05-000813RU Florida Education Association vs. Florida State Board Of Education Status: Closed DOAH Final Order on Thursday, September 15, 2005.

Summary: Respondent`s document that explained the impact of a federal consent order, and was distributed to local school districts, did not constitute a "rule" as defined by Section 120.52(15), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA EDUCATION ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0813RU

)

FLORIDA STATE BOARD OF )

EDUCATION, )

)

Respondent. )

)

FINAL ORDER

This petition for a determination pursuant to Subsection

120.56(4)(a), Florida Statutes (2004) , was assigned to

Lawrence P. Stevenson, Administrative Law Judge of the Division

of Administrative Hearings. As more fully explained below, the

parties agreed t hat this case could be decided based upon

stipulated facts and written briefs, rather than by convening a

formal hearing.

APPEARANCES

For Petitioner: Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

For Respondent: Michael D. Kooi, Esquire

Department of Education

124 4 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

Petitioner , Florida Education Association ("FEA") , filed a

Petition to I nvalidate A dministrative A ction purs uant to

Subsection 120.56(4)(a), Florida Statutes (2004) , challenging

the validity of a Technical Assistance Paper issued by the

Florida State Board of Education, Department of Education,

K - 12 Student Achievement, Bureau of Student Assistance ("BOE"),

alle ging that it is an unpromulgated rule. The challenged

Technical Assistance Paper dated March 2005, is titled

"Modifications to the Consent Decree in the League of United

Latin American Citizens et al. v. The State Board of Education ,

1990."

PRELIMINARY ST ATEMENT

This case was assigned to the undersigned on March 4, 2005.

The case was originally set for final hearing on March 25, 2005.

A joint request for abeyance was granted on March 25, 2005, to

permit the parties to discuss settling the case or at le ast to

enter into a stipulation of facts.

On May 2, 2005, the parties filed conflicting status

reports. Petitioner stated that the parties had been unable to

stipulate to any facts and requested that the matter be set for

hearing. Respondent contended that there were no relevant facts

in dispute and that the matter could be more easily decided

through the submission of briefs. The undersigned scheduled the

matter for hearing on June 1, 2005.

At a telephonic hearing on May 24, 2005, the parties made

an ore tenus motion to cancel the scheduled hearing, stipulate

to the relevant facts, and submit briefs on the legal issues in

question. The motion was granted, and the parties filed a joint

briefing schedule on May 31, 2005.

Pursuant to the schedule, Petitioner filed its I nitial

B rief on June 20, 2005. Respondent filed its R esponse B rief on

July 12, 2005. Pursuant to an unopposed request for extension

of time, Petitioner filed its R eply B rief on July 29, 2005. The

following Findings of Fact and Con clusions of Law are based on

the parties' written submissions.

FINDINGS OF FACT

1. Petitioner , FEA , is an employee association

representing over 100,000 Florida educators, including teachers

certified to teach English for Speakers of Other Language s

(ESOL), for collective bargaining, representation in

administrative and legal proceedings, professional development,

and political activity. FEA's standing to bring this challenge

was stipulated.

2. Respondent , BOE , is an "agency" within the meaning of

Subsection 120.52(1)(b), Florida Statutes (2004) . BOE is

generally responsible for oversight of public education in the

State of Florida and is specifically responsible for

administering the legislative plan of professional certification

of Florida's p ublic school educators. §§ 1008.32 and 1012.56,

Fla. Stat. (2004).

3. The BOE memorandum is challenged as an unpromulgated

rule. While other documents containing the same information in

different formats were circulated by individual school districts

to educators, the parties agree that this Technical Assistance

Paper fairly represents the substance of the issues in this

dispute. It was stipulated that the Technical Assistance Paper

has been made generally available to Florida educators. The

content of the Technical Assistance Paper is not in question and

is set forth below.

