98-004915RX Lucy Margolis vs. Dade County School Board
 Status: Closed
DOAH Final Order on Wednesday, June 2, 1999.

View Dockets  
Summary: School Board rule concerning performance assessment of on-site school administrators is not an invalid exercise of delegated legislative authority.





12Petitioner, )


15vs. ) Case No. 98-4915RX




27Respondent. )



32Pursuant to notice, a hearing was conducted in this case

42pursuant to Section 120.57(1), Florida Statutes, on March 26,

511999, by video teleconference at sites in Fort Lauderdale and

61Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

69Administrative Law Judge of the Division of Administrative



79For Petitioner: Lucy Margolis, pro se

8510430 Southwest 99th Street

89Miami, Florida 33176

92For Respondent: Twila Hargrove-Payne, Esquire

97Miami-Dade County School Board

1011450 Northeast Second Avenue, Suite 400

107Miami, Florida 33132


1141. Whether the challenged portions of Respondent's Manual

122of Administrative Personnel Procedures (MAPP), which is

129incorporated by reference in School Board Rule 6Gx13- 4D-1.022

138(specifically) that paragraph in subsection C-2 of the MAPP which

148references Section 231.29, Florida Statutes, and the following

156language in subsection C-8 of the MAPP, under Florida Principal

166Competency (FPC) No. 11: "The principal who has TACTICAL

175ADAPTABILITY: looks at problems as if there were no rules, then

186decides what to do to resolve the situation tactfully") are

197invalid exercises of delegated legislative authority, within the

205meaning of Chapter 120, Florida Statutes, for the reasons

214asserted by Petitioner.

2172. Whether Petitioner has standing, pursuant to Chapter

225120, Florida Statutes, to challenge these provisions.


234On November 2, 1998, Petitioner filed a petition with the

244Division of Administrative Hearings (Division) challenging the

251above-described portions of School Board Rule 6Gx13- 4D-1.022 . 1

261In her petition, Petitioner identified herself as: a parent of a

272child enrolled in the MDCPS [Miami-Dade County Public Schools]; a

282parent representative member of the Educational Excellence

289Council of Miami Killian Senior High School, where her child is a

301ninth-grade student; and "an advocate for better education."

309By order issued November 10, 1998, the Division's Chief

318Judge assigned the case to the undersigned Administrative Law

327Judge, who, on November 12, 1998, issued a Notice of Hearing by

339Video Teleconference scheduling the final hearing in this case

348for December 9, 1998. On November 17, 1998, Respondent filed a

359motion requesting a continuance of the final hearing, and

368thereafter, on November 18, 1998, filed an Amended Motion for

378Continuance of Final Hearing. A hearing on the latter motion was

389held by telephone conference call on November 19, 1998. During

399the telephone conference call, Petitioner indicated that she did

408not object to the final hearing being continued, provided that it

419was rescheduled for a date on or before December 18, 1998, or on

432or after March 1, 1999. By Order issued November 23, 1998,

443Respondent's Amended Motion for Continuance was granted. The

451final hearing was subsequently rescheduled for March 26, 1999.

460On March 25, 1999, the parties filed their Pre-Hearing

469Stipulation. In their Pre-Hearing Stipulation, the parties

476stated the following with respect to the "issues of fact which

487remain to be litigated":

492a) Petitioner's Position:

495That Petitioner has standing to challenge the

502Rule and MAPP.

505That Respondent has materially failed to

511follow the applicable APA rulemaking

516procedures or requirements regarding

520implementation, interpretation and/or making

524s. 231.29, F.S., specific within the Rule and

532MAPP since the words were incorporated


539That certain principal competencies contained

544in the MAPP exceed Respondent's grant of

551rulemaking authority and/or enlarge, modify,

556or contravene the specific provisions of the

563law implemented.

565That a portion of the MAPP which simply

573paraphrases s. 231.29, F.S. is vague, fails

580to establish adequate standards for agency

586decisions, and/or vests unbridled discretion

591in the agency.

594b) Respondent's Position:

597Whether the challenged excerpts of MAPP are a

605valid exercise of delegated legislative


611Whether the School Board properly followed

617rulemaking procedures when School Board Rule

6236Gx13- 4D-1.022 and MAPP were amended in

630November 5, 1997 and October 21, 1998.

637Whether Petitioner has standing to challenge

643the MAPP. . . .

648In their Pre-Hearing Stipulation, the parties stated the

656following with respect to the "issues of law which remain for

667determination of the Administrative Law Judge":

674a) Petitioner's Position:

677Respondent's failure to properly comply with

683all applicable APA rulemaking procedures

688regarding implementation, interpretation

691and/or making s. 231.29 F.S. specific within

698the Rule and MAPP should entitle Petitioner

705(a) to have this portion of the Rule declared

714an invalid exercise of delegated legislative

720authority or (b) to challenge this portion of

728the Rule based upon 120.56(2)[sic], F.S.

734That certain principal competencies contained

739in the MAPP exceed Respondent's grant of

746rulemaking authority and/or enlarge, modify

751or contravene the specific provisions of law

758implemented; and, as a result, that portion

765of the MAPP should be declared an invalid

773exercise of delegated legislative authority.

778That the portion of the MAPP which

785paraphrases s. 231.29, F.S., is vague, fails

792to establish adequate standards for agency

798decisions, and/or vests unbridled discretion

803in the agency; and, as a result, that portion

812of the MAPP should be declared an invalid

820exercise of delegated legislative authority.

825Petitioner has standing to challenge School

831Board Rule 6Gx13- 4D-1.022 and MAPP.

837b) Respondent's Position:

840Petitioner does not have standing to

846challenge School Board Rule 6Gx13- 4D-1.022

852and MAPP.

854School Board Rule 6Gx13- 4D-1.022 and MAPP

861were properly amended on November 5, 1997 and

869October 21, 1998.

872As noted above, the final hearing in this case was held on

884March 26, 1999. Three witnesses testified at the hearing:

893Petitioner; Dr. Joyce Annunziata, Senior Executive Director of

901Respondent's Office of Professional Standards; and Ileana

908Menendez, Respondent's Clerk. In addition to the testimony of

917these three witnesses, numerous exhibits were offered and

925received into evidence.

928At the close of the evidentiary portion of the final hearing

939on March 26, 1999, the undersigned, after receiving input from

949the parties, established, without objection from the parties, the

958following deadlines: for the filing of proposed final orders--

96730 days from the date of the filing of the hearing transcript

979with the Division; and for the issuance of the undersigned's

989final order-- 30 days from the filing date of the last-filed

1000proposed final order. The Transcript of the final hearing was

1010filed with the Division on April 21, 1999. Petitioner and

1020Respondent filed their proposed final orders on May 17, 1999, and

1031May 21, 1999, respectively. These post-hearing submittals have

1039been carefully considered by the undersigned.


1048Based upon the evidence adduced at hearing and the record as

1059a whole, including the parties' Pre-Hearing Stipulation, 2 the

1068following findings of fact are made:

10741. Respondent (School Board) is a duly-constituted school

1082board charged with the duty to operate, control and supervise all

1093free public schools within the school district of Miami-Dade

1102County, Florida, pursuant to Article IX, Section IV, of the

1112Florida Constitution, and Section 230.03, Florida Statutes.

11192. Petitioner is a resident of Miami-Dade County, Florida,

1128and the parent of a child enrolled in the Miami-Dade County

1139Public School System (MDCPS) as a ninth-grade student at Miami

1149Killian Senior High School (Killian). 3

11553. Petitioner is currently serving as the parent

1163representative on the Educational Excellence Council at Killian.

11714. As Petitioner states in her "resume" (Petitioner's

1179Exhibit 18), she is "an advocate for better education," and, "as

1190such . . . ha[s] participated in committees, written numerous

1200research-based reports, attended countless School Board

1206meetings, 4 and testified at many public hearings."

12145. Over the years, when she has had concerns regarding

1224practices or policies at her children's schools, she has made

1234these concerns known to School Board administrators and School

1243Board members.

12456. Petitioner is challenging, as an invalid exercise of

1254delegated legislative authority as defined in Section 120.52(8),

1262Florida Statutes, language found in parts of the School Site

1272Administrator Performance Planning and Assessment System (PPAS),

1279which is contained in section C of the Manual of Administrative

1290Personnel Procedures (MAPP) and which, together with the

1298remaining portions of the MAPP, is incorporated in, and made a

1309part of, School Board Rule 6Gx13- 4D-1.022 .

