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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCY MARGOLIS, )

)

Petitioner, )

)

vs. ) Case No. 98-4915RX

)

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Respondent. )

_________________________________)

FINAL ORDER

Pursuant to notice, a hearing was conducted in this case

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

1999, by video teleconference at sites in Fort Lauderdale and

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

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Lucy Margolis, pro se

10430 Southwest 99th Street

Miami, Florida 33176

For Respondent: Twila Hargrove-Payne, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

STATEMENT OF THE ISSUES

1. Whether the challenged portions of Respondent's Manual

of Administrative Personnel Procedures (MAPP), which is

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

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

references Section 231.29, Florida Statutes, and the following

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

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

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

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

invalid exercises of delegated legislative authority, within the

meaning of Chapter 120, Florida Statutes, for the reasons

asserted by Petitioner.

2. Whether Petitioner has standing, pursuant to Chapter

120, Florida Statutes, to challenge these provisions.

PRELIMINARY STATEMENT

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

Division of Administrative Hearings (Division) challenging the

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

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

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

parent representative member of the Educational Excellence

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

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

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

Judge assigned the case to the undersigned Administrative Law

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

Video Teleconference scheduling the final hearing in this case

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

motion requesting a continuance of the final hearing, and

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

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

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

the telephone conference call, Petitioner indicated that she did

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

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

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

Respondent's Amended Motion for Continuance was granted. The

final hearing was subsequently rescheduled for March 26, 1999.

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

Stipulation. In their Pre-Hearing Stipulation, the parties

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

remain to be litigated":

a) Petitioner's Position:

That Petitioner has standing to challenge the

Rule and MAPP.

That Respondent has materially failed to

follow the applicable APA rulemaking

procedures or requirements regarding

implementation, interpretation and/or making

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

MAPP since the words were incorporated

therein.

That certain principal competencies contained

in the MAPP exceed Respondent's grant of

rulemaking authority and/or enlarge, modify,

or contravene the specific provisions of the

law implemented.

That a portion of the MAPP which simply

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

to establish adequate standards for agency

decisions, and/or vests unbridled discretion

in the agency.

b) Respondent's Position:

Whether the challenged excerpts of MAPP are a

valid exercise of delegated legislative

authority.

Whether the School Board properly followed

rulemaking procedures when School Board Rule

6Gx13- 4D-1.022 and MAPP were amended in

November 5, 1997 and October 21, 1998.

Whether Petitioner has standing to challenge

the MAPP. . . .

In their Pre-Hearing Stipulation, the parties stated the

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

determination of the Administrative Law Judge":

a) Petitioner's Position:

Respondent's failure to properly comply with

all applicable APA rulemaking procedures

regarding implementation, interpretation

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

the Rule and MAPP should entitle Petitioner

(a) to have this portion of the Rule declared

an invalid exercise of delegated legislative

authority or (b) to challenge this portion of

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

That certain principal competencies contained

in the MAPP exceed Respondent's grant of

rulemaking authority and/or enlarge, modify

or contravene the specific provisions of law

implemented; and, as a result, that portion

of the MAPP should be declared an invalid

exercise of delegated legislative authority.

That the portion of the MAPP which

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

to establish adequate standards for agency

decisions, and/or vests unbridled discretion

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

of the MAPP should be declared an invalid

exercise of delegated legislative authority.

Petitioner has standing to challenge School

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

b) Respondent's Position:

Petitioner does not have standing to

challenge School Board Rule 6Gx13- 4D-1.022

and MAPP.

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

were properly amended on November 5, 1997 and

October 21, 1998.

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

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

Petitioner; Dr. Joyce Annunziata, Senior Executive Director of

Respondent's Office of Professional Standards; and Ileana

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

these three witnesses, numerous exhibits were offered and

received into evidence.

At the close of the evidentiary portion of the final hearing

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

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

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

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

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

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

proposed final order. The Transcript of the final hearing was

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

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

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

been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

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

following findings of fact are made:

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

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

free public schools within the school district of Miami-Dade

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

Florida Constitution, and Section 230.03, Florida Statutes.

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

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

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

Killian Senior High School (Killian). 3

3. Petitioner is currently serving as the parent

representative on the Educational Excellence Council at Killian.

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

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

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

research-based reports, attended countless School Board

meetings, 4 and testified at many public hearings."