4 . In 1990, the League of United Latin American Citizens

and 14 other organizations and individuals (collectively

referenced here as "LULAC") brought suit in the United States

Di strict Court for the Southern District of Florida against the

BOE , as it was then constituted , and other state officers,

claiming that the Department of Education's ESOL standards

violated federal and state law. The federal laws allegedly

violated include d the Equal Educational Opportunity Act,

20 U.S.C. 1703(f), and Title VII of the Civil Rights Act of

1964. On August 14, 1990, Judge James Lawrence King entered a

Consent Order approving a settlement agreement. The Consent

Order provided that the court w ould retain jurisdiction for the

purpose of overseeing the implementation of the settlement

agreement.

5 . Section IV of the settlement agreement, titled

"Personnel ," set forth the standards for certification of

personnel to teach ESOL students. Two means for obtaining ESOL

certification were established. "ESOL Endorsement" is a rider

that may be obtained by a teacher alrea dy certified in another

subject by completing 300 hours or 15 semester hours in ESOL.

"ESOL Subject Area Coverage" requires a bachelo r's or master's

degree in Teaching English for Speakers of Other Languages

("TESOL") and a passing score on the ESOL subject matter

examination.

6. To implement Section IV of the settlement agreement,

BOE amended its existing ESOL certification rule, Flor ida

Administrative Code Rule 6A - 4.0244 , and adopted a new rule,

Florida Administrative Code Rule 6A - 4.0245. The rules provide:

6A - 4.0244 Specialization Requirements for

the Endorsement in English to Speakers of

Other Languages -- Academic Class.

(1) Plan One.

(a) A bachelor's or higher degree with

certification in another subject, and

(b) Fifteen (15) semester hours in

English to speakers of other languages

(ESOL) to include credit in each of the

areas specified below:

1. Methods of teach ing English to

speakers of other languages (ESOL),

2. ESOL curriculum and materials

development,

3. Cross - cultural communication and

understanding,

4. Applied linguistics, and

5. Testing and evaluation of ESOL.

(2) Plan Two.

(a) The endorsement in English to

speakers of other languages will be added to

a valid temporary or professional

certificate when an individual completes the

following:

1. Holds a valid Florida educator's

certificate with a coverage specified as

appropriate i n the 1989 - 90 Course Code

Directory as adopted by reference in Rule

6A - 1.09441, F . A . C., for teaching English to

limited English proficient students.

2. Documents at least two (2) years of

successful teaching of English to limited

English proficient stu dents using ESOL

strategies. The successful teaching shall

have been gained prior to July 1, 1990, and

verified in writing by a Florida district

school superintendent.

(b) The endorsement will be retained on

the professional certificate when an

indivi dual completes three (3) semester

hours of college credit or sixty

(60) inservice points which are part of a

district master plan for inservice

education. The college credit or inservice

points shall be completed for the first

certificate renewal after Ju ly 1, 1990, and

must be completed from the area(s) specified

below.

1. Methods of teaching English to

speakers of other languages (ESOL),

2. ESOL curriculum and materials

development,

3. Cross - cultural communication and

understanding,

4. App lied linguistics, and

5. Testing and evaluation of ESOL.

In the event the college credit or

inservice points are not completed during

the first renewal period, the endorsement

will be deleted from the certificate.

6A - 4.0245 Specialization Requir ements for

Certification in English for Speakers of

Other Languages (Grades K - 12) -- Academic

Class.

A bachelor's or higher degree with an

undergraduate or graduate major in English

to speakers of Other Languages shall satisfy

the specialization requireme nts for

certification in English to speakers of

Other Languages (Grades K - 12).

7. In 2002, the Florida Legislature enacted the "Florida

K - 20 Education Code," which included Section 1012.56, Florida

Statutes (2004) , setting forth revised educator certific ation

requirements. See Chap . 2002 - 387, Laws of Florida, § 728.

Among those requirements were the following:

(4) MASTERY OF SUBJECT AREA KNOWLEDGE. --

Acceptable means of demonstrating mastery of

subject area knowledge are:

(a) Achievement of passi ng scores on

subject area examinations required by state

board rule;

(b) Completion of the subject area

specialization requirements specified in

state board rule and verification of the

attainment of the essential subject matter

competencies by the dis trict school

superintendent of the employing school

district or chief administrative officer of

the employing state - supported or private

school for a subject area for which a

subject area examination has not been

developed and required by state board rule;

(c) Completion of the subject area

specialization requirements specified in

state board rule for a subject coverage

requiring a master's or higher degree and

achievement of a passing score on the

subject area examination specified in state

board rule ;

(d) A valid professional standard

teaching certificate issued by another

state; or

(e) A valid certificate issued by the

National Board for Professional Teaching

Standards or a national educator

credentialing board approved by the State

Board o f Education.