13177. Subsection C-1 of the PPAS (which Petitioner is not

1327challenging) sets forth the "[s]cope and [p]urpose" of the PPAS.

1337It provides as follows:

1341This section, effective with the 1998-1999

1347school year, sets forth the rules,

1353regulations and procedures for the

1358establishment, maintenance, and

1361administration of the performance planning

1366and assessment system applicable to school

1372site managerial personnel.

13758. Subsection C-2 of the PPAS contains a "[s]tatement of

1385[p]olicy." It provides as follows:

1390The Miami-Dade County Public Schools

1395Performance Planning and Assessment System

1400was developed as an aid to improving the

1408performance and developing the potential of

1414every administrator. A performance plan

1419mutually developed by the administrator and

1425the supervisor consists of three major


1432- Developing plans directly linked to

1438overall job functions as related to the job

1446duties and responsibilities, school site

1451target objectives, and/or major system

1456objectives, as applicable.

1459- Improving job performance by reviewing

1465past assessments and setting expectations for

1471improvement or enhancement.

1474- Developing personal potential through

1479emphasis on standards required for success

1485and professional growth in the present job,

1492as well as preparation for future career


1500In evaluating performance standards, the

1505emphasis is placed on collecting data which

1512indicate that the individual demonstrates or

1518practices the performance standards

1522established for the assigned position and the

1529school site target objectives. The

1534performance assessment procedures set forth

1539herein shall be adhered to strictly.

1545Administrators shall have their performance

1550evaluated by their immediate supervisor

1555(assessor) and their assessor's supervising

1560administrator (reviewer) only. Formal

1564assessments and evaluations placed in

1569administrator's official personnel files

1573shall be in compliance with the procedures

1580and instruments of the Performance Planning

1586and Assessment System.

1589Administrators being appraised need to be

1595aware of the rationale, intent and procedures

1602of the performance assessment system in

1608relation to their job assignment. Florida

1614Department of Education Performance

1618Assessment System guidelines:

1621- specify that a comprehensive performance

1627assessment system is fair, equitable, and

1633legally sound;

1635- establish procedures for the collection,

1641retrieval and use of data to provide feedback

1649to an individual, a team, and the system;

1657- provide data for recognizing high

1663performance through a variety of means;

1669- consider the specific conditions of the

1676site in establishing expectations;

1680- promote the growth and development of the

1688individual and the continuous improvement of

1694the organization;

1696- allocate time to plan, coach and counsel

1704for higher performance;

1707- provide orientation on the system and

1714skill development in observing, mentoring,

1719coaching and counseling for those in and

1726affected by the system.

1730Administrators who manage the performance

1735assessment system must have knowledge and

1741skills that go far beyond an academic

1748knowledge of the system. They must

1754understand and be able to respond to

1761evaluative data on the system. They must

1768also be able to link the performance

1775assessment system to the other components of

1782the Comprehensive Human Resources Development


1788Pursuant to Florida Statute 231.29, the

1794system (district) must include a mechanism to

1801give parents and teachers an opportunity to

1808provide input into the administrators

1813performance assessment, when appropriate.

1817The district mechanisms include notification

1822to parents of this provision printed on

1829student report cards and notification to

1835teachers of this provision through memorandum

1841included in staff handbooks . [Underlining


1848Principals must ensure that all assistant

1854principals are exposed to and/or have

1860experience in the 19 Florida Principal

1866Competencies and the five M-DCPS Technical

1872Skills. There may be cases where an

1879assistant principal may not be assigned to

1886work with all of the competencies and all of

1895the technical skills. However, all assistant

1901principals must be exposed to these

1907competencies and technical skills either

1912through actual experience(s), or attendance

1917at district sponsored workshops, or other

1923professional growth activities.

19269. Petitioner is challenging the underlined language of

1934subsection C-2 of the PPAS set forth above (Input Provision),

1944which was added to School Board Rule 6Gx13- 4D-1.022 (Rule) on or

1956about November 7, 1997.

196010. Before amending the Rule to add the Input Provision,

1970the School Board published a Notice of Intended Action (dated

1980September 12, 1997), which read, in pertinent part, as follows:

1990PURPOSE AND EFFECT: To amend Board Rule

19976Gx13- 4D-1.022 , Manual of Administrative

2002Personnel Procedures, by revising the

2007document, Manual of Administrative Personnel

2012Procedures (MAPP) , which is incorporated by

2018reference and is part of this rule, in order

2027to be in compliance with new state

2034legislation, Section 231.29 . . ., Florida


2042SUMMARY: The revised rule provides language

2048describing the mechanism to be used in the

2056District for giving parents and teachers

2062input into administrative assessment as

2067appropriate. . . .


2077AUTHORIZED: 230.22(2), F.S.


2085SPECIFIC: 231.02; 231.0861; 231.087(1);

2089236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC.

2094In addition, the School Board placed an advertisement in the

2104September 29, 1997, edition of the Miami Daily Business Review,

2114which read, in pertinent part, as follows:


2122The School Board of Dade County, Florida,

2129announces the following Board Rule action

2135will be taken at its 1:00 p.m. meeting on:

2144November 5, 1997

2147School Board Auditorium

21501450 N. E. Second Avenue

2155Miami, Florida 33132

2158To Amend:

21606Gx13- 4D-1.022 , Manual of Administrative

2165Personnel Procedures (MAPP), in order to be

2172in compliance with new state legislation,

2178Section 231.29 . . ., Florida Statutes[s].

2185Specific Authority: 230.22(2), F.S.

2189Law Implemented, Interpreted, or Made

2194Specific: 231.02; 231.0861; 231.087(1);

2198236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC

220311. Although Section 231.29, Florida Statutes, was

2210mentioned in the Input Provision, neither the "Specific

2218Authority," nor the "Law Implemented, Interpreted or Made

2226Specific" portions of the November 5, 1997, amended version of

2236the Rule contained any reference to Section 231.29, Florida


224612. It was not until the day after the October 21,

22571998, School Board meeting (the last School Board meeting at

2267which members of the School Board took action to amend the Rule)

2279that Section 231.29, Florida Statutes, was added to the "Law

2289Implemented, Interpreted or Made Specific" portion of the Rule.

2298The addition was made, not by the members of the School Board,

2310but by the School Board Clerk, Ileana Menendez, who believed that

2321such action was authorized by School Board Rule 6Gx13- 8C-1.061 ,

2331which, at all times material to the instant case, has provided as



2350The Superintendent of Schools, as Secretary

2356to the Board, shall have the authority to

2364review the School Board Rules and when judged

2372useful shall:

23741. Correct grammatical, typographical, and

2379like errors not affecting the construction or

2386meaning of the rules;

23902. Keep a record of corrections made

2397pursuant to subsection 1; and

24023. Report to the Board any corrections made.

2410Ms. Menendez reported the "correction" she had made to the Office

2421of the School Board Attorney.

242613. The English version of the "notification to

2434parents . . . printed on student report cards," 5 which is

2446referred to in the Input Provision, reads as follows:





247714. By providing such notification, the School Board alerts

2486the parent to the parent's opportunity to provide (at any time

2497the parent deems appropriate) information and opinion regarding

2505an administrator's performance for consideration by those

2512(specially-trained individuals) charged with the responsibility

2518of evaluating the administrator's performance.

252315. The significance of the "19 Florida Principal

2531Competencies" referred to in the paragraph immediately following

2539the Input Provision is described in subsection C-7 of the PPAS,

2550which reads as follows:


2556In order to qualify for a rating

2563Distinguished Performance Standards on the

2568annual evaluation form, assessees must be

2574rated Distinguished Performance Standards on

257918 out of the 19 Florida Principal

2586Competencies and rated as Distinguished

2591Performance Standards on five out of the five

2599M-DCPS Technical Skills, and on Performance

2605Related to Job Targets.

2609In order to qualify for a rating Commendable

2617Performance Standards, assessees must be

2622rated as Commendable Performance Standards on

262817 out of the 19 Florida Principal

2635Competencies and rated as Commendable

2640Performance Standards on four out of the five

2648M-DCPS Technical Skills. Performance Related

2653to Job Targets must be at least 90%

2661accomplished (C-8 through C-11).