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

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

these concerns known to School Board administrators and School

Board members.

6. Petitioner is challenging, as an invalid exercise of

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

Florida Statutes, language found in parts of the School Site

Administrator Performance Planning and Assessment System (PPAS),

which is contained in section C of the Manual of Administrative

Personnel Procedures (MAPP) and which, together with the

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

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

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

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

It provides as follows:

This section, effective with the 1998-1999

school year, sets forth the rules,

regulations and procedures for the

establishment, maintenance, and

administration of the performance planning

and assessment system applicable to school

site managerial personnel.

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

[p]olicy." It provides as follows:

The Miami-Dade County Public Schools

Performance Planning and Assessment System

was developed as an aid to improving the

performance and developing the potential of

every administrator. A performance plan

mutually developed by the administrator and

the supervisor consists of three major

components:

- Developing plans directly linked to

overall job functions as related to the job

duties and responsibilities, school site

target objectives, and/or major system

objectives, as applicable.

- Improving job performance by reviewing

past assessments and setting expectations for

improvement or enhancement.

- Developing personal potential through

emphasis on standards required for success

and professional growth in the present job,

as well as preparation for future career

goals.

In evaluating performance standards, the

emphasis is placed on collecting data which

indicate that the individual demonstrates or

practices the performance standards

established for the assigned position and the

school site target objectives. The

performance assessment procedures set forth

herein shall be adhered to strictly.

Administrators shall have their performance

evaluated by their immediate supervisor

(assessor) and their assessor's supervising

administrator (reviewer) only. Formal

assessments and evaluations placed in

administrator's official personnel files

shall be in compliance with the procedures

and instruments of the Performance Planning

and Assessment System.

Administrators being appraised need to be

aware of the rationale, intent and procedures

of the performance assessment system in

relation to their job assignment. Florida

Department of Education Performance

Assessment System guidelines:

- specify that a comprehensive performance

assessment system is fair, equitable, and

legally sound;

- establish procedures for the collection,

retrieval and use of data to provide feedback

to an individual, a team, and the system;

- provide data for recognizing high

performance through a variety of means;

- consider the specific conditions of the

site in establishing expectations;

- promote the growth and development of the

individual and the continuous improvement of

the organization;

- allocate time to plan, coach and counsel

for higher performance;

- provide orientation on the system and

skill development in observing, mentoring,

coaching and counseling for those in and

affected by the system.

Administrators who manage the performance

assessment system must have knowledge and

skills that go far beyond an academic

knowledge of the system. They must

understand and be able to respond to

evaluative data on the system. They must

also be able to link the performance

assessment system to the other components of

the Comprehensive Human Resources Development

System.

Pursuant to Florida Statute 231.29, the

system (district) must include a mechanism to

give parents and teachers an opportunity to

provide input into the administrators

performance assessment, when appropriate.

The district mechanisms include notification

to parents of this provision printed on

student report cards and notification to

teachers of this provision through memorandum

included in staff handbooks . [Underlining

added.]

Principals must ensure that all assistant

principals are exposed to and/or have

experience in the 19 Florida Principal

Competencies and the five M-DCPS Technical

Skills. There may be cases where an

assistant principal may not be assigned to

work with all of the competencies and all of

the technical skills. However, all assistant

principals must be exposed to these

competencies and technical skills either

through actual experience(s), or attendance

at district sponsored workshops, or other

professional growth activities.

9. Petitioner is challenging the underlined language of

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

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

about November 7, 1997.

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

the School Board published a Notice of Intended Action (dated

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

PURPOSE AND EFFECT: To amend Board Rule

6Gx13- 4D-1.022 , Manual of Administrative

Personnel Procedures, by revising the

document, Manual of Administrative Personnel

Procedures (MAPP) , which is incorporated by

reference and is part of this rule, in order

to be in compliance with new state

legislation, Section 231.29 . . ., Florida

Statute[s].

SUMMARY: The revised rule provides language

describing the mechanism to be used in the

District for giving parents and teachers

input into administrative assessment as

appropriate. . . .

SPECIFIC AUTHORITY UNDER WHICH RULEMAKING IS

AUTHORIZED: 230.22(2), F.S.

LAW IMPLEMENTED, INTERPRETED, OR MADE

SPECIFIC: 231.02; 231.0861; 231.087(1);

236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC.