* * *

(12) STATE BOARD RULES. -- The State Board

of Education shall adopt rules pursuant to

ss. 120.536 and 120.54 , as necessary to

implement this section.

(13) PRIOR APPLICATION. -- Persons who

apply for certification are governed by the

law and rules in effect at the time of

application for issuance of the initial

certificate, provided that continuity of

certificates is maintained.

8 . BOE did not amend Florida Administrative Code Rules

6A - 4.0244 and 6A - 4.0245 to reflect the new statu te's provisions.

9 . In January 2003, the LULAC plaintiffs filed a motion

for a temporary restraining order and order to show cause for a

preliminary injunction. The plaintiffs alleged that pursuant to

Subsection 1012.56(4)(a), Florida Statutes (2004) , t he

Department of Education intended to permit teachers to become

certified to teach basic ESOL courses based solely on an

examination, without completion of the coursework required by

the settlement agreement and , therefore , in violation of the

August 14, 1990, Consent Order .

10. On September 2, 2003, the parties executed a

"Stipulation Modifying Consent Decree," which provided, in

relevant part:

On August 14, 1990, this lawsuit was settled

and a Settlement Agreement was approved as

an order of the Court. On January 17, 2003,

Plaintiffs' [sic] moved to enforce the terms

of the Consent Decree and on February 28,

2003, the Court ordered the parties to

commence mediation immediately.

On April 25, 2003, the parties participated

in mediation before former Unite d States

District Judge Edward B. David, in Miami,

Florida. This is the first modification

that the parties have sought of the original

Consent Decree. The parties agree to modify

the Consent Decree with respect to § IV

(Personnel), as set forth herein.

1. Nothing herein is intended to diminish

any option for endorsement or coverage set

forth in the August 14, 1990, Decree.

Rather, this stipulation sets forth an

additional means by which a certified

teacher may obtain ESOL subject area

coverage. It al so establishes training

and/or educational requirement [sic] for

persons holding administrative and guidance

counselor positions. All other requirements

of § IV that are not inconsistent with this

modification continue.

2. A certified teacher may obtain ESOL

subject area coverage by virtue of passing a

state approved ESOL certification

examination. Any teacher who receives

coverage in ESOL through this option shall

be required to obtain 120 hours of

in - s ervice training or continuing education

in ESOL - ap proved courses within a three

(3) year period of the date of their receipt

of ESOL certification. This requirement

includes those who have already been

certified under the proficiency test method.

Any ESOL - approved in - service hours and

course work taken prior to gaining ESOL

certification may be counted toward the

required 120 post - certification hours.

3. Defendants shall require that school

administrators and guidance counselors be

required to obtain sixty (60) [hours of] in -

service training or continu ing education in

ESOL - approved courses within a three (3)

year period of the effective date of this

Stipulation. Any school administrators and

guidance counselors hired after the

effective date of this Stipulation shall

have three (3) years from the date of being

hired to meet this requirement. Any ESOL -

approved in - service hours and course work

taken prior to the effective date of this

Stipulation or prior to hiring may be

counted toward the required sixty (60)

post - certification hours.

4. The Departmen t shall inform all

districts of this modification within thirty

days of court approval. It shall further

require all districts to develop reasonable

procedures to assure that all affected

personnel are making regular progress in

meeting its terms, which s hall be reviewed

in monitoring visits. No ESOL certificate

shall be renewed for any teacher that

obtained ESOL subject area coverage through

the option described in ¶ 2 who has not

completed the requisite training within

three (3) years.

* * *

8. This Stipulation shall become an

addendum to § IV of the Consent Decree, and

shall have the full force of the Consent

Decree after approval by the Court. To the

extent that anything herein is incompatible

with the Decree, this Stipulation shall

govern.