2665In order to qualify for a rating Competent

2673Performance Standards, assessees must be

2678rated as Competent Performance Standards on

268416 out of the 19 Florida Principal

2691Competencies and rated as Competent

2696Performance Standards on three out of the

2703five M-DCPS Technical Skills. Performance

2708Related to Job Targets must be at least 80%

2717accomplished (C-8 through C-11).

2721Assessees not exhibiting the minimum number

2727of indicators listed for each standard of the

273519 Florida Principal Competencies and/or the

2741five M-DCPS Technical Skills, and/or who have

2748not met their Performance Related to Job

2755Targets will receive an overall rating of

2762Below Expectations on Performance Standards

2767and will require a Professional Improvement

2773Plan (C-8 through C-11).

277716. The "19 Florida Principal Competencies" are listed and

2786explained in subsection C-8 of the PPAS. "Florida Principal

2795Competency" (FPC) No. 11 is "tactical adaptability," which is

2804described in subsection C-8 of the PPAS as follows:

2813TACTICAL ADAPTABILITY is the ability to adapt

2820one's interaction and behavior to fit the

2827situation. (3 out of 4)


2835effectiveness in varying environments, tasks,

2840responsibilities or with people; FLEXIBILITY:

2845Modifying behavior to reach a goal;

2851INDIVIDUAL LEADERSHIP: Utilizing appropriate

2855interpersonal styles to guide individuals to

2861task accomplishment.

2863The principal who has TACTICAL ADAPTABILITY:

286911.1 adopts roles of listener, facilitator

2875and confronter as needed

287911.2 finds ways to get around policies and

2887procedures which interfere with the school's


289411.3 looks at problems as if there are no

2903rules, then decides what to do to resolve the

2912situation tactfully

291411.4 understands how own behavior affects

2920others and makes appropriate adjustments.

292517. Except for the language in numbered paragraph 11.2,

2934which Petitioner is no longer challenging (as a result of the

2945School Board's agreement to initiate action to replace it with

2955other language agreeable to Petitioner 6 ), the foregoing,

2964including the language in numbered paragraph 11.3 (Paragraph

297211.3), the validity of which (along with the Input Provision)

2982Petitioner disputes, is a verbatim recital of language contained

2991in the Florida Principal Competencies section of the Human

3000Resources Management and Development System Guidelines in

3007Florida's School Districts developed, after study and scientific

3015research, by the Florida Council on Educational Management.


302618. In the instant case, Petitioner is challenging the

3035Input Provision and Paragraph 11.3 (which have been incorporated

3044in, and made a part of, the Rule) pursuant to Section 120.56,

3056Florida Statutes, which provides, in pertinent part, as follows:

3065(1) General procedures for challenging the

3071validity of a rule . . . .--

3079(a) Any person substantially affected by a

3086rule . . . may seek an administrative

3094determination of the invalidity of the rule

3101on the ground that the rule is an invalid

3110exercise of delegated legislative authority.

3115(b) The petition seeking an administrative

3121determination must state with particularity

3126the provisions alleged to be invalid with

3133sufficient explanation of the facts or

3139grounds for the alleged invalidity and facts

3146sufficient to show that the person

3152challenging a rule is substantially affected

3158by it . . . .

3164(c) The petition shall be filed with the

3172division which shall, immediately upon

3177filing, forward copies to the agency whose

3184rule is challenged, the Department of State,

3191and the committee. Within 10 days after

3198receiving the petition, the division director

3204shall, if the petition complies with the

3211requirements of paragraph (b), assign an

3217administrative law judge who shall conduct a

3224hearing within 30 days thereafter, unless the

3231petition is withdrawn or a continuance is

3238granted by agreement of the parties or for

3246good cause shown. . . . The failure of an

3256agency to follow the applicable rulemaking

3262procedures or requirements set forth in this

3269chapter shall be presumed to be material;

3276however, the agency may rebut this

3282presumption by showing that the substantial

3288interests of the petitioner and the fairness

3295of the proceedings have not been impaired.

3302(d) Within 30 days after the hearing, the

3310administrative law judge shall render a

3316decision and state the reasons therefor in

3323writing. The division shall forthwith

3328transmit copies of the administrative law

3334judge's decision to the agency, the

3340Department of State, and the committee.

3346(e) Hearings held under this section shall

3353be conducted in the same manner as provided

3361by ss. 120.569 and 120.57, except that the

3369administrative law judge's order shall be

3375final agency action. The petitioner and the

3382agency whose rule is challenged shall be

3389adverse parties. Other substantially

3393affected persons may join the proceedings as

3400intervenors on appropriate terms which shall

3406not unduly delay the proceedings. Failure to

3413proceed under this section shall not

3419constitute failure to exhaust administrative

3424remedies. . . .

3428(3) Challenging existing rules; special


3434(a) A substantially affected person may seek

3441an administrative determination of the

3446invalidity of an existing rule at any time

3454during the existence of the rule.

3460(b) The administrative law judge may declare

3467all or part of a rule invalid. The rule or

3477part thereof declared invalid shall become

3483void when the time for filing an appeal

3491expires. The agency whose rule has been

3498declared invalid in whole or part shall give

3506notice of the decision in the Florida

3513Administrative Weekly in the first available

3519issue after the rule has become void.

352619. "In accordance with the general rule, applicable in

3535court proceedings, 'the burden of proof, apart from statute, is

3545on the party asserting the affirmative of an issue before an

3556administrative tribunal.'" Florida Department of Transportation

3562v. J.W.C. Company , 396 So. 2d 778, 788 (Fla. 1st DCA 1981); see

3575also Department of Banking and Finance v. Osborne Stern and

3585Company , 670 So. 2d 932 (Fla. 1996)("'The general rule is that a

3598party asserting the affirmative of an issue has the burden of

3609presenting evidence as to that issue."). Because Chapter 120,

3619Florida Statutes, does not provide otherwise, 7 a person, like

3629Petitioner, challenging an existing rule has the burden of

3638showing that the challenged rule is invalid. See Cortes v. State

3649Board of Regents , 655 So. 2d 132, 135-136 (Fla. 1st DCA 1995);

3661Humana, Inc., v. Department of Health and Rehabilitative

3669Services , 469 So. 2d 889, 890 (Fla. 1st DCA 1985)("One who

3681attacks the validity of a rule on the grounds of arbitrariness or

3693capriciousness carries the burden of demonstrating by a

3701preponderance of the evidence that the rule is not supported by

3712fact or logic, was adopted without thought or reason or is

3723otherwise not based upon competent, substantial evidence.").

373120. An existing rule may be challenged pursuant to Section

3741120.56, Florida Statutes, only on the ground that it is an

"3752invalid exercise of delegated legislative authority," as defined

3760in Section 120.52(8), Florida Statutes, 8 which provides as


3770(8) "Invalid exercise of delegated

3775legislative authority" means action which

3780goes beyond the powers, functions, and duties

3787delegated by the Legislature. A proposed or

3794existing rule is an invalid exercise of

3801delegated legislative authority if any one of

3808the following applies:

3811(a) The agency has materially failed to

3818follow the applicable rulemaking procedures

3823or requirements set forth in this chapter;

3830(b) The agency has exceeded its grant of

3838rulemaking authority, citation to which is

3844required by s. 120.54(3)(a)1.;

3848(c) The rule enlarges, modifies, or

3854contravenes the specific provisions of law

3860implemented, citation to which is required by 9

3868s. 120.54(3)(a)1.;

3870(d) The rule is vague, 10 fails to establish

3879adequate standards for agency decisions, or 11

3886vests unbridled discretion in the agency;

3892(e) The rule is arbitrary or capricious; 12

3900(f) The rule is not supported by competent

3908substantial evidence; or

3911(g) The rule imposes regulatory costs on the

3919regulated person, county, or city which could

3926be reduced by the adoption of less costly

3934alternatives that substantially accomplish

3938the statutory objectives

3941A grant of rulemaking authority is necessary

3948but not sufficient to allow an agency to

3956adopt a rule; a specific law to be

3964implemented is also required. An agency may

3971adopt only rules that implement, interpret,

3977or make specific the particular powers and

3984duties granted by the enabling statute. No

3991agency shall have authority to adopt a rule

3999only because it is reasonably related to the

4007purpose of the enabling legislation and is

4014not arbitrary and capricious, nor shall an

4021agency have the authority to implement

4027statutory provisions setting forth general

4032legislative intent or policy. Statutory

4037language granting rulemaking authority or

4042generally describing the powers and functions

4048of an agency shall be construed to extend no

4057further than the particular powers and duties 13

4065conferred by the same statute.