In addition, the School Board placed an advertisement in the

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

which read, in pertinent part, as follows:

NOTICE

The School Board of Dade County, Florida,

announces the following Board Rule action

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

November 5, 1997

School Board Auditorium

1450 N. E. Second Avenue

Miami, Florida 33132

To Amend:

6Gx13- 4D-1.022 , Manual of Administrative

Personnel Procedures (MAPP), in order to be

in compliance with new state legislation,

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

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

Law Implemented, Interpreted, or Made

Specific: 231.02; 231.0861; 231.087(1);

236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC

11. Although Section 231.29, Florida Statutes, was

mentioned in the Input Provision, neither the "Specific

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

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

the Rule contained any reference to Section 231.29, Florida

Statutes.

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

1998, School Board meeting (the last School Board meeting at

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

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

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

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

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

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

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

follows:

CORRECTION OF CERTAIN ERRORS IN RULES

The Superintendent of Schools, as Secretary

to the Board, shall have the authority to

review the School Board Rules and when judged

useful shall:

1. Correct grammatical, typographical, and

like errors not affecting the construction or

meaning of the rules;

2. Keep a record of corrections made

pursuant to subsection 1; and

3. Report to the Board any corrections made.

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

of the School Board Attorney.

13. The English version of the "notification to

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

referred to in the Input Provision, reads as follows:

FLORIDA LAW PROVIDES FOR PARENT INPUT ON

TEACHER/ADMINISTRATOR PERFORMANCE, WHEN

APPROPRIATE. FOR MORE INFORMATION, CONTACT

THE SCHOOL, PRINCIPAL, OR THE REGION OFFICE.

14. By providing such notification, the School Board alerts

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

the parent deems appropriate) information and opinion regarding

an administrator's performance for consideration by those

(specially-trained individuals) charged with the responsibility

of evaluating the administrator's performance.

15. The significance of the "19 Florida Principal

Competencies" referred to in the paragraph immediately following

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

which reads as follows:

PERFORMANCE CRITERIA

In order to qualify for a rating

Distinguished Performance Standards on the

annual evaluation form, assessees must be

rated Distinguished Performance Standards on

18 out of the 19 Florida Principal

Competencies and rated as Distinguished

Performance Standards on five out of the five

M-DCPS Technical Skills, and on Performance

Related to Job Targets.

In order to qualify for a rating Commendable

Performance Standards, assessees must be

rated as Commendable Performance Standards on

17 out of the 19 Florida Principal

Competencies and rated as Commendable

Performance Standards on four out of the five

M-DCPS Technical Skills. Performance Related

to Job Targets must be at least 90%

accomplished (C-8 through C-11).

In order to qualify for a rating Competent

Performance Standards, assessees must be

rated as Competent Performance Standards on

16 out of the 19 Florida Principal

Competencies and rated as Competent

Performance Standards on three out of the

five M-DCPS Technical Skills. Performance

Related to Job Targets must be at least 80%

accomplished (C-8 through C-11).

Assessees not exhibiting the minimum number

of indicators listed for each standard of the

19 Florida Principal Competencies and/or the

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

not met their Performance Related to Job

Targets will receive an overall rating of

Below Expectations on Performance Standards

and will require a Professional Improvement

Plan (C-8 through C-11).

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

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

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

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

TACTICAL ADAPTABILITY is the ability to adapt

one's interaction and behavior to fit the

situation. (3 out of 4)

DIMENSIONS: ADAPTABILITY: Maintaining

effectiveness in varying environments, tasks,

responsibilities or with people; FLEXIBILITY:

Modifying behavior to reach a goal;

INDIVIDUAL LEADERSHIP: Utilizing appropriate

interpersonal styles to guide individuals to

task accomplishment.

The principal who has TACTICAL ADAPTABILITY:

11.1 adopts roles of listener, facilitator

and confronter as needed

11.2 finds ways to get around policies and

procedures which interfere with the school's

goals

11.3 looks at problems as if there are no

rules, then decides what to do to resolve the

situation tactfully

11.4 understands how own behavior affects

others and makes appropriate adjustments.