* * *

11. The Defendants agree to commence

rulemaking if necessary to effectuate the

terms of the Stipulation within ninety

(90) days of Court approval.

1 1 . As the quoted text makes apparent, the stipulation

appends a 120 - hour in - service training or continui ng examination

requirement to the examination - only certification scheme

authorized by Subsection 1012.56(4)(a), Florida Statutes (2004) .

Additionally, the stipulation appears to contradict the

"grandfathering" provision of Subsection 1012.56(13) , Florida

Statutes (2004), by making the continuing education requirement

applicable even to those teachers already certified under the

examination - only method.

1 2 . On September 9, 2003, United States District Judge

Federico A. Moreno of the Southern District of Fl orida signed an

O rder approving the Stipulation Modifying Consent Decree. The

court again retained jurisdiction of the case to oversee the

implementation of the Stipulation Modifying Consent Decree.

1 3 . Pursuant to paragraph 4 of the Stipulation Modifyin g

Consent Decree, BOE notified school districts of the new

requirements for ESOL certification. This notification was

accomplished by way of the disputed Technical Assistance Paper,

which provides:

MODIFICATIONS TO THE CONSENT DECREE IN THE

LEAGUE OF UNIT

Speakers of Other Languages (TESOL) and a

passing score on the ESOL Subject Area Test.

In July 2002, as a result of legislative

action and changes in State Board of

Education Rule, alternative methods for

obtaining certification were approved. Such

methods include the option of adding a

certificate coverage area by obtaining a

passing score on a subject area test. This

change meant that a teacher wishing to add

ESOL Subject Area Coverage could take the

ESOL Subject Area test and if he/she

obtained a passing score, could apply for

the subject area coverage in ESOL . This

alternative method of obtaining

certification applies to any subject area

for which the Department administers a

subject area test and that does not require

a graduate degree.

In the fall of 2002, based on a complaint

filed by a group of university professors

and other District ESOL Coordinators, the

attorneys for the plaintiffs filed an

injunction alleging the option of adding the

ESOL Subject Area Coverage, by a passing

score on the ESOL Subject Area Test, did not

meet the goals established by the Consent

Decree for teacher training. The

Modification to the Consent Decree in the

League of United Latin American Citizens

et al. v. the State Board of Education, et

al., 1990 is the result of the court - ordered

mediation. The Stipulation Modifying the

Consent Decree ( hereinafter referred to as

the " Modification " ) was signed by Judge

Moreno, U.S. District Court, Southern

Division on September 9, 2003.

EFFECTS OF THE MODIFICATION AND

IMPLEMENTATION TIMELINES

Requirements for Language Arts/English

Teachers:

• T eachers assigned the primary

responsibility for delivering language

arts/English instruction to students

classified as limited English profic ient

(LEP), who elected to obtain the

requisite ESOL certification by way of a

passing score on the ESOL Subject Area

test, thereby meeting the requirements

for subject area coverage (K - 12 ESOL ),

are required to obtain 120 hours/points

or equivalent course s in ESOL in any

approved ESOL course or in - service [1/]

component.

• Teachers in this category must obtain the

120 hours or equivalent courses within

three (3) years of the signing of the

Modification or 3 years from the date of

their receipt of ESOL cer tification.

Requirements for School Administrators:

• The Consent Decree originally required

all administrators to obtain training in

ESOL on the terms of the Consent Decree;

however, no specific number of in - service

points/hours was stipulated.

• Th e Modification requires all school

administrators to obtain 60 in - service

points/hours in ESOL in any approved ESOL

course or in - service component.

• School administrators hired prior to the

effective date of the Modification

(September 9, 2003) must com plete the

required 60 in - service points within

three (3) years.

• School administrators hired after the

effective date of the Modification

(September 9, 2003) must complete the

required 60 in - service points within

three (3) years of their hiring date or

assignment as a school administrator.

• Any ESOL - approved in - service hours and

course work taken prior to the effective

date of the Modification or prior to

being hired as a school administrator may

be counted toward the required 60 in -

service points.

