in accordance with Chapter 120,

F.S., by filing a petition with the board

within twenty - one (21) days of receipt of

the recommendation of the president.

(b) Upon recommendation of the pr esident,

the board may terminate a full - time faculty

employee under continuing contract upon

consolidation, reduction, or elimination of

an institutionÓs program , or restriction of

the required duties of a position by the

board . The board shall determine on the

basis of the criteria set forth in

subsections ( 2 ) and ( 3 ) of this rule, which

full - time faculty employees to retain on a

continuing contract and which shall be

dismissed or returned to an annual contract .

The decision of the board shall not be

con trolled by any previous contractual

relationship . In the evaluation of these

factors, the decision of the board shall be

final.

(8) In addition, each district board of

trustees, after receiving a recommendation

from the president and ensuring that input

has been received from the faculty, shall

develop appropriate criteria to measure

student success, which may include the

following factors, as appropriate:

(a) Demonstrated or documented learning

gains;

(b) Course completion rates;

(c) Graduation and/or certification

rates;

(d) Continued success in subsequent and

additional courses or educational pursuits;

(e) Job placements in the appropriate

field; and,

(f) Other criteria as may be included in

the policy approved by the board.

Such criteria shall be used, as appropriate,

for the particular field of learning and the

individual faculty member, as consideration

in determining whether to grant a continuing

contract pursuant to subsection (3) above .

Such factors shall also be used, as relevant

and appr opriate to individual faculty

members, in the review set forth in

subsection (6) above.

(9) Any full - time faculty employee

holding a continuing contract who accepts an

offer of annual employment in a capacity

other than that in which the continuing

contra ct was awarded may be granted an

administrative leave of absence pursuant to

the collegeÓs administrative rules.

(10) In order to provide for a transition

period for full - time faculty in the process

of being considered for continuing

contracts, each board may provide an

exemption from the time requirements set

forth in paragraph (2)(a) of this rule for

full - time faculty being considered for an

award of a continuing contract during the

2012 - 13, 2013 - 14 and the 2014 - 15 fiscal

years . In addition, each board may provide

credit for prior satisfactory years of

service for purposes of determining

eligibility for a continuing contract . In

order to provide adequate time for boards of

trustees to develop the criteria described

in this Rule, the criteria set forth i n

subsections (3) and (6) of this rule shall

apply beginning in the 2013 - 14 fiscal year.

18. The starting point for determining whether an existing

rule is invalid is section 120.52(8) , in which the legislature

defined the term Ðinvalid exercise of deleg ated legislative

authority. Ñ Pertinent to this case are the following provisions

Petitioner alleg es were deficiencies in the Amended Petition :

A proposed or existing rule is an invalid

exercise of delegated legislative authority

of any one of the followin g applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54 (3)(a)1. ;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

§ 120.52(8), Fla. Stat.

19. Petitioner voluntarily dismissed the challenge to

120.52(8 ) ( e) in the Prehearing Stipulation , section F ,

paragraph 5.

20. As used in section 120.52(8), the term Ðrulemaking

authority means statutory language that explicitly authorizes or

requires an agency to adopt, develop, establish, or otherwise

create any statement coming within the definition of the term

Òrule.Ó Ñ § 120.52(17), Fla. Stat . The term Ðlaw implementedÑ

is defined to mean Ðthe language of the enabling statute being

carried out or interpreted by an agency through rulemaking. Ñ

§ 120.52(9), Fla. Stat.

21. Also included in section 1 20.52(8), is the modern

Administrative Procedure Act (ÐAPAÑ) concluding paragraph

commonly called the Ðflush - left paragraphÑ - - in which the

legislature expressed a clear intent to restrict agency

rulemaking authority:

A grant of rulemaking authority is ne cessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required . An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute . No agency shall h ave

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agency have the authority to implement

sta tutory provisions setting forth general

legislative intent or policy . Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

The legislature enacte d the very same restrictions on

rulemaking authority in section 120.536(1).

22. Rule 6A - 14.0411 identifies as specific authority

sections 1001.02(1 ) , ( 6) , 1012.83 , and 1012.855.

23. Section 1001.02 states:

1001.02 General powers of State Board of

Education. Ï

(1 ) The State Board of Education is the

chief implementing and coordinating body of

public education in Florida except for the

State University System, and it shall focus

on high - level policy decisions . It h as

authority to adopt rules pursuant to ss.