17. Except for the language in numbered paragraph 11.2,

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

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

other language agreeable to Petitioner 6 ), the foregoing,

including the language in numbered paragraph 11.3 (Paragraph

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

Petitioner disputes, is a verbatim recital of language contained

in the Florida Principal Competencies section of the Human

Resources Management and Development System Guidelines in

Florida's School Districts developed, after study and scientific

research, by the Florida Council on Educational Management.

CONCLUSIONS OF LAW

18. In the instant case, Petitioner is challenging the

Input Provision and Paragraph 11.3 (which have been incorporated

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

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

(1) General procedures for challenging the

validity of a rule . . . .--

(a) Any person substantially affected by a

rule . . . may seek an administrative

determination of the invalidity of the rule

on the ground that the rule is an invalid

exercise of delegated legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisions alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show that the person

challenging a rule is substantially affected

by it . . . .

(c) The petition shall be filed with the

division which shall, immediately upon

filing, forward copies to the agency whose

rule is challenged, the Department of State,

and the committee. Within 10 days after

receiving the petition, the division director

shall, if the petition complies with the

requirements of paragraph (b), assign an

administrative law judge who shall conduct a

hearing within 30 days thereafter, unless the

petition is withdrawn or a continuance is

granted by agreement of the parties or for

good cause shown. . . . The failure of an

agency to follow the applicable rulemaking

procedures or requirements set forth in this

chapter shall be presumed to be material;

however, the agency may rebut this

presumption by showing that the substantial

interests of the petitioner and the fairness

of the proceedings have not been impaired.

(d) Within 30 days after the hearing, the

administrative law judge shall render a

decision and state the reasons therefor in

writing. The division shall forthwith

transmit copies of the administrative law

judge's decision to the agency, the

Department of State, and the committee.

(e) Hearings held under this section shall

be conducted in the same manner as provided

by ss. 120.569 and 120.57, except that the

administrative law judge's order shall be

final agency action. The petitioner and the

agency whose rule is challenged shall be

adverse parties. Other substantially

affected persons may join the proceedings as

intervenors on appropriate terms which shall

not unduly delay the proceedings. Failure to

proceed under this section shall not

constitute failure to exhaust administrative

remedies. . . .

(3) Challenging existing rules; special

provisions.--

(a) A substantially affected person may seek

an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule.

(b) The administrative law judge may declare

all or part of a rule invalid. The rule or

part thereof declared invalid shall become

void when the time for filing an appeal

expires. The agency whose rule has been

declared invalid in whole or part shall give

notice of the decision in the Florida

Administrative Weekly in the first available

issue after the rule has become void.

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

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

on the party asserting the affirmative of an issue before an

administrative tribunal.'" Florida Department of Transportation

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

also Department of Banking and Finance v. Osborne Stern and

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

party asserting the affirmative of an issue has the burden of

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

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

Petitioner, challenging an existing rule has the burden of

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

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

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

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

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

capriciousness carries the burden of demonstrating by a

preponderance of the evidence that the rule is not supported by

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

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

20. An existing rule may be challenged pursuant to Section

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

"invalid exercise of delegated legislative authority," as defined

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

follows:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(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 9

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

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

adequate standards for agency decisions, or 11

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious; 12

(f) The rule is not supported by competent

substantial evidence; or

(g) The rule imposes regulatory costs on the

regulated person, county, or city which could

be reduced by the adoption of less costly

alternatives that substantially accomplish

the statutory objectives

A grant of rulemaking authority is necessary

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, interpret,

or make specific the particular powers and

duties granted by the enabling statute. No

agency shall have authority to adopt a rule

only because it is reasonably related to the

purpose of the enabling legislation and is

not arbitrary and capricious, nor shall an

agency have the authority to implement

statutory 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 the particular powers and duties 13

conferred by the same statute.

The Administrative Law Judge assigned to hear the challenge may

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

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

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

St. Johns River Water Management District v. Consolidated Tomoka

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

finding of invalidity on circumstances not specifically mentioned

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

extension of the Administrative Law Judge's authority beyond the

boundaries established by the Legislature. See Moonlit Waters

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

principle of statutory construction, expressio unius est exclusio

alterius , the mention of one thing implies the exclusion of

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

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

bodies created by the Legislature are not constitutional bodies,

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

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

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

those that are conferred expressly or impliedly by statute of the

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

a particular power that is being exercised by the Commission must

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

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

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

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

that the powers of administrative agencies are measured and

limited by the statutes or acts in which such powers are

expressly granted or implicitly conferred, . . . the appellants

correctly argue that the final order must be reversed because the

department acted without authority and contrary to legislative

intent when it required security in excess of the annual fund

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

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

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

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

Schiffman v. Department of Professional Regulation, Board of

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

administrative agency has only the authority that the legislature

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

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

1991)("We are of the view that if it was DOAH's intent in

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

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

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

express or reasonably implied delegated legislative authority.

