05-000160RU Citrus Oaks Homeowners Association, Inc. And Joy Hutchison, As Parent, Legal Guardian And Next Friend Of Jamie Petrov, A Minor And Krista Petrov, A Minor vs. Orange County School Board Status: Closed DOAH Final Order on Monday, December 19, 2005.

Summary: A portion of the challenged rule that Respondent developed and adopted, in relevant part, through private rule development workshops is invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITRUS OAKS HOMEOWNERS )

ASSOCIATION, INC., AND JOY )

HUTCHISON, as parent, legal )

guardian and next friend of )

JAMIE PETROV, a minor and )

KRISTA PETROV, a minor, )

)

Petitioners, )

)

vs. ) Case No. 05 - 0160RU

)

ORANGE COUNTY SCHOO L BOARD, )

)

Respondent. )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on March 16, 17, and 18,

2005 , in Orlando, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: James A. Gustino, Esquire

James A. Gustino, P.A.

341 North Maitland Avenue, Suite 340

Ma itland, Florida 32751

For Respondent: Andrew B. Thomas, Esquire

1625 Lakeside Drive

Deland, Florida 32720 - 3037

E. Gary Early, Esquire

Messer, Caparello & Self, P.A.

215 South Monroe Street, Suite 701

Post Office Box 1876

Tallahassee, Florida 32302 - 1876

STATEMENT OF THE ISSUE

The issue presented is whether a rule establishing high

school attendance zones is an invalid exercise of delegated

legislative authority within the meaning of Subsection

120.52(8), Florida Statutes (2004).

PRELIMINARY STATEMENT

On January 21, 2005, Petitioners filed a petition with DOAH

seeking a determination of the invalidity of a rule pursuant to

Subsec tions 120.56(1) and (3), Florida Statutes (2004). The ALJ

scheduled the administrative hearing for February 14, 2005, in

Tallahassee, Florida. The parties waived the statutory

requirement for a hearing within 30 days of the filing of the

petition; reques ted a change of venue to Orlando, Florida; and

requested a three - day hearing. After several agreed

continuances, the ALJ scheduled the hearing for March 16

through 18, 2005, in Orlando, Florida.

At the hearing, Petitioners presented the testimony of

seven witnesses, the deposition testimony of one expert witness,

and submitted 34 exhibits for admission into evidence.

Respondent presented the testimony of one witness and submitted

14 exhibits for admission into evidence. 1

The identity of the witnesses an d exhibits and the rulings

regarding each are reported in the four - volume Transcript of the

hearing filed with DOAH on June 9, 2005. Pursuant to the

agreement of the parties, the time for filing proposed final

orders (PFOs) was extended to June 28, 2005. Petitioners and

Respondent timely filed their respective PFOs on June 23

and 27, 2005.

FINDINGS OF FACT

1. Respondent is the School Board of Orange County,

Florida (School Board). The School Board is an educational unit

and an agency defined in Subse ctions 120.52(1)(b)7. and (6),

Florida Statutes (2004).

2. Respondent is the governing body of the Orange County

School District (School District or District). In relevant

part, Respondent has exclusive constitutional authority to

"operate, control and supervise all free public schools" within

the District pursuant to Article IX, Section 4(b) of the Florida

Constitution (2004) (Florida Constitution).

3. On January 11, 2005, Respondent adopted a rule

establishing attendance zones for four high schools in western

Orange County, Florida (Orange County). The rule modifies

previously existing attendance zones for Apopka High School

(Apopka), Olympia High School (Olympia), and West Orange High

School (West Orange); and establishes a new attendance zone for

Ocoee High School (the relief school).

4. It is undisputed that the establishment and

modification of school attendance zones involves rulemaking.

The parties agree that the adoption of the relevant school

attendance zones satisfies the definition of a rule in

Subsection 120.52(15), Florida Statutes (2004).

5. Petitioners challenge the rule as an invalid

exercise of delegated legislative authority defined in

Subsection 120.52(8), Florida Statutes (2004). In relevant

part, Petitioners allege that Res pondent violated Subsections

120.52(8)(a) and (e), Florida Statutes (2004), by materially

failing to follow applicable rulemaking requirements and by

adopting a rule in an arbitrary and capricious manner.

6. Before proceeding to the merits of the rule c hallenge,

it is important from a jurisdictional and contextual perspective

to note that this Final Order does not reach any matter that

falls within the scope of Respondent's exercise of

constitutional authority. For reasons discussed in the

Conclusions o f Law, Respondent has exclusive constitutional

authority to operate, control, and supervise public schools

within the District (local control). The L egislature has

constitutional authority over matters of statewide concern. 2

7. The L egislature cannot s tatutorily delegate authority

that is constitutionally vested in Respondent. 3 For purposes of

the rule challenge, the exercise of constitutional authority by

Respondent is not the exercise of delegated legislative

authority within the meaning of Subsectio ns 120.56(1) and (3),

Florida Statutes (2004).

8. As a factual matter, the challenged rule involves local

control of only those public schools within the District that

are affected by the rule. The school attendance zones do not

have application beyond t he boundaries of the School District.

The school attendance zones do not benefit or otherwise affect

citizens of the state outside the District. 4

9. The trier of fact has avoided findings concerning

matters of local control, including the merits of the school

attendance zones, the wisdom of the collective decision of the

School Board, and the motives and intent of the individual

members of the School Board. Jurisdiction to determine the

invalidity of a rule involving matters of local control is the

exc lusive province of the courts. 5

10. Legislative authority over matters of statewide

concern includes the authority to ensure that local school

attendance zones are drawn in a manner that complies with

uniform requirements for fairness and procedural correctness.

The L egislature delegated that authority to Respondent when it

enacted Subsections 1001.41(6) and 1001.42(4)(a), Florida

Statutes (2004). The trier of fact has made only those findings

needed to determine whether the exercise of delegated

le gislative authority is invalid within the meaning of

Subsections 120.52(8) and 120.56(1), Florida Statutes (2004).