120.536 (1) and 120.54 to implement the

provisions of law conferring duties upon it

for the improvement of the state system of

K - 20 public education except for the State

University System. Except as otherwise

pro vided herein, it may, as it finds

appropriate, delegate its general powers to

the Commissioner of Education or the

directors of the divisions of the

department.

* * *

(6) The State Board of Education shall

prescribe minimum standards, definitions,

and guidelines for Florida College System

institutions that will ensure the quality of

education, coordination among the Florida

College System institutions and state

universiti es, and efficient progress toward

accomplishing the Florida College System

institution mission . At a minimum, these

rules must address:

(a) Personnel.

(b) Contracting.

(c ) Program offerings and classification,

including college - level communication and

computation skills associated with

successful performance in college and with

tests and other assessment procedures that

measure student achievement of those skills .

The performance measures must provide that

students moving from one level of education

t o the next acquire the necessary

competencies for that level.

(d ) Provisions for curriculum development,

graduation requirements, college calendars,

and program service areas . These provisions

must include rules that:

1. Provide for the award of an associate in

arts degree to a student who successfully

completes 60 s emester credit hours at the

Florida College System institution.

2. Require all of the credits accepted for

the associate in arts degree to be in the

statewide course numbering system as credits

toward a baccalaureate degree offered by a

state university o r a Florida College System

institution.

3. Beginning with students initially

entering a Florida College System

institution in 2014 - 2015 and thereafter,

require no more than 30 semester credit

hours in general education courses in the

subject areas of comm unication, mathematics,

social sciences, humanities, and natural

sciences.

The rules should encourage Florida College

System institutions to enter into agreements

with state universities that allow Florida

College System institution students to

complete up per - division - level courses at a

Florida College System institution . An

agreement may provide for concurrent

enrollment at the Florida College System

institution and the state university and may

authorize the Florida College System

institution to offer an upper - division - level

course or distance learning.

(e ) Student admissions, conduct and

discipline, nonclassroom activities, and

fees.

(f ) Budgeting.

(g ) Business and financial matters.

(h ) Student services.

(i ) Reports, surveys, and information

systems , including forms and dates of

submission.

Section 1012.83 states:

1012.83 Contracts with administrative and

instructional staff. Ï

(1 ) Each person employed in an

administrative or instructional capacity in

a Florida College System institution shall

be entitled to a contract as provided by

rules of the State Board of Education.

(2) Each contract or employment agreement,

or renewal or renegotiation of an existing

contract or employment agreement, containing

a provision for severance pay with an

officer, agent, employee, or contractor must

include the provisions required in s.

215.425 .

Section 1012.855 states:

1012.855 Employment of Florida College

System institution personnel; discrimination

in granting salary prohibited. Ï

(1)(a) Employment of all pers onnel in each

Florida College System institution shall be

upon recommendation of the president,

subject to rejection for cause by the

Florida College System institution board of

trustees; to the rules of the State Board of

Education relative to certificati on, tenure,

leaves of absence of all types, including

sabbaticals, remuneration, and such other

conditions of employment as the State Board

of Education deems necessary and proper; and

to policies of the Florida College System

institution board of trustees not

inconsistent with law.

(b ) Any internal auditor employed by a

Florida College System institution shall be

hired by the Florida College System

institution board of trustees and shall

report directly to the board.

(2 ) Each Florida College System insti tution

board of trustees shall undertake a program

to eradicate any discrimination on the basis

of gender, race, or physical handicap in the

granting of salaries to employees.

24. After the Petition to Invalidate Rule was filed on

June 20, 2013, the Stat e Board made a technical change on

August 15, 2013, 2 / and the ÐLaw ImplementedÑ sections of the

challenged rule expanded and became sections 1001.64(4), (18),

1012.83, and 1012.855.

25. Section 1001.64 provides:

* * *

(4)(a) The board of trustees, after

considering recommendations submitted by the

Florida College System institution

president, may adopt rules pursuant to ss.

120.536 (1) and 120.54 to implement the

provisions of law conferring duties upon it.

These rules may s upplement those prescribed

by the State Board of Education if they will

contribute to the more orderly and efficient

operation of Florida College System

institutions.