4070The Administrative Law Judge assigned to hear the challenge may

4080declare the proposed rule invalid only if one (or more) of the

"4092seven circumstances" enumerated in subsections (8)(a) through

4099(f) of Section 120.52, Florida Statutes, are found to exist. See

4110St. Johns River Water Management District v. Consolidated Tomoka

4119Land Co. , 717 So. 2d 72, 77 (Fla. 1st DCA 1998). To base a

4133finding of invalidity on circumstances not specifically mentioned

4141in Section 120.52(8), Florida Statutes, would be an impermissible

4150extension of the Administrative Law Judge's authority beyond the

4159boundaries established by the Legislature. See Moonlit Waters

4167Apartments v. Cauley , 666 So. 2d 898, 900 (Fla. 1996)("Under the

4179principle of statutory construction, expressio unius est exclusio

4187alterius , the mention of one thing implies the exclusion of

4197another."); City of Cape Coral v. GAC Utilities, Inc., of

4208Florida , 281 So. 2d 493, 495-96 (Fla. 1973)("All administrative

4218bodies created by the Legislature are not constitutional bodies,

4227but, rather, simply mere creatures of statute. This, of course,

4237includes the Public Service Commission. . . . . As such, the

4249Commission's powers, duties and authority are those and only

4258those that are conferred expressly or impliedly by statute of the

4269State. . . . Any reasonable doubt as to the lawful existence of

4282a particular power that is being exercised by the Commission must

4293be resolved against the exercise thereof, . . . and the further

4305exercise of the power should be arrested."); Coastal Petroleum

4315Company v. Department of Environmental Protection , 649 So. 2d 930

4325(Fla. 1st DCA 1995)("Relying upon the well established principle

4335that the powers of administrative agencies are measured and

4344limited by the statutes or acts in which such powers are

4355expressly granted or implicitly conferred, . . . the appellants

4365correctly argue that the final order must be reversed because the

4376department acted without authority and contrary to legislative

4384intent when it required security in excess of the annual fund

4395fee."); Sun Coast International, Inc. v. Department of Business

4405Regulation , 596 So. 2d 1118, 1121 (Fla. 1st DCA 1991)("[A]

4416legislative direction as to how a thing shall be done is, in

4428effect, a prohibition against its being done in any other way.");

4440Schiffman v. Department of Professional Regulation, Board of

4448Pharmacy , 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An

4460administrative agency has only the authority that the legislature

4469has conferred it by statute."); Department of Environmental

4478Regulation v. Puckett Oil , 577 So. 2d 988, 991 (Fla. 1st DCA

44901991)("We are of the view that if it was DOAH's intent in

4503adopting rule 22I-6.035(5)(a) to establish a jurisdictional time

4511limitation upon the filing of an agency's responsive pleading to

4521a petition for fees and costs, DOAH has acted in excess of any

4534express or reasonably implied delegated legislative authority.

4541It is well recognized that the powers of administrative agencies

4551are measured and limited by the statutes or acts in which such

4563powers are expressly granted or implicitly conferred.").

457121. In the instant case, Petitioner objects to the

4580challenged portions of the Rule on substantive and procedural

4589grounds. Among her arguments is that Paragraph 11.3 "exceed[s]

4598Respondent's grant of rulemaking authority and/or enlarge[s],

4605modif[ies] or contravene[s] the specific provisions of law

4613implemented; and as result, that portion of the MAPP should be

4624declared an invalid exercise of delegated legislative authority."

463222. "[T]he review standards for assessing the [substantive]

4640validity of proposed rules [were] drastically altered by the 1996

4650amendments to Florida's Administrative Procedure Act. . . .

4659[T]he 1996 [L]egislature intended, through its enactment of

4667sections 120.52(8) and 120.536(1), 14 Florida Statutes . . . to

4678overrule earlier Florida decisions to the extent that they had

4688held a rule was a valid exercise of delegated legislative

4698authority if it was reasonably related to the enabling statute

4708and not arbitrary or capricious." Department of Business and

4717Professional Regulation v. Calder Race Course, Inc. , 724 So. 2d

4727100, 101-02 (Fla. 1st DCA 1998).

473323. Under the current statutory framework, "the proper test

4742to determine whether a rule is a valid exercise of delegated

4753authority is a functional test based on the nature of the power

4765or duty at issue and not the level of detail in the language of

4779the applicable statute. The question is whether the rule falls

4789within the range of powers the Legislature has granted to the

4800agency for the purpose of enforcing or implementing the statutes

4810within its jurisdiction. A rule is a valid exercise of delegated

4821legislative authority if it regulates a matter directly within

4830the class of powers and duties identified in the statute to be

4842implemented. This approach meets the legislative goal of

4850restricting the agencies' authority to promulgate rules, and, at

4859the same time, ensures that the agencies will have the authority

4870to perform the essential functions assigned to them by the

4880Legislature." St. Johns River Water Management District v.

4888Consolidated Tomoka Land Co. , 717 So. 2d 72, 80-81 (Fla. 1st DCA

49001998); see also Department of Business and Professional

4908Regulation v. Calder Race Course, Inc. , 724 So. 2d 100, 102 (Fla.

49201st DCA 1998)("We reiterate that the term 'particular powers and

4931duties granted by the enabling statute,' as used in amended

4942sections 120.52(8) and 120.536(1), requires a determination of

4950whether the rule 'falls within the range of powers the

4960Legislature has granted to the agency for the purpose of

4970enforcing or implementing the statutes within its

4977jurisdiction.'"); Agency for Health Care Administration, Board of

4986Clinical Laboratory Personnel v. Florida Coalition of

4993Professional Laboratory organizations , 718 So. 2d 869, 871 (Fla.

50021st DCA 1998)("In our opinion, the primary means for examining

5013the validity of a rule--existing or proposed--continues to be

5022whether the contested rule falls within the 'particular powers

5031and duties granted by the enabling statute.'").

503924. Applying these principles to the instant case, it is

5049evident that Paragraph 11.3 is not beyond the scope of the School

5061Board's statutory authority.

506425. Section 230.23, Florida Statutes, describes the "powers

5072and duties" of district school boards, including those (set forth

5082in subsection (5) of the statute) relating to "personnel"

5091matters. Subsection (18) of the statute authorizes district

5099school boards to "[a]dopt rules pursuant to ss. 120.536(1) and

5109120.54 to implement the provisions of this section." A more

5119specific grant of authority to district school boards to adopt

5129personnel-related "policies and procedures" is found in Section

5137230.23005(11), Florida Statutes, which provides that a "school

5145board may adopt policies and procedures necessary for the

5154management of all personnel of the school system."

516226. Paragraph 11.3 is among such "policies and procedures"

5171that the School Board has adopted in an effort to comply with the

5184legislative mandate, set forth in Section 231.29(1), Florida

5192Statutes, that each school district have in place "procedures for

5202assessing the performance of duties and responsibilities of

5210all . . . administrative, and supervisory personnel employed by

5220the school district." Petitioner does not contest the School

5229Board's authority to adopt, by rule, a school site administrator

5239performance assessment system, which identifies standards upon

5246which these administrators will be evaluated. Rather, it appears

5255that she objects specifically to Paragraph 11.3 because she does

5265not believe that it is appropriate for a principal to be

5276rewarded, in terms of receiving a favorable assessment, for

"5285look[ing] at problems as if there were no rules, then decid[ing]

5296what to do to resolve the situation favorably." A review of the

5308record in the instant case, however, does not support the

5318conclusion that the School Board's decision to include Paragraph

532711.3 in the PPAS was without reason or logic or was otherwise

5339inappropriate or unlawful. To the contrary, the record

5347affirmatively reveals that such action on the part of the School

5358Board constituted a reasonable and valid exercise of authority

5367that it has been delegated by the Legislature.