11. The challenged rule affects the substantial interests

of Petitioners within the meaning of Subsections 120.56(1)

and (3), Florida Sta tutes (2004). Petitioner, Citrus Oaks

Homeowners Association, Inc. (Citrus Oaks), is a Florida

nonprofit corporation, organized as a homeowners ' association

pursuant to Chapters 617 and 720, Florida Statutes (2004) . The

members of Citrus Oaks own residen ces in the Citrus Oaks

subdivision.

12. A substantial number of the members of Citrus Oaks are

substantially affected by the challenged rule. A substantial

number of members have children who are students in a public

school affected by the challenged r ule. The challenged rule

reassigns many of those students from the Olympia school zone to

the West Orange school zone.

13. The subject matter of the rule is within the general

scope of interest and activity of Citrus Oaks. The relief

requested is of a t ype that is appropriate for Citrus Oaks to

receive on behalf of its members.

14. Citrus Oaks has represented its members in previous

litigation, although this is the first administrative proceeding

for Citrus Oaks. More than a substantial majority of t he

members of Citrus Oaks expressly authorized Citrus Oaks to

undertake this proceeding for their benefit.

15. Petitioner, Joy Hutchison, is the mother of Jamie

Petkov and Kirsta Petkov. Mrs. Hutchinson and her children

reside in Citrus Oaks in a neighbo rhood identified in the record

as Gotha, Florida. At the time of the administrative hearing,

Jamie Petkov and Kirsta Petkov attended Gotha Middle School

(Gotha).

16. Jamie Petkov and Kirsta Petkov would have attended

Olympia in the absence of the chall enged rule. The challenged

rule changes the attendance zone of each student to West Orange.

17. The challenged rule splits feeder patterns intended to

ensure that students in adjacent neighborhoods stay together

through progressive grades. The challenge d rule assigns some

students from Gotha to the Olympia school zone and assigns other

Gotha students to the West Orange school zone.

18. Differences in West Orange and Olympia do not affect

the substantial interests of Petitioners. The two schools offer

comparable, but not identical, educational programs. Each

school is accredited by the Southern Association of

Accreditation. Each is a comprehensive high school with a full

range of academic opportunities for students and Advanced

Placement (AP) classes for college credit. Each school offers

comparable student - teacher ratios, teachers with advanced

degrees, and extracurricular activities.

19. West Orange and Olympia are not identical. Homebuyers

generally prefer Olympia to West Orange. Area realtors

emphasize location within the Olympia school zone as a marketing

feature for homes. Prospective homebuyers generally request

homes within the Olympia school zone. Approximately 100

students residing outside the Olympia attendance zone have

falsified the ir domicile information in order to enroll in

Olympia.

20. Disparities between West Orange and Olympia do not

deny Petitioners a uniform system of education. A uniform

system of education does not require uniformity among individual

schools in physical p lant, curricula, and educational programs. 6

21. The rule development process that culminated in the

challenged rule began sometime in March 2004. Three staff

members in the District office of the Director of Pupil

Assignment (the Director) were responsib le for recommending

school attendance zones to the Superintendent and his cabinet.

22. The Director and her staff pursued negotiated

rulemaking within the meaning of Subsection 120.54(2)(d),

Florida Statutes (2004). In March 2004, the staff began to

es tablish relevant time lines. In April and May of the same

year, staff met with principals of schools potentially subject

to rezoning. Staff requested each school principal to submit

the names of three individuals to serve on a school rezoning

committee t o work with the staff. Each school rezoning

committee was comprised of the "PTSA president, SAC chairperson,

and another member."

23. Each school rezoning committee was a negotiating

committee within the meaning of Subsection 120.54(2)(d), Florida

Stat utes (2004). Each school rezoning committee was a balanced

committee of interested persons who drafted complex rules in

anticipation of public opposition. Each committee worked in

good faith to develop group consensus for a mutually acceptable

proposed r ule.

24. The Director and her staff provided packages to each

school rezoning committee. The packages included information

concerning time lines; rezoning criteria; maps; demographic

information about neighborhoods; transfer policies;

transportation; and school data such as demographics,

enrollment, and original design capacity.

25. Each committee developed proposed attendance zones

based on eight rezoning criteria prescribed in the packages.

The eight rezoning criteria are identified in the rec ord as:

operate under the current desegregation order; consider future

planning and growth of attendance zones; equally distribute

population to balance facility use of affected schools; consider

reducing student transportation distances, when necessary;

m aximize the number of students walking to school; maximize the

school feeder pattern structure; minimize the disruption of

residential areas; and ensure demographic balance, when

possible. Each committee was required to give overriding

importance to the f irst three of the eight criteria.

26. The school rezoning committees produced approximately

11 initial proposals. The Director and her staff scrutinize

various proposals and received citizen input during three public

meetings on August 25 and October 5 and 25, 2004. Each public

meeting was a rule development workshop within the meaning of

Subsection 120.54(2)(c), Florida Statutes (2004).

27. Approximately 600 members of the public attended the

first workshop conducted on August 25, 2004. Many member s of

the public spoke at the meeting or provided written input

concerning the various proposals.

28. Staff and committee members considered the public

input and scrutinized the proposals. Staff reduced the number

of proposals to seven, identified in the record as options A

through G, and conducted a second workshop on October 5, 2004.

29. Between 400 and 500 members of the public attended the

second workshop. As the meeting "wore on," the Director

concluded that no consensus on a single proposal was a ttainable

at that time and adjourned the meeting.

30. After the second workshop on October 5, 2004, the

staff developed one recommendation for rezoning and two best

options identified in the record as the recommendation, option

A, and option F. Staff p resented the recommendation to the

Superintendent at a cabinet meeting, but also included, for

informational purposes, the two options.

31. Attendees at the cabinet meeting included "area

superintendents," the chief financial officer, the chief

faciliti es officer, the chief operations officer, and the deputy

superintendent for curriculum instruction. The Superintendent

and his staff vetted the recommendation before the

recommendation was presented to the public as the "Staff

Proposal" during a third wor kshop conducted on October 26, 2004.

32. Approximately 500 members of the public attended the

third workshop. The Director presented the Staff Proposal and

received public input.