(b) Each board of trustees is specifically

authorized to adopt rules, procedures, and

p olicies, consistent with law and rules of

the State Board of Education, related to its

mission and responsibilities as set forth in

s. 1004.65 , its governance, personnel,

budget and finance, administration,

programs, curriculum and instruction,

buildings a nd grounds, travel and

purchasing, technology, students, contracts

and grants, or college property.

* * *

(18) Each board of trustees shall establish

the personnel program for all employees of

the Florida College System institution,

including the president, pursuant to the

provisions of chapter 1012 and rules and

guidelines of the State Board of Education,

includ ing: compensation and other conditions

of employment; recruitment and selection;

nonreappointment; standards for performance

and conduct; evaluation; benefits and hours

of work; leave policies; recognition;

inventions and work products; travel;

learning op portunities; exchange programs;

academic freedom and responsibility;

promotion; assignment; demotion; transfer;

ethical obligations and conflict of

interest; restrictive covenants;

disciplinary actions; complaints; appeals

and grievance procedures; and sep aration and

termination from employment.

26. The undersigned recognizes that the strategy of the

Petitioner in this matter could have been dramatically different

had the technical change that added section 1001.64 as law

implemented been in place when th e rule was challenged in

June 2013 . However, rule 1 - 1.012 fails to prohibit such a

technical change after a rule has been challenged.

27. In this proceeding, t he Parties stipulated that the

rule comports with chapter 120 processes and that there have

be en no changes to Florida Statu t es enacted since the adoption

of the 2004 edition of the rule. Additionally, the parties also

stipulate d that the 2004 version of the rule did not have to be

changed in 2013 . In this case, even though the enabling

statutes were not amended , no demonstration that the State Board

lacked authority to amend the rule at the time it did was

p roven.

Whether the State Board Exceeded Its Authority

28. The First District set the standard for determining if

a rule is authorized or no t in Southwest Florida Water

Management District v. Save the Manatee Club, Inc. 773 So. 2d

594 (Fla. 1st DCA 2000) (cases cited therein) . In Save the

Manatee , the court affirmed a decision invalidating portions of

rule 40D - 4.051, because the exemptions fro m permitting

requirements created within the rule had no specific statutory

authority. Ultimately, the First District determined that the

question to be answered is " whether the statute contains a

specific grant of authority for the rule, not whether the grant

is specific enough. Either the enabling statute authorizes the

rule at issue or it does not. " Id. at 599.

29. The Legislature set up a structure for personnel rules

to be promulgated in the college system where the State Board ,

the high - level poli cy decision maker, and Board of Trustees are

both mandated separate duties to establish rules regarding

personnel .

30. Even though s ection 1001.02(6) might seem, on first

reading, to be a general grant of authority, it is a specific

grant of rulemaking a uthority as required by section 120.52(8),

because it explicitly directs that the State Board Ðshall

prescribe minimum standards , definitions, and guidelines for

Florida College System institutions Ñ by rule . The statute

further sets the categories that at a minimum the rules shall

address , including personnel, contracting, and program

offerings . Such a legislative directive requires the State

Board to establish the guidelines allowed for personnel and

contracting . If the legislature had intended that the rules for

personnel and contracting be detailed, Ð minimum Ñ would not have

been the adjective used in the statute . Therefore, section

1001.02(6) provide s rulemaking authority for the challenged rule

by meet ing the Ðspecific grant of authorityÑ test set fo rth in

Save the Manatee , supra .

31. Respondent agrees in its Proposed Final O rder

paragraph 36 that section 1001.02(1) provides a grant of general

rulemaking authority to the State Board.

32. Petitioner Ós contention that sections 1012.83 and

1012.855 ar e not sources of specific authority for the State

Board to promulgate the challenged rule is persuasive .

Section 1012.83 fails to i mpose a duty on the State Board and

simply requir es the Florida College System institution s employ

all administrative and in structional employees in the context of

contractual relationships . Section 1012.855 also does not

delineate any power to the State Board but only subjects

employment to rules of the State Board . Accordingly, neither

section 1012.83 n or 1012.855 is a spec i fic grant of rulemaking

authority within the meaning of the APA for the challenged rule .