537527. Paragraph 11.3 was taken, word-for-word, from the

5383Florida Principal Competencies section of the Human Resources

5391Management and Development System Guidelines in Florida's School

5399Districts (HRMDS Guidelines) developed, after study and

5406scientific research, by the Florida Council on Educational

5414Management (FCEM). The FCEM was created by Section 231.087,

5423Florida Statutes, subsections (1) through (3) of which provide as


5434(1) Intent.--The Legislature recognizes that

5439quality education in the public schools of

5446this state requires excellence in its

5452principals and other managers. Efficient and

5458effective management of schools to meet the

5465needs of students in today's society requires

5472a unique blend of skills, experience, and

5479academic background which is rarely provided

5485through typical baccalaureate or graduate

5490programs in education. The purpose of this

5497section is to provide for a state, regional,

5505and district support system for excellence in

5512principals and other educational managers.

5517This support system shall include the

5523identification of those competencies basic to

5529effective management of schools;

5533a performance-based management training

5537program; a program of competency-based

5542certification for school managers, to become

5548effective July 1, 1986; a performance-based

5554evaluation and compensation program for

5559educational managers; and a research and

5565service center for principals and other

5571educational managers. It is further intended

5577that this section encourage career

5582development, inservice training, and skills

5587enhancement for present and potential

5592education managers.

5594(2) Florida council on educational


5600(a) There is created the Florida Council on

5608Educational Management, to consist of 17

5614members appointed by the Governor, President

5620of the Senate, and Speaker of the House of

5629Representatives after consultation with the

5634appropriate professional associations,

5637including representatives of the private-

5642sector management community.

56451. The Governor, President of the Senate,

5652and Speaker of the House of Representatives

5659shall each appoint two members from the

5666principals of the district school systems of

5673the state.

56752. The Governor, President of the Senate,

5682and Speaker of the House of Representatives

5689shall each appoint one member from the

5696faculties of the institutions of higher

5702learning in the state which offer programs in

5710business administration, educational

5713management, or social sciences.

57173. The Governor, President of the Senate,

5724and Speaker of the House of Representatives

5731shall each appoint one member from the

5738private-sector management community.

57414. The Governor shall appoint one member

5748each from the following categories:

5753a. Elected school superintendent.

5757b. Appointed school superintendent.

5761c. District school board member.

5766d. District school personnel engaged in

5772management training.

5774e. Department of Education personnel with

5780systemwide management responsibilities.

5783(b) Each member shall serve for a term of 4

5793years, and terms shall be staggered. Each

5800member shall be entitled to receive per diem

5808and expenses for travel as provided in s.

5816112.061 while carrying out official business

5822of the council. The members shall elect

5829annually a chair and such other officers as

5837may be necessary. A vacancy shall be filled

5845in the same manner as the original

5852appointment and shall be filled for the

5859remainder of the term.

5863(c) The council shall be assigned to the

5871Department of Education for administrative


5877(3) Duties of council.--The council shall

5883have the following duties:

5887(a) To identify those competencies which

5893characterize high-performing principals and

5897other managers in the public schools of this 15


5907(b) To validate through scientific research

5913the identified competencies.

5916(c) To identify standards and procedures for

5923measuring and evaluating performance of the

5929identified competencies.

5931(d) To identify the training processes

5937required for school managers to acquire the

5944identified competencies and to develop

5949training materials which cannot be obtained

5955from existing sources.

5958(e) To identify the procedures necessary to

5965develop and implement a program of competency

5972certification for school managers.

5976(f) To develop the policies and procedures

5983necessary to adopt and implement a

5989compensation program for school managers

5994which is based on successful performance of

6001the identified competencies.

6004(g) To identify criteria for the screening,

6011selection, and appointment of school


6017(h) To develop and approve guidelines for

6024the approval of school district training

6030programs used for the certification of


6037(i) To establish an educational management

6043and development network to facilitate

6048communication, involvement, and mutual

6052assistance among the educational managers.

6057(j) To serve as the Board of Directors of

6066the Florida Academy for School Leaders.

6072(k) To report no later than September 1 of

6081each year for the previous fiscal year to the

6090Commissioner of Education, the Governor, the

6096President of the Senate, the Speaker of the

6104House of Representatives, and the chairs of

6111the Senate and House of Representatives

6117committees on public school education on the

6124expenditures, activities, and accomplishments

6128of the council, the academy, and the Center

6136for Interdisciplinary Advanced Graduate

6140Study. Such report shall also include a

6147statement of the objectives and overall

6153program for the coming year, the recommended

6160level of funding for the overall program for

6168that year, and any other recommendations

6174deemed by the council to be appropriate.

6181(l) To perform such additional studies and

6188activities as are necessary to achieve the

6195purpose of this act.

6199Not rejecting, but rather adopting, as the School Board has done

6210in Paragraph 11.3, one of the FCEM-identified "standards and

6219procedures for measuring and evaluating performance of the

6227[FCEM-]identified [scientifically validated] competencies . . .

6234which characterize high-performing principals" is consistent

6240with, not contrary to, the intent expressed by the Legislature in

6251subsection (1) of Section 231.087, Florida Statutes, and within

6260the range of powers granted to the School Board by the


627228. Contrary to the argument advanced by Petitioner, there

6281is no legal basis upon which the School Board's adoption of the

6293language in Paragraph 11.3 may be invalidated pursuant to Chapter

6303120, Florida Statutes.

630629. With respect to the Input Provision, Petitioner

6314contends that it should be "declared an invalid exercise of

6324delegated legislative authority" because it fails to properly

"6332implement[], interpret[] and/or mak[e] [S]ection 231.29, F. S.,

6340specific," and "is vague, fails to establish adequate standards

6349for agency decisions and/or vests unbridled discretion in the


635930. The first sentence of the Input Provision simply states

6369that Section 231.29, Florida Statutes, requires the School Board

6378to develop a "mechanism to give parents and teachers an

6388opportunity to provide input into the administrators performance

6396assessment, when appropriate." This is an accurate statement of

6405the law that is no less clear, precise and understandable than

6416the statutory provision it discusses. The second sentence of the

6426Input Provision describes, in a clear and unambiguous manner, the

"6436mechanism" the School Board uses to provide parents and teachers

6446a chance to give the input discussed in the previous sentence.

6457While the described "mechanism" may not be the only one the

6468School Board could have selected to comply with the requirement

6478of Section 231.291(5), Florida Statutes, the School's Board's

6486interpretation of the statute to allow such a "mechanism" (which

6496interpretation is codified in the Input Provision) is a

6505reasonable one and does not constitute an "invalid exercise of

6515delegated legislative authority," as defined in Section

6522120.52(8), Florida Statutes. See Orange Park Kennel Club v.

6531Department of Business and Professional Regulation , 644 So. 2d

6540574, 576 (Fla. 1st DCA 1994)("An agency's construction of a

6551statute which it administers is entitled to great weight and will

6562not be overturned unless the agency's interpretation is clearly

6571erroneous; the agency's interpretation need not be the sole

6580possible interpretation or even the most desirable one; it need

6590only be within the range of possible interpretations.").

659931. Petitioner also contends that the School Board failed

6608to follow the required rulemaking procedures when it amended the

6618Rule to include the Input Provision. Among the procedural

6627rulemaking requirements set forth in Chapter 120, Florida

6635Statutes, which, if not followed, may result in a finding that

6646there has been "an invalid exercise of delegated legislative

6655authority," as contemplated by subsection (8)(a) of Section

6663120.52, Florida Statutes, are those notice requirements found in

6672subsection (3)(a) of Section 120.54, Florida Statutes, which

6680provides, in pertinent part, as follows:


6689(a) Notices.-

66911. Prior to the adoption, amendment, or

6698repeal of any rule other than an emergency

6706rule, an agency, upon approval of the agency

6714head, shall give notice of its intended

6721action, setting forth a short, plain

6727explanation of the purpose and effect of the

6735proposed action; the full text of the

6742proposed rule or amendment and a summary

6749thereof; a reference to the specific

6755rulemaking authority pursuant to which the

6761rule is adopted; and a reference to the

6769section or subsection of the Florida Statutes

6776or the Laws of Florida being implemented,

6783interpreted, or made specific. . . .

