14-002205RX Donna A. Burney vs. State Board Of Education Status: Closed DOAH Final Order on Monday, July 7, 2014.

Summary: DOAH does not have jurisdction to consider challenge to rule 6B-4.009 because it is no longer in existence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA A. BURNEY,

Petitioner,

vs. Case No. 14 - 2205RX

STATE BOARD OF EDUCATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a final hearing was he ld in this case on

June 6 , 2014, in Tallahassee, Florida, before Lisa Shearer

Nelson, an administrative law judge appointed by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas A. ÐTadÑ Delegal, III, Esquire

Delegal Law Offi ces

424 East Monroe Street

Jacksonville, Florida 32202

For Respondent: David Jordan, Esquire

Paul Rendleman, Esquire

Matthew J. Carson, Esquire

Department of Education

32 5 West Gaines Street, Suite 1232

Tallahassee, Fl orida 32399

STATEMENT OF THE ISSUE

The issue to be determined is whether the Division of

Administrative Hearings has jurisdiction to determine whether

Florida Administrative Code Rule 6B - 4.009 is an invalid exercise

of delegated legislative authority in violation of section

120.52(8) (d) , Florida Statutes (2013).

PRELIMINARY STATEMENT

On May 14, 2014, Petitioner filed a Rule Challenge,

asserting that the definition of ÐincompetencyÑ contained in rule

6B - 4. 00 9 is vague, fails to establish adequate standards for

agency decisions, and vests unbridled discretion in the agency.

By Order of Assignment dated May 15, 2014, the case was assigned

to an administrative law judge, and that same day a Notice of

Hearing was issued schedulin g the case for hearing on June 6 ,

2014.

The original petition named Pam Stewart, Commissioner of

Education, as the Respondent. Respondent filed an unopposed

motion to substitute the State B oard of Education as the party -

R espondent, and the motion was granted May 23, 2014.

The parties f iled a Prehearing Stipulation which contains a

stipulation regarding agree d - upon facts that, where relevant,

have been incorporated into the Findings of Fact below. The

hearing commenced and was completed June 6 , 2014. Neither

Petitioner nor Respondent p resented any witnesses, and the

parties filed Joint Exhibits 1 - 7. No transcript was filed. The

parties filed Proposed Final Orders on June 16, 2014, which have

been carefully considered in the preparation of this Final Order.

FINDING S OF FACT

1. Petiti oner, Donna Burney (Petitioner or Ms. Burney), is

a teacher in Duval County. She is also the subject of an

Administrative Complaint in DOAH Case No. 13 - 4958PL, by which the

Educatio n Practices Commission seeks to discipline her educator

certificate pursua nt to section 10 1 2.795, Florida Statutes. The

Administrative Complaint allege s that Petitioner is incompetent

to teach or to perform duties as an employee of the public school

system or to teach in or operate a pr ivate school.

2. Respondent, the State Bo ard of Education, is the chief

implement ing and coordinating body of public education in

Florida. The Board adopted the rule which is the subject of this

proceeding.

3. At all times material to the issues alleged in the

Administrative Complaint in DOAH C ase No. 13 - 4958PL, Florida

Administrative Code Rule 6B - 4.009 was the rule applied in those

cases where alleged conduct forming the basis for dismissal from

employment or discipline against an instructorÓs license occurred

prior to the amendment to and tran sfer of the rule in 2012.

4. Rule 6B - 4.009 provide d definitions for the basis of

charges upon which a district school board c ould pursue a

dismissal action against instructional personnel. ÐIncompetencyÑ

is one of the bases for charges defined by rule 6B - 4.009.

Incompetency was defined as follows:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an ind ividual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

exi stence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the cl assroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability ; (3) lack of general educational

background ; or (4) lack of adequate command

of his or h er area of specialization.

5. The specific authority for and law implemented by the

rule are all provisions from chapter s 229 and 231, Florida

Statutes. Section 231.09, referenced in the rule, as well as all

of chapter s 229 and 231, were repealed in 20 02. § 1058, ch.

2002 - 387, Laws of Fla. At the time of rule 6A - 4.009Ós final

amendment in 1983, section 231.09, Florida Statutes (1983),

provided:

Members of the instructional staff of the

public schools shall perform duties

prescribed by rules of the sch ool board.

Such rules shall include, but not be limited

to, rules relating to teaching efficiently

and faithfully, using prescribed materials

and methods; recordkeeping; and fulfilling

the terms of any contract, unless released

from the contract by the sc hool board.