33. The Staff Proposal reassigns 435 students from Apopka

to the relie f school; 136 students from Olympia to West Orange;

and 2,315 students from West Orange to the relief school. The

Staff Proposal does not rezone students in Citrus Oaks from

Olympia to West Orange. There was no discussion at the third

workshop of rezonin g options other than the Staff Proposal.

34. It is undisputed that Respondent complied with

applicable rulemaking procedures from the initiation of the

rulemaking process, through the third workshop conducted on

October 25, 2004, when staff presented the Staff Proposal. The

alleged violations of applicable rulemaking procedures occurred

from October 26, 2004, through January 11, 2005. During that

interval, Respondent amended the Staff Proposal and adopted the

challenged rule.

35. From October 26 t hrough November 29, 2004, Mrs. Karen

Ardaman, a member of the School Board, conducted several non -

public conferences with the Director and her staff. The non -

public conferences were workshops conducted for the purpose of

rule development within the meanin g of Subsection 120.54(2)(c),

Florida Statutes (2004) (private workshops). The private

workshops did not involve negotiated rulemaking within the

meaning of Subsection 120.54(2)(d), Florida Statutes (2004).

36. The private workshops were conducted betwee n a member

of the School Board and District staff for the official business

of rule development. Mrs. Ardaman stated to the Director and

her staff that the purpose of the private workshops was to

"tweak" the Staff Proposal. Mrs. Ardaman expressed a speci fic

goal of rezoning at least 300 students from Olympia and an

optimal goal of reducing Olympia enrollment to design capacity,

if possible. The workshops were extensive and produced four

"work - up" proposals identified in the record as Petitioner's

Exhibit s 20 through 23. One of the work - up proposals was

adopted by Respondent as the challenged rule on January 11,

2005. 7

37. Each private workshop included "what - if" questions

from Mrs. Ardaman to staff members intended to scrutinize

alternative school re zoning scenarios. Each scenario involved

specific neighborhoods, the demographic breakdown for the

neighborhood, the actual number of students, and the number of

students to be reassigned.

38. One work - up extended the West Orange zone to an area

north of State Road 50. Another work - up reduced the Apopka

enrollment from 4,265 to 3,830, or approximately 650 students

over design capacity of 3,187.

39. The private workshops included conversations regarding

the use of permanent modular classrooms to reli eve overcrowding

at Olympia. Mrs. Ardaman requested staff to explore the

possibility of adding permanent modular classrooms.

40. On November 30, 2004, the Superintendent published in

an area newspaper of general circulation a Notice of School

Board Meet ing scheduled for December 6, 2004. In relevant part,

the notice stated that the purpose of the meeting is to discuss

"West Orange Apopka Relief School Rezoning."

41. The public meeting conducted on December 6, 2004, was

a rule development workshop wit hin the meaning of Subsection

120.54(2), Florida Statutes (2004). The School Board considered

the Staff Proposal and the Ardaman alternative (the alternative

proposal).

42. The alternative proposal was circulated to the other

members of the School Boar d. Two members left the workshop

early. The remaining five members, including Mrs. Ardaman,

reached consensus to reject the Staff Proposal and to advertise

the alternative proposal as the proposed rule.

43. On December 11, 2004, the Superintendent pub lished a

Notice of Proposed Action on High School Attendance Zones in The

Orlando Sentinel . The public notice advertised a public hearing

scheduled for January 11, 2005, to adopt the proposed rule.

That portion of the public notice entitled, "Summary of

Proposal" states, in relevant part, that the proposed rule

reassigns students residing in Citrus Oaks from Olympia to West

Orange.

44. The meeting conducted on January 11, 2005, was a

public hearing within the meaning of Subsection 120.54(3)(c)1.,

Flori da Statutes (2004). Members of the School Board adopted

the proposed rule by a vote of four to three. Mrs. Ardaman

voted with the majority.

45. The private rule development workshops between a

school board member and District staff failed to follow

ap plicable rulemaking procedures prescribed in Subsections

120.54(2)(a) and (c), Florida Statutes (2004). Respondent

provided no public notice of the private workshops.

46. Respondent failed to follow applicable rulemaking

procedures prescribed in Subsecti on s 120.54(2)(a) and (c),

Florida Statutes (2004), for the rule development workshop that

Respondent conducted in public on December 6, 2004. The notice

published on November 30, 2004, was less than 14 days before

December 6, 2004. The published notice d id not include an

explanation of the purpose and effect of either the Staff

Proposal or the alternative proposal. The published notice did

not cite the specific legal authority for either proposal and

did not include the preliminary text of each proposal.

47. Respondent failed to comply with other rulemaking

procedures prescribed in Subsection 120.54(2)(c), Florida

Statutes (2004). Respondent precluded public participation

during the rule development workshop on December 6, 2004.

Therefore, the person s responsible for preparing the respective

proposals did not explain either proposal to the public and were

not available to answer questions from the public or to respond

to public comments.

48. The failure to comply with applicable rulemaking

procedure s is presumed to be material within the meaning of

Subsection 120.52(8)(a), Florida Statutes (2004).

§ 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts

to Respondent to rebut the presumption. Id. Respondent did not

rebut the presumption wit h evidence that the fairness of the

proceeding was not impaired or that the proceeding was

procedurally correct.

49. Respondent did not show that it cured the materiality

of the failure to comply with applicable rulemaking procedures

(procedural errors) by satisfying other rulemaking requirements

such as those in Subsection 120.54(3)(e), Florida Statutes

(2004). After December 11, 2004, when Respondent published the

notice of proposed agency action to adopt the proposed rule,

Respondent did not show tha t it filed a certified copy of the

proposed rule with the agency head, together with other relevant

materials, for public inspection. For reasons stated

hereinafter, the public hearing conducted on January 11, 2005,

did not cure the materiality of prior p rocedural errors.

50. A preponderance of evidence shows the failure to

comply with applicable rulemaking procedures was material within

the meaning of Subsection 120.52(8)(a), Florida Statutes (2004).

The procedural errors impaired the fairness and proc edural

correctness of the development and adoption of the challenged

rule.

51. In relevant part, the failure to provide public notice

of the private workshops deprived members of the School Board

and the public from equal participation, an opportunity t o

scrutinize various scenarios, and an opportunity for input and

comment. The private workshops circumvented six months of prior

negotiated rulemaking and public workshops between District

staff, rezoning committees, the public, and the Superintendent

and his cabinet; and reduced the public process to a shell into

which non - public decisions were later poured.