Requirements for School Guidance Counselors:

• As was the case with the requirements for

administrators, the Consent Decree

required guidance counselors to obtain

training in ESOL ; however, no specific

number of in - service points/hours was

stipulated.

• The Modification requires all school

guidance counselors to obtain 60 in -

service points/hours in ESOL in any

approved ESOL course or in - service

component.

• Guidance counselors hired prior to the

effective date of the Modification

(September 9, 2003) m ust complete the

required 60 in - service points within

three (3) years.

• Guidance counselors hired after the

effective date of the Modification

(September 9, 2003) must complete the

required 60 in - service points within

three (3) years of their hiring dat e or

assignment as a guidance counselor.

• Any ESOL - approved in - service hours and

course work taken prior to the effective

date of this Modification or prior to

being hired as a school guidance

counselor may be counted toward the

required 60 in - service p oints.

The attached chart on The Requirements and

Timelines for Completion of the ESOL

Training Requirements [ May be accessed by

visiting the following website

http://www.firn.edu/doe/omsle/timeline.htm]

describes the requirements and provides the

deadli nes for each category of instructional

personnel. [2/]

It is important to note that 120

hours/points or 6 semester hours are

required in order to retain the ESOL

coverage on a Professional Certificate at

the first certificate renewal subsequent to

the three - year time frame for completion of

the 120 hours or equivalent ESOL courses.

The ESOL coverage shall not be added back to

the Professional Certificate until the 120

points/courses are completed. Currently,

Florida teaching certificates are issued for

5 ye ars. ESOL training is considered as

"in - field, in any field" and as such may be

used to meet the certificate renewal

requirement for any certification coverage.

In - service points/hours in ESOL may be

"banked" for subsequent certificate validity

periods. [See Rule 6A - 4.0051, which may be

viewed at the following website:

http://www.firn.edu/doe/rules/final4.pdf]

Other requirements:

Experts designated by the plaintiffs were

provided secured access to the ESOL Subject

Area Test and the opportunity to pro vide

input to the Department of Education on

recommended changes to the test, item

specifications, and the skills and

competencies to be tested.

In addition, the Department of Education

agreed to perform a substantial review of

the existing ESOL Subject Area Test and item

specifications beginning with the 2004

school year and to be completed no later

than July 1, 2006.

QUESTIONS AND ANSWERS

Question #1:

To whom do the requirements to obtain the

additional 120 points/hours in ESOL apply?

Answer: As stipulated in the Modification,

any primary language arts teacher of LEP

students who obtained ESOL certification

solely by passing the K - 12 ESOL Subject Area

test is required to obtain the 120

points/hours in ESOL .

Question #2:

By when must a primary language arts teacher

who has been granted ESOL Subject Area

Coverage (K - 12 ESOL ) certification by

obtaining a passing score on the subject

area test obtain the required ESOL in -

service training points/hours?

Answer : Three years from the effective date

of the Modification (September 9, 2003) or

the date of the teachers' receipt of ESOL

Subject Area Certification, which ever

occurs later.

Question #3:

After three years, what must be done in

order to retain the K - 12 ESOL Subject Area

Certification on a Professional Certificate?

Answer: Documentation must be compiled to

verify the completion of the required 120

points/hours of ESOL in - service training in

order for the ESOL K - 12 certification to be

retained on the Professional Certificate

when the certi ficate is renewed for the

first time after the three - year time frame

for the completion of the 120 points/hours

in ESOL .

Question #4:

What courses satisfy the 120 points/hours

required in ESOL ?

Answer: Any courses listed in the

District's approved ES OL Add - On Endorsement

Plan and/or approved ESOL courses included

in the District's Master In - service Plan .

Question #5:

May ESOL points/hours previously earned

(prior to September 9, 2003) be used to

satisfy this new requirement?

Answer: Yes, Modific ation states that any

approved ESOL course taken prior to the

settlement may be counted towards the 120

in - service points.

Question #6:

May teachers still obtain the required ESOL

certification by completing the 300 - hour

ESOL Endorsement?