6790Prior to adding the Input Provision to the Rule, the School Board

6802gave written notice of its intended action. Although neither the

"6812Specific Authority," nor the "Law Implemented, Interpreted or

6820Made Specific" portions of the notice contained any reference to

6830Section 231.29, Florida Statutes, elsewhere in the notice the

6839School Board clearly conveyed that the addition of the Input

6849Provision was being made "to be in compliance with new state

6860legislation, [Section] 231.29," Florida Statutes. Accordingly,

6866to the extent that the failure of the School Board to include a

6879reference to Section 231.29, Florida Statutes, in either the

"6888Specific Authority" or "Law Implemented, Interpreted or Made

6896Specific" portions of the notice was a violation of the

6906rulemaking requirements set forth in Section 120.54(3)(a),

6913Florida Statutes, the violation was harmless and not material (in

6923that it did not impair anyone's substantial interests or the

6933fairness of the rulemaking process), and it therefore does not

6943warrant invalidation of the Input Provision.

694932. Inasmuch as Petitioner has failed to show that the

6959portions of the Rule she is challenging constitute "invalid

6968exercises of delegated legislative authority," within the meaning

6976of Section 120.52(8), Florida Statutes, as she has alleged, her

6986petition challenging these portions of the Rule is hereby


6997DONE AND ORDERED this 2nd day of June, 1999, in Tallahassee,

7008Leon County, Florida.



7015Administrative Law Judge

7018Division of Administrative Hearings

7022The DeSoto Building

70251230 Apalachee Parkway

7028Tallahassee, Florida 32399-3060

7031(850) 488-9675 SUNCOM 278-9 675

7036Fax Filing (850) 921-6847


7041Filed with the Clerk of the

7047Division of Administrative Hearings

7051this 2nd day of June, 1999.


70581/ In her petition, Petitioner also challenged other language in

7068subsection C-8 of the MAPP, under Florida Principal Competency

7077(FPC) No. 11 ("The principal who has TACTICAL ADAPTABILITY:

7087finds ways to get around policies and procedures."). The

7097parties, however, resolved their dispute concerning this

7104language, when, at the final hearing in this case, Respondent

7114agreed to initiate action to revise this portion of the MAPP to

7126read: "The principal who has TACTICAL ADAPTABILITY: finds ways

7135to overcome barriers that impede school progress.".

71432/ There being no reason not to do so, the undersigned has

7155accepted the parties' statement, in their Pre-Hearing

7162Stipulation, of "facts which have been admitted and require no

7172proof." See Gunn Plumbing, Inc. v. The Dania Bank , 252 So. 2d 1,

71854 (Fla. 1971)("A stipulation properly entered into and relating

7195to a matter upon which is appropriate to stipulate is binding

7206upon the parties and the Court."); Johnson v. Johnson , 663 So. 2d

7219663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of

7231encouraging stipulations to minimize litigation and expedite

7238resolution of disputes, the law provides that '(s)uch

7246stipulations should be enforced if entered into with good faith

7256and not obtained by fraud, misrepresentation, or mistake, and not

7266against public policy.'"); EGYB, Inc. v. First Union National

7276Bank of Florida , 630 So. 2d 1216, 1217 (Fla. 5th DCA

72871994)("Unless grounds for recission or withdrawal are shown, the

7297trial court is bound to strictly enforce the agreement between

7307the parties.").

73103/ Petitioner also has an older child who is a "MDCPS graduate."

73224/ Petitioner attends approximately 90 percent of the School

7331Board's meetings and frequently addresses School Board members

7339regarding items on the agenda that are of interest to her.

73505/ The notification is printed in both English and Spanish.

73606/ See footnote 1 above.

73657/ Unlike subsection (2) of Section 120.56, Florida Statutes,

7374which addresses challenges to proposed rules, subsection (3) of

7383the statute does not contain any language suggesting that the

7393agency, in a proceeding involving a challenge to one of its

7404existing rules, has the burden of proof. See Agency for Health

7415Care Administration, Board of Clinical Laboratory Personnel v.

7423Florida Coalition of Professional Laboratory Organizations, Inc. ,

7430718 So. 2d 869, 871 (Fla. 1998) ("We agree with appellant that

7443the 1996 amendments to the Administrative Procedure Act (APA),

7452chapter 120, Florida Statutes, have placed on the agency 'the

7462ultimate burden of persuasion to show that the proposed rule is a

7474valid exercise of delegated legislative authority.'"); St. Johns

7483River Water Management District v. Consolidated Tomoka Land Co. ,

7492717 So. 2d 72, 76 (Fla. 1st DCA 1998)("A party challenging a

7505proposed rule [pursuant to Section 120.56, Florida Statutes] has

7514the burden of establishing a factual basis for the objections to

7525the rule, and then the agency has the ultimate burden of

7536persuasion to show that the proposed rule is a valid exercise of

7548delegated legislative authority."); Section 120.56(2)(a), Florida

7555Statutes ("The petition shall state with particularity the

7564objections to the proposed rule and the reasons that the proposed

7575rule is an invalid exercise of delegated legislative authority.

7584The agency then has the burden to prove that the proposed rule is

7597not an invalid exercise of delegated legislative authority as to

7607the objections raised.").

76118/ It was not until 1987 that a definition for an "invalid

7623exercise of delegated legislative authority" was added to Chapter

7632120, Florida Statutes, as was observed in Florida League of

7642Cities v. Department of Environmental Regulation , 603 So. 2d

76511363, 1367 (Fla. 1st DCA 1992). See Chapter 87-385, Section 2,

7662Laws of Florida.

76659/ A rule that merely tracks the language of its enabling

7676statute is not an "invalid exercise of delegated legislative

7685authority," within the meaning of either subsection (b) or (c) of

7696Section 120.52(8), Florida Statutes. See Ameriquatic, Inc. v.

7704Department of Natural Resources , 651 So. 2d 114, 119 (Fla. 1st

7715DCA 1995)("We agree with the hearing officer's ruling that,

7725because the criteria in proposed rule 16C-20.0055(1)(a)5 track

7733the language in section 369.20, Florida Statutes, the rule does

7743not exceed the statutory authorization or enlarge, modify or

7752contravene the statute."). A "person regulated by the agency or

7763having substantial interest in an agency rule" who wants the

7773agency to adopt a rule that does more than merely restate or

7785paraphrase statutory language can file a petition to initiate

7794rulemaking pursuant to Section 120.54(7), Florida Statutes, which

"7802specif[ies] the proposed rule and the action requested."

781010/ A rule is vague if persons of common intelligence must guess

7822the rule's meaning and if persons affected by the rule are not

7834properly apprised of the rule's effect on them. See City of St.

7846Petersburg v. Pinellas County Policy Benevolent Association , 414

7854So. 2d 293 (Fla. 2d DCA 1982).

786111/ "An administrative agency must have some discretion when a

7871regulatory statute is in need of construction in its

7880implementation. . . . An administrative rule by which an agency

7891exercises such discretion, or which fails to extinguish the

7900discretion a statute confers, is not invalid on that account."

7910Cortes v. State Board of Regents , 655 So. 2d 132, 137 (Fla. 1st

7923DCA 1995); see also Florida Public Service Commission v. Florida

7933Waterworks Association , 24 Fla. L. Weekly D1177b (1999 WL

7942285825)(Fla. 1st DCA May 10, 1999)("A rule which 'fails to

7953establish adequate standards for agency decisions, or vests

7961unbridled discretion in the agency,' s. 120.52(8)(d), Fla. Stat.

7971(Supp. 1996), is invalid. But no rule is properly invalidated

7981simply because 'governing statutes, not the challenged rule,

7989confer ... discretion.'").

799312/ An "arbitrary" action is "one not supported by facts or

8004logic, or [is] despotic." A "capricious" action is "one which is

8015taken without thought or reason or [is] irrational[]." Agrico

8024Chemical Co. v. Department of Environmental Regulation , 365 So.

80332d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical

8045Laboratory Personnel, v. Florida Association of Blood Banks , 721

8054So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is

8066one not supported by facts or logic. A 'capricious' action is

8077one taken irrationally, without thought or reason.") Action that

8087the Legislature specifically authorizes an agency to make is

8096neither arbitrary nor capricious.