52. The public notice advertised on November 30, 2004, was

inadequate. The notice deprived interested members of the

School Board and the public of prior notice that the scope of

the workshop on December 6, 2004, would include rezoning

proposals not addressed in previous public workshops.

53. The procedural errors materially changed the Staff

Proposal and materially affected some students not assi gned to

Olympia in the Staff Proposal. For example, the Staff Proposal

decreases Olympia enrollment, through reassignment of students

to West Orange, by 136 students; or approximately four percent

of the 3,337 students enrolled in Olympia on October 15, 2 004;

and approximately three percent of the 3,410 students projected

to be enrolled in Olympia in the next school year (the 2005 - 2006

school year). The challenged rule decreases Olympia enrollment

by 285 students. That is more than twice the decrease in

enrollment in the Staff Proposal. The challenged rule decreases

enrollment at Olympia by approximately eight percent of the

3,332 students enrolled in Olympia on November 15, 2004; and

approximately eight percent of the projected enrollment of 3,410

for t he following school year.

54. The procedural errors materially impact the original

design capacities at Olympia and West Orange. The original

design capacities at the respective schools are 2,781 and 3,195

students. The enrollment at Olympia on Octobe r 15, 2004, in the

amount of 3,337 students, exceeded original design capacity by

556 students (overcrowding), or approximately 19.9 percent. The

enrollment at West Orange on the same date, in the amount of

4,320 students, exceeded original design capacit y by 1,035

students, or approximately 32.4 percent.

55. The Staff Proposal reduced overcrowding at Olympia to

420 students, or approximately 15.1 percent of original design

capacity; and added 136 students to West Orange enrollment, or

approximately 4.2 percent of original design capacity at West

Orange. Based on enrollment on October 15, 2004, the challenged

rule decreases overcrowding at Olympia to 271 students, or

approximately 9.7 percent of original design capacity; and adds

285 students to the Wes t Orange enrollment, or approximately 8.9

percent of original design capacity. 8

56. The materiality of the procedural errors is

exacerbated by the scheduled loss of the Ninth Grade Center at

West Orange in the 2005 - 2006 school year. That event will

reduc e actual capacity at West Orange from the original design

of 3,195 students to 1,993 students. This is a capacity loss of

1,202 students. The challenged rule adds 285 students to West

Orange enrollment next year, which is an increase of

approximately 14. 3 percent over actual capacity. The Staff

Proposal adds 136 students to West Orange enrollment, which is

an increase of approximately 6.8 percent over actual capacity.

57. The Staff Proposal and challenged rule leave West

Orange with 2,236 and 2,385 st udents, respectively, or

approximately 243 and 392 students over next year's actual

capacity of 1,993 students. Overcrowding at West Orange from

the Staff Proposal is approximately 12.19 percent of actual

capacity next year, and overcrowding from the chal lenged rule is

approximately 19.66 percent of actual capacity.

58. The Staff Proposal reduces overcrowding at Olympia

next year from 19.99 percent to 15.1 percent over capacity and

leaves overcrowding at West Orange over 12.19 percent. The

challenged r ule reduces overcrowding next year at Olympia from

19.99 percent to approximately 9.7 percent and leaves

overcrowding at West Orange at 19.66 percent over actual

capacity.

59. The procedural errors facilitated a challenged rule

that departs materially from recommendations by the Olympia

rezoning committee. The rezoning committee recommended no

change at the school. In relevant part, the committee wrote:

While we recognize that Olympia remains

overcrowded, aggressive, proactive measures

should be taken to address overcrowding of

Olympia in other ways. Specifically those

measures include:

1. Exploring the possibility of adding

"permanent" modular structures; and

2. Increasing efforts to remove students

who attend Olympia illegally claiming an

addres s in our zone but who actually live

out of zone.

West Orange is left with room for the growth

they expect.

Petitioner's Exhibit 14 (P - 14).

60. The Orange County Commission, in a decision entered on

July 14, 1998, prohibited "portable" classrooms on t he Olympia

campus in the original design of the school. The decision,

however, does not expressly prohibit "permanent" modular

classroom structures. Sufficient property exists on the Olympia

campus to accommodate permanent modular classroom structures.

6 1. The procedural errors that occurred in adopting the

challenged rule materially affected students in Citrus Oaks who

are reassigned to West Orange. The challenged rule will

interrupt feeder patterns at Gotha by reassigning some Gotha

students to West O range and allowing others to attend Olympia.

62. The preceding findings concerning variations between

the Staff Proposal and the challenged rule are made solely for

examining the materiality of procedural errors. The findings do

not examine the merits of the challenged rule or the wisdom of

the decision of the School Board.

63. Respondent maintains a stated agency policy that

prohibits an individual member of the School Board from

participating in any matter pending before the Board in which

the memb er has a conflict of interest. In relevant part, the

written policy provides:

Board members are expected to avoid

conflicts of interest involving any matter

pending before the board. A conflict of

interest is deemed to exist when the member

is confronted with an issue in which the

member has a personal . . . interest or

. . . circumstance that could render the

member unable to devote complete loyalty and

singleness of purpose to the public

interest. . . . The accountability to the

whole district supersed es:

* * *

c. Conflicts based upon the personal

interest of a board member who is a parent

of a student in the district.

P - 6, at 001945.

64. Mrs. Ardaman is a member of the School Board who is a

parent of three students in the Olympia school zon e. When

District staff presented the Staff Proposal, one student was a

senior at Olympia, another was a sophomore at Olympia, and the

youngest was in the sixth grade at Gotha.

65. Mrs. Ardaman did not have a conflict of interest

concerning the Staff Pr oposal, option A, or option F. None of

those proposals reassigned any of the Ardaman children from

Olympia to West Orange.