Answer: Yes . There are three methods for

obtaining the appropriate ESOL

certification: (1) completion of 300 - hour

ESOL Endorsement requirements; (2) a passing

score on the K - 12 ESOL Subject Area Test,

plus 120 points/hours in approved ESOL

courses within three year s of adding the

ESOL c ertification; or (3) a Bachelor' s or

Master ' s Degree in Teaching English for

Speakers of Other Languages, plus a passing

score on the K - 12 ESOL Subject Area Test.

Question #7:

For a teacher who passes the test, completes

the 120 ho urs, and then is up for renewal

will the teacher renew the certification

with ESOL or generic points?

Answer: The 120 ESOL in - service

points/hours could be " banked " if the

teacher already has the required in - service

points to renew his/her certificate; or the

ESOL in - service points may be used to renew

the certificate. If the teacher used the

120 points/hours to renew the prior

certificate; then the points may not be used

again for renewal.

Question #8:

For teachers who have previously banked ESOL

poi nts/hours, may those points/hours be used

to meet the new 120 points/hour requirement

for those who have just passed the ESOL

Subject Area test?

Answer: Yes, the Modification states that

ESOL in - service points/hours taken prior to

September 9, 2003 may be used toward meeting

the new requirement. There is no

prohibition from using ESOL in - service

points, which have been banked. In

addition, the " banked " ESOL in - service

points/hours may be used towards the renewal

of the subsequent certificate.

Questio n #9:

If a teacher passed the ESOL Subject Area

test in 2003 and is due to recertify in 2004

or 2005, will they have to get the 120 hours

in ESOL before recertifying?

Answer: No, not in this example, the

Modification requires 120 in - service/points

or c ourses within three years, whether or

not the three years coincide with the

teacher ' s certificate renewal period.

Question #10:

Can the 300 - hour ESOL Endorsement or the 120

hours/points in ESOL satisfy the

requirements for renewal of other

certification subject coverages, as well as

ESOL certification?

Answer: ESOL in - service points/hours or the

equivalent college credit may be used to

renew any certification coverage due to the

fact that ESOL courses or i n - service

points/hours count as " in - field, in any

field. "

Question #11:

If a teacher does not take the 120 hours

within the 3 years, but his/her certificate

is valid for 5 years, will he/she still be

certified for the 5 years and just not

eligible to retain ESOL on his/her

certificate when the cert ificate is renewed?

Answer: Yes, the Modification prohibits the

renewing of a teacher’s certificate in ESOL

if the teacher of primary language arts of

LEP students does not complete the required

ESOL training within the three years.

Question #12:

For teachers who have taken (and passed) the

certification test and received a stipend

from the school district, will these

teachers still be eligible for a stipend for

the additional 120 hours in ESOL ? Do

teachers have to pay the certification fee

to add th e K - 12 ESOL Subject Area coverage?

Answer: The payment of stipends to teachers

for completion of required in - service

points/hours is a local decision, based on

the District' s bargaining agreement. Yes,

the certification fee and application are

required to add the ESOL coverage.

Question #13:

Is there a " Grandfathering Clause " to

benefit those teachers who took the

initiative to get certified and obtained

K - 12 ESOL Subject Area coverage prior to

September 9, 2003?

Answer: There are no " grandfatheri ng "

provisions in the 2003 Modification to the

Consent Decree.

Question #14:

Do the new requirements apply to teachers,

administrators, and guidance counselors in

charter schools?

Answer: Yes, the new requirements as

stipulated in the Modification ap ply to

teachers, administrators, and guidance

counselors in charter schools. These

requirements apply to all teachers who

currently hold a valid Florida Teaching

Certificate and are assigned to teach

primary language arts instruction to

students classifie d as limited English

proficient. Any administrator or guidance

counselor in a charter school, who already

has a valid certificate, must also complete

the 60 points/hours in ESOL as required by

the Modification.

Question #15:

What is the definition of " school

administrator " ? To whom does this

requirement apply?

Answer: Any employee who has been hired by

the school district or charter school as an

administrator. That is, any employee whose

job classification requires certification in

an administrativ e class certificate, such as

the principal and the assistant principal.