It is well recognized that the powers of administrative agencies

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

powers are expressly granted or implicitly conferred.").

21. In the instant case, Petitioner objects to the

challenged portions of the Rule on substantive and procedural

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

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

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

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

declared an invalid exercise of delegated legislative authority."

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

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

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

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

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

overrule earlier Florida decisions to the extent that they had

held a rule was a valid exercise of delegated legislative

authority if it was reasonably related to the enabling statute

and not arbitrary or capricious." Department of Business and

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

100, 101-02 (Fla. 1st DCA 1998).

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

to determine whether a rule is a valid exercise of delegated

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

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

the applicable statute. The question is whether the rule falls

within the range of powers the Legislature has granted to the

agency for the purpose of enforcing or implementing the statutes

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

legislative authority if it regulates a matter directly within

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

implemented. This approach meets the legislative goal of

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

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

to perform the essential functions assigned to them by the

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

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

1998); see also Department of Business and Professional

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

1st DCA 1998)("We reiterate that the term 'particular powers and

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

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

whether the rule 'falls within the range of powers the

Legislature has granted to the agency for the purpose of

enforcing or implementing the statutes within its

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

Clinical Laboratory Personnel v. Florida Coalition of

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

1st DCA 1998)("In our opinion, the primary means for examining

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

whether the contested rule falls within the 'particular powers

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

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

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

Board's statutory authority.

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

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

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

matters. Subsection (18) of the statute authorizes district

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

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

specific grant of authority to district school boards to adopt

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

230.23005(11), Florida Statutes, which provides that a "school

board may adopt policies and procedures necessary for the

management of all personnel of the school system."

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

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

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

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

assessing the performance of duties and responsibilities of

all . . . administrative, and supervisory personnel employed by

the school district." Petitioner does not contest the School

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

performance assessment system, which identifies standards upon

which these administrators will be evaluated. Rather, it appears

that she objects specifically to Paragraph 11.3 because she does

not believe that it is appropriate for a principal to be

rewarded, in terms of receiving a favorable assessment, for

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

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

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

conclusion that the School Board's decision to include Paragraph

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

inappropriate or unlawful. To the contrary, the record

affirmatively reveals that such action on the part of the School

Board constituted a reasonable and valid exercise of authority

that it has been delegated by the Legislature.

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

Florida Principal Competencies section of the Human Resources

Management and Development System Guidelines in Florida's School

Districts (HRMDS Guidelines) developed, after study and

scientific research, by the Florida Council on Educational

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

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

follows:

(1) Intent.--The Legislature recognizes that

quality education in the public schools of

this state requires excellence in its

principals and other managers. Efficient and

effective management of schools to meet the

needs of students in today's society requires

a unique blend of skills, experience, and

academic background which is rarely provided

through typical baccalaureate or graduate

programs in education. The purpose of this

section is to provide for a state, regional,

and district support system for excellence in

principals and other educational managers.

This support system shall include the

identification of those competencies basic to

effective management of schools;

a performance-based management training

program; a program of competency-based

certification for school managers, to become

effective July 1, 1986; a performance-based

evaluation and compensation program for

educational managers; and a research and

service center for principals and other

educational managers. It is further intended

that this section encourage career

development, inservice training, and skills

enhancement for present and potential

education managers.

(2) Florida council on educational

management.--

(a) There is created the Florida Council on

Educational Management, to consist of 17

members appointed by the Governor, President

of the Senate, and Speaker of the House of

Representatives after consultation with the

appropriate professional associations,

including representatives of the private-

sector management community.

1. The Governor, President of the Senate,

and Speaker of the House of Representatives

shall each appoint two members from the

principals of the district school systems of

the state.

2. The Governor, President of the Senate,

and Speaker of the House of Representatives

shall each appoint one member from the

faculties of the institutions of higher

learning in the state which offer programs in

business administration, educational

management, or social sciences.