66. A deemed conflict of interest existed for Mrs. Ardaman

during: the private workshops she conducted with District staff

for the purpose of rule development; the public deliberations at

the meeting conducted on December 6, 2004; and the vote of the

School Board members that took place at the public hearing

conducted on January 11, 2005. Courts have recognized that each

concerned p arent has an interest in his or her children, the

educational program in which each is enrolled, the prevention of

disruption in the educational progress of each child, and any

unwarranted disruption in the child's educational experience. 9

Mrs. Ardaman ha d a judicially recognized interest in developing

and adopting a rule that minimized the foregoing impacts on her

children.

67. Citrus Oaks sits on the northern boundary of Old

Winter Garden Road (Winter Garden). The Ardaman children reside

in a neighbor hood to the south of Winter Garden. Mrs. Ardaman

chose to reassign Olympia students to West Orange from three

neighborhoods north of Winter Garden, including students in

Citrus Oaks, and to reassign Olympia students to West Orange

from only one neighborho od south of Winter Garden.

68. The challenged rule does not achieve the optimal goal

sought by Mrs. Ardaman of reducing Olympia enrollment to the

original design capacity. The challenged rule could have

achieved that goal by increasing the number of re assignments to

West Orange from the geographic area south of Winter Garden.

Mrs. Ardaman declined that option.

69. During the non - public workshops, Mrs. Ardaman asked

District staff to analyze numerous school rezoning scenarios

based on reassignments fro m specific neighborhoods. Although

the various scenarios included neighborhoods south of Winter

Garden, Mrs. Ardaman did not ask staff to analyze a scenario

that would have reassigned students in her neighborhood from

Olympia to West Orange.

70. Reassig nment of Olympia students in the neighborhood

in which Mrs. Ardaman resides would have interrupted feeder

patterns for Gotha students. At the time, Mrs. Ardaman had a

child in the sixth grade at Gotha. The challenged rule

interrupts feeder patterns at Go tha for students residing in

neighborhoods north of Winter Garden.

71. Respondent exercised agency discretion in adopting the

challenged rule in a manner that was inconsistent with

officially stated agency policy. Respondent permitted a member

of the School Board with a personal interest deemed to be a

conflict of interest to participate in a pending matter before

the School Board.

72. The deviation from agency policy was material. The

members of the School Board voted on January 11, 2005, to a dopt

the proposed rule by a vote of four to three. Mrs. Ardaman cast

the deciding vote. Without the vote of Mrs. Ardaman, the

remaining tie vote would have been insufficient to adopt the

proposed rule. 10

73. The deviation from agency policy was materi al for

other reasons previously stated in the discussion of procedural

errors and not repeated here. Respondent did not explain the

deviation from officially stated agency policy.

74. The adoption of the challenged rule was neither

arbitrary nor capricio us within the meaning of Subsection

120.52(8)(e), Florida Statutes (2004). The agency action is

supported by logic and essential facts. Respondent did not

adopt the proposed rule without thought or reason, and the

proposed rule is not irrational.

75. Be tween December 6, 2004, and January 11, 2005, the

members of the School Board received data sheets and impact

assessments for the proposed rule. The members had already

received the data supporting the Staff Proposal. The members

had adequate time betwee n December 6, 2004, and January 11,

2005, to evaluate the logic, essential facts, and rationality of

the proposed rule.

76. The members of the School Board were faced with a

controversial issue and a difficult decision. Reasonable

individuals arguably may have decided to draw the school

attendance zones differently. However, it is not appropriate

for the trier of fact to substitute his judgment for that of the

members of the School Board or to examine the wisdom of the

decision of the School Board.

7 7. Even though Respondent did not adopt the challenged

rule in an arbitrary or capricious manner, the procedural errors

and deviations from officially stated agency policy were

material. Each impaired the fairness of the proceedings and

prevented the age ncy action from being procedurally correct.

CONCLUSIONS OF LAW

78. Respondent is part of the legislative branch of

government rather than the judicial or executive branch. Canney

v. Board of Public Instruction of Alachua County , 278 So. 2d 260

(Fla. 19 73); Dunbar Electric Supply, Inc. v. School Board of

Dade County , 690 So. 2d 1339 (Fla. 3d DCA 1997). However,

Respondent is a constitutional entity that derives part of its

authority from the constitution rather than from the

L egislature.

79. The aut hority to operate, control, and supervise

public schools within the District is "constitutionally reposed"

in Respondent. Fla. Const. , Art. IX, § 4(b) (2004); see Dunbar ,

690 So. 2d at 1339 (school boards are constitutional entities).

The authority to ma intain a statewide uniform system of

education is constitutionally vested in the L egislature. Fla.

Const. , Art. IX, § 1(a) (2004).

80. Multiple constitutional provisions addressing a

similar subject must be read in pari materia in a manner that

gives e ffect to each provision. Caribbean Conservation

Corporation, Inc. v. Florida Fish and Wildlife Conservation

Commission , 838 So. 2d 492, 501 (Fla. 2003). While Respondent

has constitutional authority over local control of the schools

within the District, the L egislature has authority to maintain a

uniform system of statewide education. W.E.R. v. School Board

of Polk County , 749 So. 2d 540, 542 (Fla. 2d DCA 2000); United

Teachers of Dade FEA/United, AFT, Local 1974, AFL - CIO, et al. v.

Dade County School Bo ard , 472 So. 2d 1269, 1270 (Fla. 1st DCA

1985).

81. Judicial decisions employ either a territorial test or

a functional test to distinguish statewide and local functions.

The territorial test looks at whether the agency has legal

authority to operate o utside a single county. The functional

test considers whether agency action serves a public purpose and

benefits the citizens of the state generally. Compare Orlando -

Orange County Expressway Authority v. Hubbard Construction Co. ,

682 So. 2d 566 (Fla. 5th DCA 1996)(territorial test showed

expressway authority is state agency because it has authority to

operate in more than one county) and Pepin v. Division of Bond

Finance , 493 So. 2d 1013 (Fla. 1986)(functional test showed

intra - county part of statewide sy stem served a public purpose

and benefited the citizens of the state) with Booker Creek

Preservation, Inc. v. Pinellas Planning Council , 433 So. 2d 1306

(Fla. 2d DCA 1983)(territorial test showed planning council was

a unit of local government and not a st ate agency because

council had authority within one county) and Rubinstein v.