6. Prior to its repeal in 2002 , section 231.09, Florida

Statutes (2001), provided:

(1) The primary duty of instructional

personnel is to work diligently and

faithfully to help students meet or exceed

annual learning goals, to meet state an d

local achievement requirements, and to

master the skills required to graduate from

high school prepared for postsecondary

education and work. This duty applies to

instructional personnel whether they teach

or function in a support role.

(2) Members of the instructional staff of

the public schools shall perform duties

prescribed by rules of the district school

board. The rules shall include, but are not

limited to, rules relating to a teacherÓs

duty to help students master challenging

standards and mee t all state and local

requirements for achievement; teaching

efficiently and faithfully, using prescribed

materials and methods, including technology -

based instruction; recordkeeping; and

fulfilling the terms of any contract, unless

released from the contr act by the district

school board.

7 . The rule was not amended between 1983 and 2012 to

address the repeal of section 231.09. Nor was it amended to

provide new statutory authority or law implemented.

8. Rule 6B - 4.009 on its face applied to actions by di strict

school boards seeking to dismiss instructional personnel, as

opposed to cases brought by the Education Practices Commission

seeking to discipline certified educators. However,

administrative law judges ha ve referred to the definition of

incompetenc y in educator certificate discipline cases. While

section 1012.795(1) (c) authorizes discipline for incompetence,

rule s 6B - 4.009 and 6A - 5.056 appear to be the only rule s adopted

by the State Board of Education to define the term.

9 . Effective July 8, 201 2, rule 6B - 4.009 was transferred to

rule 6A - 5.056 and amended . Rule 6A - 5.056 presently defines

incompetency as follows:

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incap acity.

(a) ÐInefficiencyÑ means one or more of the

following:

1. Failure to perform duties described

by law;

2. Failure to communicate

appropriately with and relate to

students;

3. Failure to communicat e

appropriately with and relate to

colleagues , administrators,

subordinates, or parents;

4. Disorganization of his or her

classroom to such an extent that the

health, safety or welfare of the

students is diminished; or

5. Excessive absences or tardiness.

(b) ÐIncapacityÑ means one or more of the

following:

1. Lack of emotional stability;

2. Lack of adequate physical ability;

3. Lack of general educational

background; or

4. Lack of adequate command of his or

her area of specialization.

10. Petitioner has not challenged r ule 6A - 5.056 .

CONCLUSIONS OF LAW

1 1 . The Division of Administrative Hearings has

jurisdiction over the parties but not the subject matter of this

proceeding pursuant to section 120.56( 1) and ( 3), Florida

Statutes (2013).

1 2 . ÐAny person substantially affected by a r ule . . . may

seek a determination of the invalidity of the rule on the ground

that the rule is an invalid exercise of delegated legislative

authority.Ñ £ 120.56(1)(a), Fla. Stat. ; DepÓt of Fin. Svcs. v.

Peter Brown Construction, Inc. , 108 So. 3d 723, 725 (Fla. 1 st DCA

2013). Section 120.56(3)(a) provides that Ða substantially

affected person may seek an administrative determination of the

invalidity of an existing rule at any time during the existence of

the rule . Ñ (emphasis added) . The parties stipulat ed that this

proceeding is a challenge to an existing rule. (Prehearing

stipulation, p. 5). However, rule 6B - 4.009 has been transferred

and amended. More importantly, the laws providing specific

authority and law implemented have been repealed.

1 3 . Th is pr oceeding is a challenge to rule 6B - 4.009.

Petitioner has not challenged rule 6A - 5. 056, which is the

successor to rule 6B - 4.009. Accordingly, Petitioner would have

the burden of proving, by a preponderance of the evidence, that

rule 6B - 4.009 is an ex isting rule and is an invalid exercise of

delegated legislative authority with respect to the objections

raised. DepÓt of Health v. Merritt , 919 So. 2d 561, 564 (Fla. 1 st

DCA 2006); St. Johns River Water MgmÓt Dist. v. Consolidated

Tomoka Land Co. , 717 So . 2d 72, 76 - 77 (Fla. 1 st DCA 1998);

§ 120.56(3)(a), Fla. Stat.

1 4 . In Office of Insurance Regulation v. Service Insurance

Co. , 50 So. 3d 637 , 638 (Fla. 1st DCA 20 10), rev. denied , 63 So.

3d 750 (Fla. 2011), the First District considered a decision in

whi ch the administrative law judge found a rule of the Office of

Insurance Regulation related to arbitration to be invalid. In

reversing the final order, the Court stated:

Section 120.56(3)(a), Florida

Statutes (2008), sets forth the parameters

of an ALJ's jurisdiction to entertain a rule

challenge. It provides that "[a]

substantially affected person may seek an

administrative determination of the

invalidi ty of an existing rule at any time

during the existence of the rule ."