3. The Governor, President of the Senate,

and Speaker of the House of Representatives

shall each appoint one member from the

private-sector management community.

4. The Governor shall appoint one member

each from the following categories:

a. Elected school superintendent.

b. Appointed school superintendent.

c. District school board member.

d. District school personnel engaged in

management training.

e. Department of Education personnel with

systemwide management responsibilities.

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

years, and terms shall be staggered. Each

member shall be entitled to receive per diem

and expenses for travel as provided in s.

112.061 while carrying out official business

of the council. The members shall elect

annually a chair and such other officers as

may be necessary. A vacancy shall be filled

in the same manner as the original

appointment and shall be filled for the

remainder of the term.

(c) The council shall be assigned to the

Department of Education for administrative

purposes.

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

have the following duties:

(a) To identify those competencies which

characterize high-performing principals and

other managers in the public schools of this 15

state.

(b) To validate through scientific research

the identified competencies.

(c) To identify standards and procedures for

measuring and evaluating performance of the

identified competencies.

(d) To identify the training processes

required for school managers to acquire the

identified competencies and to develop

training materials which cannot be obtained

from existing sources.

(e) To identify the procedures necessary to

develop and implement a program of competency

certification for school managers.

(f) To develop the policies and procedures

necessary to adopt and implement a

compensation program for school managers

which is based on successful performance of

the identified competencies.

(g) To identify criteria for the screening,

selection, and appointment of school

managers.

(h) To develop and approve guidelines for

the approval of school district training

programs used for the certification of

principals.

(i) To establish an educational management

and development network to facilitate

communication, involvement, and mutual

assistance among the educational managers.

(j) To serve as the Board of Directors of

the Florida Academy for School Leaders.

(k) To report no later than September 1 of

each year for the previous fiscal year to the

Commissioner of Education, the Governor, the

President of the Senate, the Speaker of the

House of Representatives, and the chairs of

the Senate and House of Representatives

committees on public school education on the

expenditures, activities, and accomplishments

of the council, the academy, and the Center

for Interdisciplinary Advanced Graduate

Study. Such report shall also include a

statement of the objectives and overall

program for the coming year, the recommended

level of funding for the overall program for

that year, and any other recommendations

deemed by the council to be appropriate.

(l) To perform such additional studies and

activities as are necessary to achieve the

purpose of this act.

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

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

procedures for measuring and evaluating performance of the

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

which characterize high-performing principals" is consistent

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

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

the range of powers granted to the School Board by the

Legislature.

28. Contrary to the argument advanced by Petitioner, there

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

language in Paragraph 11.3 may be invalidated pursuant to Chapter

120, Florida Statutes.

29. With respect to the Input Provision, Petitioner

contends that it should be "declared an invalid exercise of

delegated legislative authority" because it fails to properly

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

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

for agency decisions and/or vests unbridled discretion in the

agency."

30. The first sentence of the Input Provision simply states

that Section 231.29, Florida Statutes, requires the School Board

to develop a "mechanism to give parents and teachers an

opportunity to provide input into the administrators performance

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

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

the statutory provision it discusses. The second sentence of the

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

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

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

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

School Board could have selected to comply with the requirement

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

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

interpretation is codified in the Input Provision) is a

reasonable one and does not constitute an "invalid exercise of

delegated legislative authority," as defined in Section

120.52(8), Florida Statutes. See Orange Park Kennel Club v.

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

574, 576 (Fla. 1st DCA 1994)("An agency's construction of a

statute which it administers is entitled to great weight and will

not be overturned unless the agency's interpretation is clearly

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

possible interpretation or even the most desirable one; it need

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

31. Petitioner also contends that the School Board failed

to follow the required rulemaking procedures when it amended the

Rule to include the Input Provision. Among the procedural

rulemaking requirements set forth in Chapter 120, Florida

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

there has been "an invalid exercise of delegated legislative

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

120.52, Florida Statutes, are those notice requirements found in

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

provides, in pertinent part, as follows:

(3) ADOPTION PROCEDURES.-

(a) Notices.-

1. Prior to the adoption, amendment, or

repeal of any rule other than an emergency

rule, an agency, upon approval of the agency

head, shall give notice of its intended

action, setting forth a short, plain

explanation of the purpose and effect of the

proposed action; the full text of the

proposed rule or amendment and a summary

thereof; a reference to the specific

rulemaking authority pursuant to which the

rule is adopted; and a reference to the

section or subsection of the Florida Statutes

or the Laws of Florida being implemented,

interpreted, or made specific. . . .