Sarasota County Public Hospital Board , 498 So. 2d 1012 (Fla. 2d

DCA 1986)(territorial test showed hospital board is not a state

agency because jurisdiction is confined to one cou nty).

82. Under either of the foregoing tests, the establishment

of school attendance zones within the District involves the

exercise of local authority that is constitutionally reposed in

Respondent. The school attendance zones at issue in this

procee ding have no legal effect outside the District. The

school attendance zones serve no public purpose and benefit no

citizen outside the District.

83. The L egislature cannot delegate by statute authority

that the constitution reposes in Respondent rather than the

L egislature. Cf. , NAACP, Inc. v. Florida Board of Regents , 863

So. 2d 294, 295 n. 1 (Fla. 2003)(preserving for disposition by

the 1st DCA a suggestion that rule challenge was moot because

challenged rule had been superseded by new rule adopted b y new

constitutional agency in the exercise of constitutional

authority). Compare Caribbean , 838 So. 2d at 494 and 504

(portion of statute subjecting exercise of constitutional

authority over species of "special concern" to provisions of

Chapter 120, Flor ida Statutes (1999), is unconstitutional) with

Wilkinson v. Florida Fish and Wildlife Conservation Commission ,

853 So. 2d 1088, 1089 (Fla. 1st DCA 2003)(portion of statute

subjecting exercise of legislative authority over "threatened

and endangered" specie s to provisions of Chapter 120, Florida

Statutes (1999), is constitutional). The L egislature cannot

reallocate authority expressly delineated in the constitution.

Chiles v. Children A, B, C, D, E, and F , 589 So. 2d 260, 268 - 269

(Fla. 1991).

84. The ex ercise by Respondent of local control over the

operation and supervision of schools within the School District

is not the exercise of delegated legislative authority within

the meaning of Subsections 120.52(8) and 120.56(1), Florida

Statutes (2004). Cf. D unbar , 690 So.2d at 1339(school boards

are constitutional entities that are not subject to bid

resolution procedures in Chapter 120, Florida Statutes (1995)).

The exercise of such authority by Respondent is the exercise of

constitutional authority. DOAH does not have subject matter

jurisdiction, under Subsection 120.56(1), Florida Statutes

(2004), to determine whether the challenged rule is an invalid

exercise of constitutional authority over local control of

public schools within the District.

85. Th e L egislature has constitutional authority to

maintain a uniform system of statewide education. Fla. Const. ,

Art. IX, § 1(a) (2004). That authority includes the authority

to ensure that school boards exercise local control in a manner

that is uniformly f air and procedurally correct. See Canney ,

278 So. 2d at 263 ( L egislature may require school board to

exercise authority pursuant to minimum standards of fairness

that include individual rights and open, public meetings);

School Board of Osceola County v. UCP of Central Florida , 2005

WL 924317 (Fla. 5th DCA April 22, 2005)(school board cannot deny

application for charter school without good cause).

86. Authority to ensure that school boards exercise local

control in a manner that is fair and procedurally correct is a

quasi - judicial authority. Canney , 278 So. 2d at 263

(requirement for school board to exercise authority pursuant to

minimum standards of fairness is quasi - judicial). The

L egislature delegated to each school board, including

Respondent, the quasi - judicial authority to ensure that local

school attendance zones are established and modified pursuant to

a statewide system that is uniformly fair and procedurally

correct. §§ 1001.41(6) and 1001.42(4)(a), Fla. Stat. (2004).

DOAH has subject matter jurisdiction to determine whether the

exercise of this delegated legislative authority, during the

development and adoption of the challenged rule, was invalid

within the meaning of Subsection 120.52(8), Florida Statutes

(2004). § 120.56(1), Fla. Stat. ( 2004).

87. Petitioners have standing to challenge the rule

adopted by Respondent. T he challenged rule affects the

substantial interests of Petitioners within the meaning of

Subsections 120.56(1) and (3), Florida Statutes (2004).

88. Parents and student s aggrieved by a rule establishing

school attendance zones have standing to challenge the rule.

Cortese v. School Board of Palm Beach County , 425 So. 2d 554,

555 (Fla. 4th DCA 1982); School Board of Leon County v. Ehrlich ,

421 So. 2d 18, 19 (Fla. 1st DCA 1982); School Board of Broward

County v. Gramith , 375 So. 2d 340 (Fla. 1st DCA 1979); School

Board of Broward County v. Constant , 363 So. 2d 859, 861 (Fla.

4th DCA 1978). But see School Board of Orange County v.

Blackford , 369 So. 2d 689 (Fla. 1st DCA 197 9) and Hill v. School

Board of Pinellas County , 954 F. Supp. 251 (M.D. Fla. 1997),

aff'd 137 F.3d 1355 (11th Cir. 1998)(unpublished opinion)(both

cases denying standing to students and parents challenging

change in school attendance zones). Parties aggrie ved by

changes in school attendance zones have standing to challenge

such rules in accordance with the Administrative Procedure Act.

Constant , 363 So. 2d at 861.

89. Citrus Oaks has associational standing to challenge

the existing rule. Plantation Res idents' Association, Inc. v.

School Board of Broward County , 424 So. 2d 879, 880 n. 2 (Fla.

1st DCA 1982). A substantial number of the members of Citrus

Oaks are substantially affected by the challenged rule. The

subject matter of the rule is within the association's general

scope of interest and activity. The relief requested is

appropriate for the association to receive on behalf of its

members. See NAACP, Inc. , 863 So. 2d at 298 (setting forth the

test for associational standing).

90. In Florida, unlike the federal system, the doctrine of

standing has not been rigidly followed. Coalition for Adequacy

of Fairness In School Funding, Inc. v. Chiles , 680 So. 2d 400,

403 (Fla. 1996). One of the purposes of the Administrative

Procedure Act is to expand , rather than constrain, public

participation in the administrative process. NAACP, Inc. , 863

So. 2d at 298.

91. Petitioners have the burden of proof in this

proceeding. § 120.56(3)(a), Fla. Stat. (2004). Petitioners

must show by a preponderance of the evidence that the challenged

rule is an invalid exercise of delegated legislative authority

within the meaning of Subsections 120.52(8)(a) or (e), Florida

Statues (2004). Id.