1 4. Appended to the conclusion of the Technical Assistance

Paper was the following descriptive statement:

TECHNICAL ASSISTANCE (TA) PAPERS are

produced periodically by the Bureau of

Student Assistance to present discussion of

current topics. The TA Papers may be used

for in - service sessions, technical

assistance visits, parent organization

meetings, or interdisciplinary discussion

groups. Topics are identified by state

steering comm ittees, district personnel, and

individuals, program staff or program

compliance monitoring.

1 5. BOE has specific rulemaking authority over educator

certification pursuant to Subsection 1012.56(12), Florida

Statutes (2004) , and has specific rulemaking aut hority over

certification renewal pursuant to the provisions of Section

1012.585, Florida Statutes (2004) .

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

defines "rule" to mean, in relevant part:

[E] ach agency statement of general

applicability that i mplements, interprets,

or prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by

an existing rule.

1 7. FEA contends that the Technical Assistance Paper is a

"rule" within the meaning of Subsection 120.52(15), Florida

Statutes (2004) , because it purports to prescribe new, statewide

standards and criteria for maintaining ESOL certification, which

affect s the professional standing and employment opportunities

of FEA's members. FEA contends that, despite its meeting the

definition of a rule, the Technical Assistance Paper was not

promulgated in accordance with Subsection 120.54(1), Florida

Statutes (2004) . Further, FEA contends that, insofar as the

Technical Assistance Paper purports to prescribe certification

criteria at variance with those set forth in Section 1012.56,

Florida Statutes (2004) , it is an invalid exercise of delegated

legislative authority and violates Subsection 120.56(1), Florida

Statutes (2004) .

1 8. FEA argues that the challenged Technical Assistance

Paper clearly meets the quoted definition: it implements and

prescribes law or policy, and it imposes requirements not

specifically requir ed by statute or by any existing rule. FEA

accurately cites established case law holding that an agency

statement or policy is a rule " if its effect requires

compliance, creates certain rights while adversely affecting

others, or otherwise has the direct and consistent effect of

law." Jenkins v. State , 855 So. 2d 1219, 1225 (Fla. 1st DCA

2003); Department of Revenue v. Vanjara Enterprises, Inc. , 675

So. 2d 252, 254 - 255 (Fla. 5th DCA 1996). FEA concludes that the

Technical Assistance Paper affects the sub stantial rights of

ESOL teachers in Florida, because of its impact upon their

ability to maintain their certification.

1 9. BOE counters that the Technical Assistance Paper does

not meet the definition of a "rule" because it is merely an

informational docum ent explaining the terms of the new Consent

Order provisions. The Technical Assistance Paper does not

"implement, interpret or prescribe" law or policy and , of

itself , compels no compliance. It merely describes the terms of

the Stipulation Modifying Cons ent Decree approved by order of

the federal court. The provisions of the Federal Consent Order

are enforceable with or without the promulgation of a rule by

BOE. Even if the Technical Assistance Paper ceased to exist,

the requirements of the Federal Cons ent Order would be the same.

20. A side - by - side reading of the Stipulation Modifying

Consent Decree and the Technical Assistance Paper confirms BOE's

contention. While the Technical Assistance Paper provides

detailed explanations in a format more likely to be useful to

educational professionals than the language of the stipulation,

nothing in the Technical Assistance Paper imposes any

requirement not already set forth by the modified Federal

Consent Order .

2 1. FEA raises additional issues relating to t he central

problem raised by the above findings: BOE has entered into a

stipulation leading to a Federal Consent Order that is at

variance with the governing Florida S tatute s and BOE's own

rules. FEA is not a party to the Federal Consent Order , and

thus contends that it is not subject to the decree's provisions.

FEA argues that because the Consent Order cannot compel

compliance by non - parties, the Technical Assistance Paper does

prescribe law or policy and does compel compliance at least as

to FEA. Furt her, it compels compliance with terms that are at

variance with Section 1012.56, Florida Statutes (2004) , and

BOE's own rules.