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

gave written notice of its intended action. Although neither the

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

Made Specific" portions of the notice contained any reference to

Section 231.29, Florida Statutes, elsewhere in the notice the

School Board clearly conveyed that the addition of the Input

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

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

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

reference to Section 231.29, Florida Statutes, in either the

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

Specific" portions of the notice was a violation of the

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

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

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

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

warrant invalidation of the Input Provision.

32. Inasmuch as Petitioner has failed to show that the

portions of the Rule she is challenging constitute "invalid

exercises of delegated legislative authority," within the meaning

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

petition challenging these portions of the Rule is hereby

DISMISSED. 16

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

Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9 675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 1999.

ENDNOTES

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

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

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

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

parties, however, resolved their dispute concerning this

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

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

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

to overcome barriers that impede school progress.".

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

accepted the parties' statement, in their Pre-Hearing

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

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

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

to a matter upon which is appropriate to stipulate is binding

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

663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of

encouraging stipulations to minimize litigation and expedite

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

stipulations should be enforced if entered into with good faith

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

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

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

1994)("Unless grounds for recission or withdrawal are shown, the

trial court is bound to strictly enforce the agreement between

the parties.").

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

4/ Petitioner attends approximately 90 percent of the School

Board's meetings and frequently addresses School Board members

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

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

6/ See footnote 1 above.

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

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

the statute does not contain any language suggesting that the

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

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

Care Administration, Board of Clinical Laboratory Personnel v.

Florida Coalition of Professional Laboratory Organizations, Inc. ,

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

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

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

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

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

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

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

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

the burden of establishing a factual basis for the objections to

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

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

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

Statutes ("The petition shall state with particularity the

objections to the proposed rule and the reasons that the proposed

rule is an invalid exercise of delegated legislative authority.

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

not an invalid exercise of delegated legislative authority as to

the objections raised.").

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

exercise of delegated legislative authority" was added to Chapter

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

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

1363, 1367 (Fla. 1st DCA 1992). See Chapter 87-385, Section 2,

Laws of Florida.

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

statute is not an "invalid exercise of delegated legislative

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

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

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

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

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

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

not exceed the statutory authorization or enlarge, modify or

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

having substantial interest in an agency rule" who wants the

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

paraphrase statutory language can file a petition to initiate

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

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

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

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

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

Petersburg v. Pinellas County Policy Benevolent Association , 414

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

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

regulatory statute is in need of construction in its

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

exercises such discretion, or which fails to extinguish the

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

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

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

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

285825)(Fla. 1st DCA May 10, 1999)("A rule which 'fails to

establish adequate standards for agency decisions, or vests

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

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

simply because 'governing statutes, not the challenged rule,

confer ... discretion.'").

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

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

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

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

2d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical

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

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

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

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

the Legislature specifically authorizes an agency to make is

neither arbitrary nor capricious.

13/ The provisions of Section 120.58, Florida Statutes,

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

Laws of Florida.

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

120.536 Rulemaking authority; listing of

rules exceeding authority; repeal;

challenge.-

(1) A grant of rulemaking authority is

necessary 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, interpret,

or make specific the particular powers and

duties granted by the enabling statute. No

agency shall have authority to adopt a rule

only because it is reasonably related to the

purpose of the enabling legislation and is

not arbitrary and capricious, nor shall an

agency have the authority to implement

statutory 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 the particular powers and duties

conferred by the same statute.

15/ The "competencies which characterize high-performing

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

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

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

4.0083, Florida Administrative Code, which are among the

statutory and rule provisions cited by the School Board as the

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

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

236.0811, Florida Statutes, and Rule 6A-4.0084, Florida

Administrative Code, are the other provisions.) Section

286.0861(1), Florida Statutes, provides as follows:

The Legislature recognizes that the principal

is the administrative and instructional

leader of a public school. The Legislature

further recognizes that strong, competent

principals can improve our public schools.

For this reason, it is imperative that public

school principals be selected from those

candidates who have been evaluated and

certified as possessing the competencies

deemed necessary for success in the field.