92. Respondent is an agency defined in Subsection

120.52(1)(b), Florida Stat utes (2004). Respondent is an

educational unit within the meaning of Subsection

120.52(1)(b)7., Florida Statutes (2004). Mitchell v. Leon

County School Board , 591 So. 2d 1032 (Fla. 1st DCA 1991); Pelham

v. Superintendent of the School Board of Wakulla Co unty , 436 So.

2d 951 (Fla. 1st DCA 1983); Witgenstein v. School Board of Leon

County , 347 So. 2d 1069 (Fla. 1st DCA 1977); Canney v. Board of

Public Instruction of Alachua County , 222 So. 2d 803 (Fla. 1st

DCA 1969).

93. The adoption of school attendance z ones constitutes

rulemaking. Plantation , 424 So. 2d at 880 and n. 2; Polk v.

School Board of Polk County , 373 So. 2d 960, 961 (Fla. 2d DCA

1979). It is undisputed that the challenged rule satisfies the

statutory definition of a rule in Subsection 120.52( 15), Florida

Statutes (2004).

94. Agency rulemaking must comply with applicable

rulemaking procedures prescribed in Section 120.54, Florida

Statutes (2004). For reasons discussed in the Findings of Fact,

Petitioner met its burden of proving that Respond ent materially

failed to follow the applicable rulemaking procedures within the

meaning of Subsection 120.52(8)(a), Florida Statutes (2004).

95. In relevant part, successive non - public conferences

between one board member and District staff were private rule

development workshops within the meaning of Subsection

120.54(2), Florida Statutes (2004). The board member conferred

with staff to conduct rule development. The workshops produced

a proposed rule that Respondent adopted on January 11, 2005, in

an open, public hearing. Compare Blackford v. School Board of

Orange County , 375 So. 2d 578, 581 (Fla. 5th DCA 1979)

(successive private meetings among school board members and the

superintendent to develop a rezoning plan that was later adopted

in an open, public hearing must be re - examined in public

meetings) with Cortese , 425 So. 2d at 557, n. 9 (in which the

court distinguished the holding in Blackford , inter alia , on

factual grounds that no non - public meetings were evidenced in

Cortese ).

96. The public notice on November 30, 2004, advertising

the public workshop scheduled for December 6, 2004, was a notice

of rule development required in Subsections 120.54(2)(a)

and (c), Florida Statutes (2004). The notice of rule

development did not provide 14 - days ' no tice and did not include:

an explanation of the purpose and effect of either the Staff

Proposal or the alternative proposal (the proposed rules). It

does not provide the specific authority for the proposed rules,

or a preliminary text of either proposed rule.

97. The failure of Respondent to follow applicable

rulemaking procedures is presumed to be material.

§ 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts

to Respondent to rebut the presumption. Id. Respondent did not

rebut the presump tion with evidence that the fairness of the

proceeding was not impaired or that the agency action was

procedurally correct.

98. The failure to follow applicable rulemaking procedures

precluded other members of the School Board as well as

interested member s of the public from participating in the

private rule development workshops. The private workshops

reduced approximately six months of prior public workshops and

negotiated rulemaking to shells into which non - public decisions

were later poured. Compare Cortese , 425 So. 2d at 557

(upholding a school board plan, inter alia , on grounds that

public meetings were not shells into which non - public decisions

were poured).

99. The notice of rule development published on

November 30, 2004, did not provide prior notice that Respondent

would consider a proposal other than the Staff Proposal

presented to the public on October 25, 2005. While it is

possible to develop data and scrutinize scenarios "on the fly,"

in the words of the Director, prior notice provides an advantage

that allows time to develop data and scrutinize scenarios in

advance of a workshop. Transcript , at 429, L 10 - 18.

100. Rulemaking involves the exercise of agency

discretion. Cortese , 425 So. 2d at 558. The exercise of agency

discretion by a s chool board to ensure the substantive

correctness of school attendance zones is a quasi - legislative

function. Plantation , 424 So. 2d at 880 - 881; Polk , 373 So. 2d

at 962. The exercise of agency discretion by a school board to

draw school attendance zones in a manner that is fair and

procedurally correct is a quasi - judicial function. Cf. Canney ,

278 So. 2d at 263 (requirement for school board to exercise

authority to expel students pursuant to minimum standards of

fairness is quasi - judicial).

101. Respo ndent must exercise agency discretion involving

a quasi - judicial function in a manner that is consistent with

officially stated agency policy. § 120.68(7)(e)3., Fla. Stat.

(2004). Respondent must explain any deviation from officially

stated agency policy . Id. 11

102. The officially stated policy of Respondent prohibits

a member of the School Board from participating in matters

pending before the Board when a conflict of interest exits for

the member. The policy deemed a conflict of interest to exist

for one member of the School Board during the time the member

engaged in private rule development workshops and voted to adopt

the challenged rule.

103. The Board member is a parent of three children who

were students in the Olympia school zone during the time the

member developed and voted to adopt a rule that reassigned

students from Olympia to West Orange. Courts recognize that

every concerned parent:

. . . has an interest in their children and

in the educational program in which their

children are enro lled. They also have a

natural interest that the educational

progress of the child not be unnecessarily

disrupted.

Balckford , 369 So. 2d at 691.

104. Respondent deviated from its officially stated policy

by allowing a Board member with a deemed co nflict of interest to

participate in a matter pending before the Board. Respondent

did not explain the deviation from its policy.

105. It is undisputed that Respondent developed the Staff

Proposal in a manner that is fair and procedurally correct.

Respondent developed and adopted that portion of the challenged

rule that changed the Staff Proposal in a manner that is unfair

and procedurally incorrect. See Blackford , 375 So. 2d at 581

(requiring school board to re - examine in open public meetings a

rule that was developed in private meetings).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Respondent developed and adopted the portion

of the challenged rule that varies from the Staff Proposal in a

manner that is an invalid exercise of delegated legislative

authority within the meaning of Subsection 120.52(8)(a), Florida

Statutes (2004).

DONE AND ORDERED this 2 8 th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

DA NIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of July, 2005.