33. Petitioner further maintains that rule 6A - 14.0411(9),

which grants colleges the authority to provide an administrative

leave of absence to a continuing contract instructor who accepts

annual employment in another capacity exceeds the State BoardÓs

grant of rulemaking authority or improperly delegates authority

not possessed by the State Board to the Board of Trustees. The

undersigned rejects such a contention in that s ection 1001.02(6)

provides the State Board adequate authority to promulgate

personnel rules and section 1012.855(1)(a) provides a specific

grant of rulemaking authority by authorizing the State Board to

adopt rules for personnel relative to Ðleave o f absence of all

types.Ñ The Board of Trustees Ó responsibilities are to

supplement the State BoardÓs rules regarding Ðleave policies.Ñ

Therefore, t he challenged rule is not an improperly delegation

but a minimum standard for the Board of Trustees to follo w

regarding leave .

34. Petitioner also challenges rule 6A - 14.0411(10), which

authorizes the individual Board of Trustees to provide an

exemption to time requirements in subsection(2) for certain

tenure track faculty, and contends the rule improperly deleg ates

authority not possessed by the State Board to the Board of

Trustees . PetitionerÓs contention is unsubstantiated since

establishing the personnel rule as mandated by section

1001.02(6)(a) require s the State Board to de lineate how the rule

is implement ed . Implementation would include acknowledging the

start up for the time requirements as well as timeline for it.

Whether the challenged Rule Lacks Adequate Enabling Legislation

35. Petitioner also maintains that none of the statutory

provisions cited as law implemented are adequate enabling

legislation to support the challenged rule . The starting point

for determining the applicability of section 1001.64 is the

title , ÐFlorida College System institution board of trustees;

powers and duties , Ñ which set s the parameters for the statute

and dedicates the section to the College System Institutions ,

not the State Board . Additionally, all three sections cited by

the State Boa rd as law implemented, section 1001.64(4)(a),

(4)(b), and (18) , each expressly ident ify responsibilities for

the Board of Trustees , no t the State Board . Specifically,

section 1001.64 (4)(a) states ÐThe board of trustees . . . Ñ;

1001.64(b) states ÐEach board of trustees is specifi cally

authorized to adopt rules . . . Ñ; and 1001.64(18) stat es ÐE ach

board of trustees shall establish the personnel program for all

employees of the Florida College System institution . Ñ It is

clear that the State Board neither has specific powers and

duties conferred to it regarding continuing contracts in

sectio n 1001.64 no r has any enabling language within the statute

to set parameters for college instructors continuing contracts .

The refore, it is concluded that there is simply no language in

section 1001.64 t o make it a valid enabling statute for the

challenge d rule .

36. Contrary to the position of the Petitioner, section s

1012.83 and 1012.855 both contain adequate legislative guidance

to constitute enabling law to implement or interpret by the

State Boa rd . Section 1012. 83 provides direction for the State

Boa rd to structure both administrative and instructional

contracts . Section 1012.855 provides guidance Ðrelative to

certification, tenure, leaves of absence of all types, including

sabbaticals, remuneration, and such other conditions of

employment as the Sta te Board of Education deems necessary and

proper,Ñ which allows t he challenged rule to set paramet ers for

employment consistent with the specific authority in

section 1001.02(6) .

37. PetitionerÓs assertion that rule 6A - 14.0411(8)

enlarges and/or modifies or contravenes the provisions of law

implemented, impermissibly delegates authority to the Boards of

Trustees , and /or viola tes the requirements of

section 120.52(8)(d) is unfounded . R ule 6A - 14.0411(8) requires

each Board of Trustees to develop appropriate measures of

student success , which will be used as part of the criteria for

granting continuing contracts and periodic performance reviews .

Rule p romulgation for evaluation s is a responsibility of the

Board of Trustees pursuant to section 1001.64(18) . H owever, t he

State Board is mandated by its specific authority , section

1001.02(6)(c) , to establish a rule to address program offerings

Ðwith tests and other assessment procedures that measure student

achievement. Ñ In order to measure progression, criteria to

measure student success would be within the parameters of the

specific authority and the challenged rule is the appropriate

tool to make sure each student is achieving . Since the State

Board and Board of Trustees have separate legislative

responsibili ties , no impermissible delegated authority exists.

Additionally, sections 1012.83 and 1012.855 provide valid law

implemented .