2 2. BOE correctly notes that accepting FEA's arguments

would require entry of a final order that, in effect , if not by

its litera l terms, limits the scope of or entirely negates the

Federal Consent Order . Thus, the issues raised by FEA are

beyond the scope of this proceeding and the jurisdiction of this

tribunal. "A state administrative hearing is not the proper

forum in which to enforce a c onsent o rder entered by a f ederal

court. The proper forum for a determination of whether a

f ederal consent order has been violated is the federal courts."

Miccosukee Tribe of Indians v. South Florida Water Management

District , Case No. 96 - 3151 (DOAH November 19, 1996).

2 3. Conversely, a state administrative hearing is not the

proper forum in which to challenge the scope and effect of a

Federa l Consent Order . FEA raises significant issues concerning

the authority of BOE to settle a lawsuit in such a way as to

achieve results that are apparently beyond the scope of BOE's

delegated powers, and the effect of the F ederal Consent Order on

strangers to the lawsuit. However, an administrative action

pursuant to Subsection 120.56(4)(a), Florida Statu tes (2004) ,

contesting the validity of a Technical Assistance Paper that

merely explains the terms of the Federal Consent Order , does not

provide the vehicle for resolution of these issues.

CONCLUSIONS OF LAW

2 4. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.56(4), Fla . Stat . (2004) .

2 5. Petitioner has the burden of proof in a rule challenge

hearing under Subsection 120.56(4), Florida Statutes (2004) , to

establish that the c hallenged statement has the effect of a rule.

2 6. To reiterate, the term "rule" is defined in Subsection

120.52(15), Florida Statutes (2004) as:

[E] ach agency statement of general

applicability that implements, interprets or

prescribes law or policy o r describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by

an existing rule.

2 7. Subsection 120.56(4), Florida Statutes (2 004) , in

pertinent part, states:

[ A ] ny person substantially affected by an

agency statement may seek an administrative

determination that the statement violates

Section 120.54(1)(a). The petition shall

include the text of the statement or a

description of the statement and shall state

with particularity facts sufficient to show

that the statement constitutes a rule under

Section 120.52 and that the agency has not

adopted the statement by the rulemaking

procedure provided by Section 120.54.

2 8. The Te chnical Assistance Paper in question does not

impose any additional requirement or solicit information not

already required by the Federal Consent Order .

2 9. Therefore, the Technical Assistance Paper is not a

"rule" as defined by Subsection 120.52(15) , Florida Statutes

(2004) . It is not self - executing. It does not create or

adversely affect rights, and it does not have the direct and

consistent effect of law. Florida Education Association v.

Department of Education , Case No. 01 - 1724RU (DOAH July 25,

2001); Florida Public Employees Council 79, AFSCME v. Department

of Labor , Case No. 98 - 4706RU (DOAH February 23, 1999); Lawrence

v. Department of Health and Rehabilitative Services , Case

No. 95 - 5585RU (DOAH April 4, 1997), aff'd , 690 So. 2d 594 (Fla.

1st DCA 1997).

30. The Federal Consent Order and , therefore , the

Technical Assistance Paper that explains the terms of the

Federal Consent Order , establishes criteria for ESOL

certification that vary from the terms of Subsection 1012.56(4),

Florida Statutes (2004) . A state administrative hearing is not

the proper forum to challenge a Federal Consent Order .

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that FEA has not established that BOE's Technical

Assistance Paper i s a rule within the meaning of Subsection

120.52(15), Florida Statutes (2004) . Petitioner's challenge is

hereby dismissed.

DONE AND ORDERED this 15th day of September , 2005 , in

Tallahassee, Leon County, Florida.

S

LAWREN CE P. STEVENSON

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 o f the

Division of Administrative Hearings

this 15th day of September , 2005 .

ENDNOTES

1/ As originally written, the Technical Assistance Paper

arbitrarily alternates the term "in - service" with the term

"inservice ." For the sake of consistent usage, the term has

been corrected to read "in - service" throughout the document.

2/ The referenced timeline chart is simply a graphic

representation of the information provided in the text of the

Technical Assistance Paper and is not reproduced here.

COPIES FUR NISHED :

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Michael D. Kooi, Esquire

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Bureau of Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, FL 32399 - 0250

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 t he 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 Co urt 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.