ENDNOTES

1 / Five of Petitioner's 34 exhibits are numbered 30A - 30E. The

court reporter retained all of the exhibits for attachment to

the Transcript. Petitioner's Exhibit 1 (a computer printout)

and Respondent's Exhibits 11B and 12B (audio tapes) were not

included with the Transcript. Respondent's Exhibit 13 is not

included, but is identical to Petitioner's Exhibit 15.

2 / The issue of whether the establishment and modification of a

sc hool attendance zone is a local function or a statewide

function is a mixed question of fact and law. Legal analysis is

discussed in the Conclusions of Law, but a brief summary of the

legal framework may elucidate the purpose of relevant findings.

The L e gislature has the predominant role to provide adequate

funding, support, and maintenance of free public schools. Fla.

Const. , Art. IX, § 1 and 6 (2004). Statewide supervisory

authority over public education resides in the Board of

Education. Fla. Const. , Art. IX, § 2 (2004). Local control

over public schools in each school district is constitutionally

reserved to each school board, including Respondent. Fla.

Const. , Art. IX, § 4 (2004). School boards have authority for

local control while the L egislat ure has authority over matters

of statewide concern. United Teachers of Dade FEA/United, AFT,

Local 974 v. Dade County School Board , 472 So. 2d 1269, 1270

(Fla. 1st DCA 1985) and W.E.R. v. School Board of Polk County ,

749 So. 2d 540, 542 (Fla. 2d DCA 200 0).

3 / Cf. Caribbean Conservation Corporation, Inc. v. Florida Fish

and Wildlife Conservation Commission , 838 So. 2d 492, 494 and

504 (Fla. 2003)(holding, inter alia , statute is unconstitutional

to the extent that the statute requires agency to comply w ith

Chapter 120 in the exercise of authority over species "of

special concern" granted to the agency by the state

constitution). See also Dunbar Electric Supply, Inc. v. School

Board of Dade County , 690 So. 2d 1339, 1340 (Fla. 3d DCA

1997)(bid protest pro cedures in Subsection 120.53(5), Florida

Statutes (1995), do not apply to school boards, in relevant

part, because school boards are constitutional agencies that are

not part of the executive branch of government).

4 / Judicial decisions distinguish a sta te agency from a local

agency on the basis of either a territorial or functional test.

The territorial test determines whether an agency is local based

on whether the agency operates outside the limits of one county.

The functional test determines whethe r an agency is a state

agency based on whether the agency serves a public purpose and

benefits the citizens of Florida in general. Orlando - Orange

County Expressway Authority v. Hubbard Construction Co. , 682 So.

2d 566 (Fla. 5th DCA 1996); Rubinstein v. Sa rasota County Public

Hospital Board , 498 So. 2d 1012 (Fla. 2d DCA 1986); Pepin v.

Division of Bond Finance , 493 So. 2d 1013 (Fla. 1986); Booker

Creek Preservation, Inc. v. Pinellas Planning Council , 433 So.

2d 1306 (Fla. 2d DCA 1983).

5 / Caribbean Conser vation Corporation, Inc. v. Florida Fish and

Wildlife Conservation , 838 So. 2d 492, 504 (Fla. 2003). See

also Dunbar Electric Supply, Inc. v. School Board of Dade

County , 690 So. 2d 1339 (Fla. 3d DCA 1997)(school boards are

constitutional entities, rather than part of executive branch,

and not covered by § 120.53(5), Fla. Stat. (1995), pertaining to

resolution of bid protests).

6 / Coalition for Adequacy of Fairness in School Funding, Inc. v.

Chiles , 680 So. 2d 400, 406 (Fla. 1996); St. Johns County v.

N ortheast Florida Builders Association, Inc. , 583 So. 2d 635,

641 (Fla. 1991); School Board of Escambia County v. State , 353

So. 2d 834, 837 (Fla. 1977).

7 / Compare Blackford v. School Board of Orange County , 375 So.

2d 578 (Fla. 5th DCA 1979)(successive non - public meetings

between school board members and superintendent required

reconsideration of school rezoning in public meetings) with

Cortese v. School Board of Palm Beach County , 425 So. 2d 554,

557 and n. 9 (Fla. 4th DCA 1983)(non - public meetings betw een

board members and superintendent are workshops but no such

meetings occurred in Cortese ).

8 / The Staff Proposal and challenged rule transfer approximately

2,315 students from West Orange to the relief school. The

transfer reduces projected enrollmen t at West Orange for the

2005 - 2006 school year from 4,415 to approximately 2,100

students, or approximately 65.7 percent of capacity. The

reduction attributable to transfers to the relief school is

offset by the number of students to be reassigned from Ol ympia.

West Orange utilizes portable classrooms to accommodate

overcrowding and anticipates significant growth in the West

Orange zone in the future. Olympia does not anticipate

significant growth in the future.

9 / The foregoing finding is adopted from language in Polk v.

School Board of Polk County , 373 So. 2d 960, 961 (Fla. 2d DCA

1979) and School Board of Orange County v. Blackford , 369 So. 2d

689, 691 (Fla. 1st DCA 1979).

10 / Compare Cortese , 425 So. 2d at 557 (involving a vote of six

to one ) and Polk v. School Board of Polk County , 373 So. 2d at

962 (involving adoption by unanimous vote).

11 / The cited statute is a standard for judicial review but is

instructive to agencies to avoid agency action that is subject

to remand by a reviewing co urt.

COPIES FURNISHED :

James A. Gustino, Esquire

James A. Gustino, P.A.

341 North Maitland Avenue, Suite 340

Maitland, Florida 32751

E. Gary Early, Esquire

Messer, Caparello & Self, P.A.

215 South Monroe Street, Suite 701

Post Office Box 1876

Tallahas see, Florida 32302 - 1876

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

Post Office Box 1876

Tallahassee, Florida 32302 - 1876

Andrew B. Thomas, Esquire

1625 Lakeside Drive

Deland, Florida 32720 - 3037

Honorable John L. Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ronald Blocker, Superintendent

Orange County School Board

Post Office Box 271

Orlando, Florida 32802 - 0271

Liz Cloud, Program Administrator

A dministrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

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 the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a 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.