Is the Challenged Rule V ague

38 . Petitioner further contends in Prehearing Stipulation

section H paragraphs 2, 3, 4, 5, 6, and 9 that the challenged

rule is vague . It has already been established that the State

Board prescribes minimum standard personnel rules that each

Board of Trustees supplements with its individual promulgated

rules . The legislature provided broad powers to the State Board

as a policy maker to make minimum standard rules . Furthermore,

the legislature provided detailed duties to the Board of

Trustees that make the Board of Trustees both subordinate and

independent of the State Board . Specifically, the legisl ature

mandated the Board of Trustees promulgate the following

personnel program rule s with a list of specific categories in

section 1001.64(18): Ð compensation and other conditions of

employment; recruitment and selection; nonreappointment;

standards for p erformance and conduct; evaluation; benefits and

hours of work; leave policies; recognition; inventions and work

products; travel; learning opportunities; exchange programs;

academic freedom and responsibility; promotion; assignment;

demotion; transfer; et hical obligations and conflict of

interest; restrictive covenants; disciplinary actions;

complaints; appeals and grievance procedures; and separation and

termination from employment . Ñ

39. Even though, section 1001.64 is not the law

implemented in this pr oceeding and the Board of Trustees Ó

responsibilities are not at issue , section 1001.64 helps define

the parameters for the State BoardÓs rulemaking authority as

opposed to the Board of Trustees . Therefore, the following

references in the challenged r ule : Ð optional criteria Ñ for

policies ; Ð such other criteria as shall be included by the

Board Ñ ; Ðother criteria as may be included in the policy

approved by the board Ñ ; and Ðeach board shall adopt a policy

requiring periodic post - award reviews Ñ all establish ad equate

standards for each Board of Trustees subordinately and

independently to promulgate rule s regarding the aforementioned

criteria in the challenged rule for personnel and contracting

since each Board of Trustees have further specific direction

under se ction 1001.64(18) . Therefore, the challenged sections

are not vague in violation of section 120.52(8)(d).

40. For the reasons stated, the State Board has adequate

rulemaking authority and has complied with its statutory

directive under section 1001.02(6) to focus on high - level policy

decisions for personnel and contracting guidelines . T he

challenged rule in this matter is not vague in that it sets the

required minimum standards to be considered by each Board of

Trustees in promulgating personnel program rules for its

institution . Accordingly, because Petitioner ha s failed to show

that rule 6A - 14.0411 constitutes an Ðinvalid exercise of

delegated legislative authority, Ñ within the meaning of

s ection 120.52(8) (b), (c) and (d) , as alleged , the rule

challeng e cannot be sustained.

RECOMMENDATION

Based on the foregoing , it is therefore

ORDERED THAT:

The Petition filed by Petitioner pursuant to

section 120.56(3) seeking an administrative determination that

Florida Administrative Code Rule 6A - 14.0411 is an Ðinv alid

exercise of delegated legislative authority,Ñ as defined in

section 120.52(8 ) is hereby DISMISSED.

DONE AND ORDERED this 23rd day of December, 2013, in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Admi nistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

this 23rd da y of December , 2013 .

ENDNOTES

1 / For example, an administrative law judge may not invalidate

an existing rule simply because, in the judgeÓs opinion, it does

not represent the wisest or best policy choice. See Bd of Trs.

Of the Int. Impust Fund v . Levy , 656 So 2d 135 9, 1364 (Fla.

1st DCA 1995)(ÐThe issue before the hearing officer in this

[rule challenge] case was not whether the Trustees made the best

choice in limiting the lengths of the docks within the preserve,

or whether their choice is one that the appellee fin ds desirable

for his particular location.Ñ).

2 / Pursuant to rule 1 - 1.012(4), by letter dated August 15, 2013,

the State Board requested the Florida Department of State,

Bureau of Administrative Code, add sections 1001.64(4) and (18)

as the law implemente d for rule 6A - 14.0411.

Rule 1 - 1.012(4) provides the following:

The rulemaking authority, law implemented,

and history notes shall be corrected or

modified by writing a letter to the

Administrative Code and Weekly Section.

Such a change does not require n otification

in the Florida Administrative Weekly.

COPIES FURNISHED:

Anthony D. Demma, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

131 North Gadsden Street

Tallahassee, Florida 32302

David L. Jordan, Esquire

Department of Education

Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gary Chartrand, Chairman

State Board of Education

Turlington Building, Suite 1520

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Mr. Ken Plante, Coordinator

Joint Admin istrative Proced ure Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 323 99 - 1400

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agenc y clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.