810013/ The provisions of Section 120.58, Florida Statutes,

8108following subsection (e) were added in 1996. See Chapter 96-159,

8118Laws of Florida.

812114/ Section 120.536(1), Florida Statutes, provides as follows:

8129120.536 Rulemaking authority; listing of

8134rules exceeding authority; repeal;


8139(1) A grant of rulemaking authority is

8146necessary but not sufficient to allow an

8153agency to adopt a rule; a specific law to be

8163implemented is also required. An agency may

8170adopt only rules that implement, interpret,

8176or make specific the particular powers and

8183duties granted by the enabling statute. No

8190agency shall have authority to adopt a rule

8198only because it is reasonably related to the

8206purpose of the enabling legislation and is

8213not arbitrary and capricious, nor shall an

8220agency have the authority to implement

8226statutory provisions setting forth general

8231legislative intent or policy. Statutory

8236language granting rulemaking authority or

8241generally describing the powers and functions

8247of an agency shall be construed to extend no

8256further than the particular powers and duties

8263conferred by the same statute.

826815/ The "competencies which characterize high-performing

8274principals" referred to in subsection (3)(a) of Section 231.087,

8283Florida Statutes, are also mentioned in Section 286.0861(1),

8291Florida Statutes, and the Department of Education's Rule 6A-

83004.0083, Florida Administrative Code, which are among the

8308statutory and rule provisions cited by the School Board as the

"8319Law Implemented, Interpreted or Made Specific" in the current

8328version of the Rule. (Sections 231.02, 231.087(1), 231.29, and

8337236.0811, Florida Statutes, and Rule 6A-4.0084, Florida

8344Administrative Code, are the other provisions.) Section

8351286.0861(1), Florida Statutes, provides as follows:

8357The Legislature recognizes that the principal

8363is the administrative and instructional

8368leader of a public school. The Legislature

8375further recognizes that strong, competent

8380principals can improve our public schools.

8386For this reason, it is imperative that public

8394school principals be selected from those

8400candidates who have been evaluated and

8406certified as possessing the competencies

8411deemed necessary for success in the field.

8418Rule 6A-4.0083, Florida Administrative Code, provides as follows:

8426To be eligible to receive certification as a

8434school principal, an individual shall satisfy

8440each of the following requirements:

8445(1) Hold a valid professional certificate

8451covering educational leadership,

8454administration, or administration and


8459(2) Document successful performance of the

8465duties of the school principalship. These

8471duties shall be performed in an approved

8478district management training and development

8483program designed and implemented consistent

8488with the program described in the publication

8495titled, Preparing New Principals, 1985,

8500approved by the Florida Council on

8506Educational Management, which is hereby

8511incorporated and made a part of this rule. In

8520addition, these duties shall:

8524(a) Be performed as a full-time employee of

8532a district school board and assigned to

8539perform the duties of an assistant principal,

8546intern principal, or an interim principal for

8553a period of not less than one (1) full school

8563year which is ten (10) months or more in


8573(b) Be a formally planned professional

8579development program designed and implemented

8584to prepare the individual to become a school


8593(c) Be comprehensive of all the duties of

8601the school principalship.

8604(d) Be performed under the direct

8610supervision of a currently practicing school

8616principal or district manager who has been

8623approved by the district school board to

8630serve as the supervising principal or manager

8637for this program.

8640(3) Demonstrate successful performance of

8645the competencies of the school principalship

8651which shall be documented by the Florida

8658district school superintendent based on a

8664performance appraisal system approved by the

8670district school board and the Department.

8676The performance appraisal system shall be

8682consistent with Guidelines for District

8687Performance Appraisal Systems, January, 1985,

8692approved by the Florida Council on

8698Educational Management, which is hereby

8703incorporated and made a part of this rule. A

8712comprehensive performance appraisal system:

8716(a) Has clearly stated purposes.

8721(b) Promotes individual and organizational


8727(c) Is used for personnel decisions.

8733(d) Is fair, equitable and legally sound.

8740(e) Provides for negotiation of expectations

8746in relation to situations.

8750(f) Values appraisee input.

8754(g) Requires planning, feedback, and


8760(h) Has procedures for collection and

8766retrieval of data for decision making.

8772(i) Links rewards to performance.

8777(j) Establishes criteria for assessment.

8782(k) Provides training and orientation of


8789(4) An individual who holds a valid Florida

8797Educator's Certificate covering

8800administration or administration and

8804supervision issued prior to July 1, 1986 and

8812served as a school principal prior to July 1,

88211986 for not less than one (1) school year

8830may apply for certification as a school

8837principal under the provisions of

8842Rule 6A-4.0085, FAC.

8845(5) Only individuals who meet the

8851requirements for certification as a school

8857principal shall be appointed by a district

8864school board to the position of school

8871principal; however, when deemed by the school

8878board to be necessary and in the best

8886interests of the students of the school, an

8894individual who holds a certificate in

8900educational leadership, administration or

8904administration and supervision, including

8908experienced out-of-state principals as

8912provided by Section 231.0861(4), Florida

8917Statutes, may on the basis of objective

8924screening and appointment procedures as

8929provided in Section 231.0861, Florida

8934Statutes, be appointed as an interim

8940principal for a period not to exceed one (1)

8949year during which the individual must

8955successfully demonstrate performance of the

8960duties of the principalship as provided in

8967Rule 6A-4.0083(2), FAC.

8970(6) Individuals who do not meet the

8977requirements for certification as school

8982principal but who hold valid certificates

8988covering educational leadership,

8991administration, or administration and

8995supervision may, subject to the procedures

9001established by each district school board,

9007apply for vacancies of intern assistant

9013principal, assistant principal, intern

9017principal, interim principal, and other

9022positions for which this certification

9027coverage is valid.

9030(7) All principals, intern principals, and

9036assistant principals appointed by each

9041district school board shall be selected and

9048appointed using an objective- based process

9054which documents that the applicant possesses

9060the competencies necessary for successful

9065performance of the duties as required by

9072Section 231.0861, Florida Statutes. The

9077objective-based process for screening,

9081selection, and appointment shall be

9086consistent with Criteria for School District

9092Screening, Selection, and Appointment Process

9097for Principals and Assistant Principals,

9102September, 1984, approved by the Florida

9108Council on Educational Management, which is

9114hereby incorporated and made a part of this


912316/ The School Board has contested Petitioner's standing to

9132bring the instant rule challenge. Standing has been described as

"9142that sufficient interest in the outcome of litigation which will

9152warrant the [tribunal's] entertaining it." General Development

9159Corporation v. Kirk , 251 So. 2d 284, 286 (Fla. 2d DCA 1971). The

9172Florida Legislature has incorporated this notion of standing in

9181Section 120.56(3), Florida Statutes. Not everyone can challenge

9189the validity of an existing agency rule pursuant to this

9199statutory provision. Such a challenge may be initiated only by

9209those persons who are able to establish that they are

"9219substantially affected," which requires a showing of "(1) a real

9229and sufficiently immediate injury in fact [that is not based on

9240pure speculation or conjecture]; and (2) 'that the alleged

9249interest [injured] is arguably within the zone of interest to be

9260protected or regulated.'" Ward v. Board of Trustees of the

9270Internal Improvement Trust Fund , 651 So. 2d 1236, 1237 (Fla. 4th

9281DCA 1995). While the School Board's argument that Petitioner has

9291not made such a showing in the instant case is a persuasive one,

9304it is unnecessary to decide the point given the undersigned's

9314ruling on the merits of Petitioner's challenge.


9323Lucy Margolis

932510430 Southwest 99th Street

9329Miami, Florida 33176

9332Twila Hargrove-Payne, Esquire

9335Miami-Dade County School Board

93391450 Northeast Second Avenue, Suite 400

9345Miami, Florida 33132

9348Carroll Webb, Executive Director

9352and General Counsel

9355Joint Administrative Procedures Committee

9359Holland Building, Room 120

9363Tallahassee, Florida 32399-1300


9372A party who is adversely affected by this Final Order is

9383entitled to judicial review pursuant to Section 120.68, Florida

9392Statutes. Review proceedings are governed by the Florida rules

9401of Appellate Procedure. Such proceedings are commenced by filing

9410one copy of a notice of appeal with the Clerk of the

9422Division of Administrative Hearings and a second copy,

9430accompanied by filing fees prescribed by law, with the District

9440Court of Appeal, First District, or with the District Court of

9451Appeal in the Appellate District where the party resides. The

9461notice of appeal must be filed within 30 days of rendition of the

9474order to be reviewed.