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

To be eligible to receive certification as a

school principal, an individual shall satisfy

each of the following requirements:

(1) Hold a valid professional certificate

covering educational leadership,

administration, or administration and

supervision.

(2) Document successful performance of the

duties of the school principalship. These

duties shall be performed in an approved

district management training and development

program designed and implemented consistent

with the program described in the publication

titled, Preparing New Principals, 1985,

approved by the Florida Council on

Educational Management, which is hereby

incorporated and made a part of this rule. In

addition, these duties shall:

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

a district school board and assigned to

perform the duties of an assistant principal,

intern principal, or an interim principal for

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

year which is ten (10) months or more in

length.

(b) Be a formally planned professional

development program designed and implemented

to prepare the individual to become a school

principal.

(c) Be comprehensive of all the duties of

the school principalship.

(d) Be performed under the direct

supervision of a currently practicing school

principal or district manager who has been

approved by the district school board to

serve as the supervising principal or manager

for this program.

(3) Demonstrate successful performance of

the competencies of the school principalship

which shall be documented by the Florida

district school superintendent based on a

performance appraisal system approved by the

district school board and the Department.

The performance appraisal system shall be

consistent with Guidelines for District

Performance Appraisal Systems, January, 1985,

approved by the Florida Council on

Educational Management, which is hereby

incorporated and made a part of this rule. A

comprehensive performance appraisal system:

(a) Has clearly stated purposes.

(b) Promotes individual and organizational

growth.

(c) Is used for personnel decisions.

(d) Is fair, equitable and legally sound.

(e) Provides for negotiation of expectations

in relation to situations.

(f) Values appraisee input.

(g) Requires planning, feedback, and

coaching.

(h) Has procedures for collection and

retrieval of data for decision making.

(i) Links rewards to performance.

(j) Establishes criteria for assessment.

(k) Provides training and orientation of

participants.

(4) An individual who holds a valid Florida

Educator's Certificate covering

administration or administration and

supervision issued prior to July 1, 1986 and

served as a school principal prior to July 1,

1986 for not less than one (1) school year

may apply for certification as a school

principal under the provisions of

Rule 6A-4.0085, FAC.

(5) Only individuals who meet the

requirements for certification as a school

principal shall be appointed by a district

school board to the position of school

principal; however, when deemed by the school

board to be necessary and in the best

interests of the students of the school, an

individual who holds a certificate in

educational leadership, administration or

administration and supervision, including

experienced out-of-state principals as

provided by Section 231.0861(4), Florida

Statutes, may on the basis of objective

screening and appointment procedures as

provided in Section 231.0861, Florida

Statutes, be appointed as an interim

principal for a period not to exceed one (1)

year during which the individual must

successfully demonstrate performance of the

duties of the principalship as provided in

Rule 6A-4.0083(2), FAC.

(6) Individuals who do not meet the

requirements for certification as school

principal but who hold valid certificates

covering educational leadership,

administration, or administration and

supervision may, subject to the procedures

established by each district school board,

apply for vacancies of intern assistant

principal, assistant principal, intern

principal, interim principal, and other

positions for which this certification

coverage is valid.

(7) All principals, intern principals, and

assistant principals appointed by each

district school board shall be selected and

appointed using an objective- based process

which documents that the applicant possesses

the competencies necessary for successful

performance of the duties as required by

Section 231.0861, Florida Statutes. The

objective-based process for screening,

selection, and appointment shall be

consistent with Criteria for School District

Screening, Selection, and Appointment Process

for Principals and Assistant Principals,

September, 1984, approved by the Florida

Council on Educational Management, which is

hereby incorporated and made a part of this

rule.

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

bring the instant rule challenge. Standing has been described as

"that sufficient interest in the outcome of litigation which will

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

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

Florida Legislature has incorporated this notion of standing in

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

the validity of an existing agency rule pursuant to this

statutory provision. Such a challenge may be initiated only by

those persons who are able to establish that they are

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

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

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

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

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

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

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

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

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

ruling on the merits of Petitioner's challenge.

COPIES FURNISHED:

Lucy Margolis

10430 Southwest 99th Street

Miami, Florida 33176

Twila Hargrove-Payne, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Carroll Webb, Executive Director

and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

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

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

Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

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

Appeal in the Appellate District where the party resides. The

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

order to be reviewed.