§ 120.56(3)(a) (emphasis added). This

statute does not authorize a rule challenge

to a rule that is no longer in existence.

See id.; DepÓt of Revenue v. Sheraton Bal

Harbour AssÓn, Ltd . , 864 So. 2d 454 (Fla.

1 st DCA 2003). Once a rule's enabling

statute is repealed, the rule itself

automatically expires. Canal Ins. Co. v.

ContÓl Cas. Co. , 489 So. 2d 136, 138 (Fla.

2d DCA 1986) (citing Hulmes v. Div. of Ret.,

DepÓt of Admin. , 418 So. 2 d 269 (Fla. 1 st

DCA 1982)). Therefore, even if the rule is

still in print, it is no longer effective

and does not meaningfully "exist."

We recognize that our sister court in Witmer

v. Department of Business and Professional

Regulation , 662 So. 2d 1299 (F la. 4 th DCA

1995), held that an expired rule could be

challenged as long as it was still being

applied to the petitioner. While this

holding may be a good policy, it does not

reflect the plain language of section

120.56(3) , which requires that a challenge

be initiated during the existence of the

rule. The plain language of the statute

makes this requirement an issue of timing

rather than substance.

See § 120.56(3)(a) ("A substantially

affected person may seek an administrative

determination of the invalidity of an

existing rule at any time during the

existence of the rule .") (emphasis added).

For this reason, we disagree with the Witmer

court and hold that the ALJ in the instant

case erred in reviewing the expired rule.

Because Appellee did not file its challenge

during the rule's eleven years of exi stence,

the challenge was too late, and the ALJ

should have declined to review it.

Consequently, we reverse.

1 5 . Besides the holding in Service Insurance Co mpany , the

repeal of chapter s 229 and 231 implicates section 120.536(2),

which provides:

( 2) Un less otherwise expressly provided by

law:

(a) The repeal of one or more provisions of

law implemented by a rule that on its face

implements only the provision or provisions

repealed and no other provision of law

nullifies the rule. Whenever notice of th e

nullification of a rule under this

subsection is received from the committee or

otherwise, the Department of State shall

remove the rule from the Florida

Administrative Code as of the effective date

of the law effecting the nullification and

update the h istorical notes for the code to

show the rule repealed by operation of law.

(b) The repeal of one or more provisions of

law implemented by a rule that on its face

implements the provision or provisions

repealed and one or more other provisions of

law nul lifies the rule or applicable portion

of the rule to the extent that it implements

the repealed law . The agency having

authority to repeal or amend the rule shall,

within 180 days after the effective date of

the repealing law, publish a notice of rule

dev elopment identifying all portions of

rules affected by the repealing law, and if

no notice is timely published the operation

of each rule implementing a repealed

provision of law shall be suspended until

such notice is published.

(c) The repeal of one or more provisions of

law that, other than as provided in

paragraph (a) or paragraph (b), causes a

rule or portion of a rule to be of uncertain

enforceability requires the Department of

State to treat the rule as provided by

s. 120.555 . A rule shall be considered to

be of uncertain enforceability under this

paragraph if the division notifies the

Department of State t hat a rule or a portion

of the rule has been invalidated in a

division proceeding based upon a repeal of

law, or the committee gives written

notification to the Department of State and

the agency having power to amend or repeal

the rule that a law has been repealed

creating doubt about whether the rule is

still in full force and effect. (emphasis

added).

1 6 . This directive in section 120.536(2) was created in

2012, and became effective May 27, 2012. Ch. 2012 - 31, Laws of

Fla. Therefore, after considerat ion of section 120.536 and the

decision in Office of Insurance Regulation v. Service Insurance

Co mpany , the Division does not have jurisdiction to consider the

merits of PetitionerÓs challenge to rule 6B - 4.009.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that PetitionerÓs challenge to rule 6B - 4.009

be dismissed.

DONE AND ORDERED this 7th day of July , 2014 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th da y of July , 2014 .

COPIES FURNISHED:

T. A. Delegal, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

Paul Nathan Rendleman, Esquire

Department of Education

325 West Gaines Street , Suite 1232

Tallahassee, Florida 3239 9

Gary Chartrand, Chairman

State Board of Education

Turlington Building, Suite 1520

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Stre et

Tallahassee, Florida 32399 - 0400

Liz Cloud, Program Adm inistrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

Mr. Ken Plante, Coordinator

Joint Admin i strative Proced ural Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

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 proceedi ngs are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order t o be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provide d by law.