Select the PDF icon to view the document.
Date: 06/02/1999
Proceedings: DOAH Final Order
Date: 06/02/1999
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 03/26/99.
Date: 05/21/1999
Proceedings: Respondent`s Proposed Final Order (for Judge Signature) (filed via facsimile).
Date: 05/17/1999
Proceedings: Petitioner Proposed Final Order (for Judge Signature) (filed via facsimile).
Date: 04/21/1999
Proceedings: Transcript filed.
Date: 03/31/1999
Proceedings: (T. Payne, L. Margolis) Pre-Hearing Stipulation (filed via facsimile).
Date: 03/26/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 03/26/1999
Proceedings: Additional Petitioner`s Exhibit #54 (filed via facsimile).
Date: 03/26/1999
Proceedings: (T. Payne, L. Margolis) Pre-Hearing Stipulation (filed via facsimile).
Date: 03/25/1999
Proceedings: Order sent out. (Motion for summary final Order denied)
Date: 03/23/1999
Proceedings: Filing of Petitioner`s Exhibits; Exhibits (filed via facsimile).
Date: 03/23/1999
Proceedings: (Respondent) Notice of Filing; Exhibits filed.
Date: 03/22/1999
Proceedings: Petitioner Response to Respondent`s Motion for Summary Final Order (filed via facsimile).
Date: 03/22/1999
Proceedings: (Respondent) Index to Documents Referenced in Respondent`s Motion for Summary Final Order filed.
Date: 03/19/1999
Proceedings: Respondent`s Motion for Summary Final Order (filed via facsimile).
Date: 03/18/1999
Proceedings: Respondent`s Answer to Second Interrogatories filed.
Date: 03/18/1999
Proceedings: Respondent`s Response to Petitioner`s Second and Third Request for Production filed.
Date: 03/04/1999
Proceedings: Petitioner`s Third Request for Production (Certificate of Service Only) (filed via facsimile).
Date: 02/23/1999
Proceedings: Notice of Service of Answers to Respondent`s First Interrogatories to Petitioner (filed via facsimile).
Date: 02/23/1999
Proceedings: Petitioner`s Response to Respondent`s Request for Production (filed via facsimile).
Date: 02/22/1999
Proceedings: (Respondent) Request for Production; Respondent`s First Interrogatories to Petitioner rec`d
Date: 02/22/1999
Proceedings: Petitioner`s Second Request for Production (Numbered 11 and 12) Certificate of Service only (filed via facsimile).
Date: 02/22/1999
Proceedings: Petitioner`s Second Interrogatories (filed via facsimile).
Date: 02/09/1999
Proceedings: Respondent`s Additional Answer to Interrogatories (filed via facsimile).
Date: 02/09/1999
Proceedings: Respondent`s Additional Discovery Responses (filed via facsimile).
Date: 02/08/1999
Proceedings: Order sent out. (ruling on Motions)
Date: 02/02/1999
Proceedings: (School Board) Motion for a Telephonic Hearing (filed via facsimile).
Date: 02/02/1999
Proceedings: (Respondent) Response to Petitioner`s Amended Motion for Order Compelling Discovery (filed via facsimile).
Date: 02/01/1999
Proceedings: Petitioner`s Amended Motion for Order Compelling Discovery (filed via facsimile).
Date: 01/29/1999
Proceedings: (Respondent) Notice of Service of Answers to Petitioner`s Amended Interrogatories (filed via facsimile).
Date: 01/27/1999
Proceedings: Order sent out. (Respondent to file response by 2/2/99 to Petitioner`s Motion for Order compelling Discovery)
Date: 01/26/1999
Proceedings: (Respondent) Motion for Extension of Time to Respond to Petitioner`s Motion for Order Compelling Discovery (filed via facsimile).
Date: 01/26/1999
Proceedings: Respondent`s Supplemental Responses to Petitioner`s Request for Admissions; Respondent`s Supplemental Response to Petitioner`s Request for Production (filed via facsimile).
Date: 12/29/1998
Proceedings: Order sent out. (re: ruling on compelling Discovery)
Date: 12/28/1998
Proceedings: Petitioner`s Amended Interrogatories; Certificate of Service; Letter to SML & T. Payne from L. Margolis Re: Motion for Order Compelling Discovery (filed via facsimile).
Date: 12/28/1998
Proceedings: Motion for Extension of Time to Respond to Petitioner`s Motion for Order Compelling Discovery (filed via facsimile).
Date: 12/28/1998
Proceedings: Petitioner`s Amended Interrogatories; Certificate of Service; Letter to SML & T. Payne from L. Margolis Re: Motion for Order Compelling Discovery (filed via facsimile).
Date: 12/18/1998
Proceedings: (Respondent) Notice of Unavailability (filed via facsimile).
Date: 12/14/1998
Proceedings: Order sent out. (re: resolving Discovery related matters)
Date: 12/14/1998
Proceedings: Petitioner`s Motion for Order Compelling Discovery (filed via facsimile).
Date: 12/01/1998
Proceedings: Second Notice of Hearing by Video Teleconference sent out. (Video Hearing set for 3/26/99; 9:15am; Miami & Tallahassee)
Date: 12/01/1998
Proceedings: (Respondent) Notice of Service of Answers to Petitioner`s Interrogatories (filed via facsimile).
Date: 11/30/1998
Proceedings: Respondent`s Response to Petitioner`s Request for Production (filed via facsimile).
Date: 11/30/1998
Proceedings: Respondent`s Response to Petitioner`s Request for Admissions (filed via facsimile).
Date: 11/25/1998
Proceedings: Order sent out. (request for telephonic hearing is denied; Motion to Strike is denied)
Date: 11/25/1998
Proceedings: Petitioner`s Answer to Respondent School Board`s Affirmative Defenses; Motion to Strike; and Motion for a Telephonic Hearing (filed via facsimile).
Date: 11/24/1998
Proceedings: Letter to Judge Lerner from L. Margolis (RE: request for new hearing date) (filed via facsimile).
Date: 11/24/1998
Proceedings: Respondent School Board`s Answer to Petition (filed via facsimile).
Date: 11/23/1998
Proceedings: Order sent out. (12/9/98 video hearing continued)
Date: 11/19/1998
Proceedings: Addendum to Petitioner`s Response in Opposition to Respondent`s Motion for Continuance of Final Hearing (filed via facsimile).
Date: 11/18/1998
Proceedings: (Respondent) Amended Motion for Continuance of Final Hearing (filed via facsimile).
Date: 11/18/1998
Proceedings: Petitioner`s Response in Opposition to Respondent`s Motion for Continuance of Final Hearing (filed via facsimile).
Date: 11/18/1998
Proceedings: Letter to Judge Lerner from L. Margolis (RE: Notice of unavailability) (filed via facsimile).
Date: 11/17/1998
Proceedings: (Respondent) Motion for a Telephonic Hearing (filed via facsimile).
Date: 11/17/1998
Proceedings: (Respondent) Motion for Continuance of Final Hearing (filed via facsimile).
Date: 11/17/1998
Proceedings: Prehearing Order sent out.
Date: 11/16/1998
Proceedings: Petitioner`s Motion for an Order for Accelerated Discovery (filed via facsimile).
Date: 11/16/1998
Proceedings: (Petitioner) 3/Certificate of Service (filed via facsimile).
Date: 11/12/1998
Proceedings: Notice of Hearing by Video Teleconference sent out. (Video Hearing set for 12/9/98; 9:15am; Miami & Tallahassee)
Date: 11/10/1998
Proceedings: Order of Assignment sent out.
Date: 11/04/1998
Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
Date: 11/02/1998
Proceedings: Petition (w/Exhibits 1-35); Cover Letter from L. Margolis (re: request for copies of DOAH`s rules) (filed via facsimile).

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida
County School Boards

Related DOAH Cases(s) (1):

Related Florida Statute(s) (9):

Related Florida Rule(s) (3):