17-005889RX Renya Jones vs. St. Lucie County School Board Status: Closed DOAH Final Order on Thursday, March 22, 2018.

Summary: Petitioner demonstrated that School Board rules provided no standards and placed unbridled discretion in the agency, and that rule 6.50*+ is vague, in violation of section 120.52(8)(d).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENYA JONES,

Petitioner,

vs. Case No. 17 - 5889RX

ST. LUCIE COUNTY SCHOOL BOARD,

Respondent.

_______________________________/

FINAL ORDER

On January 23, 2018, Administrative Law Judge Lisa Shearer

Nelson con ducted a final hearing pursuant to section 120.56,

Florida Statutes (2017), in Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Nicholas Wolfmeyer, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

For Respondent: Barbara L. Sadaka, Esquire

Legal Department

School District of St. Lucie County

7000 Northwest Selvitz Road

Port St. Lucie, Florida 34983

STATEMENT OF THE ISSUE S

The issues to be determine d in this proceeding are whether

St. Lucie County School Board (School Board) Rules 6.16 and

6.50 * are invalid exercises in delegated legislative authority

as defined by section s 120.52(8)(c), (d), and (e).

PRELIMINARY STATEMENT

On October 26, 2017, Petit ioner, Renya Jones, filed a

Petition to Determine Validity of School Board Rules 6.16 and

6.50* (Rule Challenge) . 1/ On November 1, 2017, Petitioner also

filed a motion to consolidate the R ule C hallenge with two

pending employment termination cases brough t by the School

Board, DOAH Case Nos. 17 - 4226TTS ( Termination I) and 17 - 5566TTS

( Termination II) . A s tatus c onference was conducted to address

scheduling, because the employment termination cases were

already scheduled to go forward on December 4, 2017, f ive days

past the statutory deadline for scheduling a rule challenge,

absent an agreement of the parties or good cause shown.

See § 120.56(1)(c), Fla. Stat. After discussion with the

parties, Termination I was severed from Termination II and the

Rule Cha llenge, and Termination I remained scheduled for hearing

on December 4, 2017. Termination II and the R ule Challenge were

consolidated for hearing and scheduled for hear ing on

January 23, 2018.

On January 5, 2018, the School Board moved for a

continuance , requesting that Termination II and the Rule

Challenge be continued until the issuance of the Recommended

Order in Termination I. 2 / The Motion for Continuance was denied

by Order dated January 16, 2018, and that same day the parties

filed witness and exh ibit lists, and a Joint Pre - h earing

Stipulation . The Joint Pre - h earing Stipulation contains a

limited number of factual stipulations for which no evidence at

hearing was required, and those stipulated facts are included in

the Findings of Fact below.

On J anuary 18, 2018, the School Board filed a Notice of

Voluntary Dismissal without Prejudice as to Termination II . As

a result , an Order Severing DOAH Case No. 17 - 5566TTS and Closing

File and Relinquishing Jurisdiction was issued on January 22,

2018, leaving only the Rule Challenge for hearing.

The hearing on the Rule Challenge proceeded as scheduled.

Petitioner testified on her own behalf and PetitionerÓs

Exhibits 1 - 9, 11 - 12, and 16 were admitted into evidence. The

School Board presented the testimony of A aron Clements, Director

of Human Resources, and RespondentÓs Exhibits 1 - 27 were

admitted. By agreement of the parties, the deadline for filing

proposed final orders was extended to March 2, 2018 . The

Transcript of the hearing was filed with the Division on

February 2, 2018 , and both partiesÓ Proposed Final Orders were

timely filed. All references to Florida Statutes are to the

2017 codification .

FINDING S OF FACT

1. Ms. Jones is currently an employee of the St. Lucie

County School Board , and has a profe ssional service contract

pursuant to section 1012.33, Florida Statutes . Her status with

the School Board is Ð suspended without pay, Ñ for reasons that

are not relevant to this proceeding.

2. As a classroom teacher, Ms. Jones is covered by the

Collective B argaining Agreement between the School Board of

St. Lucie County and the Classroom Teachers Association.

3. On June 13 , 2017, the School Board suspended Ms. Jones

without pay and on July 27, 2017, a Petition for Termination in

Termination I was referred t o the Division of Administrative

Hearings for an evidentiary hearing.

4 . At that point, while Ms. Jones remain ed an employee of

the School Board, she receive d no pay and no benefits from the

School District. She began to look for other employment to

su pport herself and her family.

5 . Ms. Jones applied to and was offered a job to work as a

music teacher by the Somerset Academy St. Lucie (Somerset).

Somerset is a charter school in St. Lucie County sponsored by

and located within the geographical bounds of the School

District and the jurisdictional bounds of the School Board .

Ms. Jones did not submit an application for leave and the School

Board did not approve a request for leave of absence in order

for Ms. Jones to work at Somerset.

6 . By letter dated August 28, 2017, Superintendent Gent

notified Ms. Jones of his intent to recommended to the School

Board that she be terminated for grounds in addition to the

already - existing suspension, i.e., for violating the School

BoardÓs Rules 6.16(1) ; 6.301 (2), (3 )(b)(i), (3)(b)(xix), and

(3)(b) (xxix); and 6.50 * . That letter became the basis for the

Termination II proceeding.

7. The factual bas i s for purs u ing the second termination

proceeding w as that Ms. Jones was working at Somerset without

having applied for and received approval for a leave of absence

from the School Board. The merits of the School BoardÓs

allegations in this second proceeding are no longer relevant in

terms of Ms. JonesÓ employment with the School Board, as the

School Board , through counsel , has represented that the School

Board no longer intends to pursue the allegations in Termination

II . The allegations are relevant and informative , however, in

establishing the School BoardÓs interpretation of its rules and

establishing Ms. JonesÓ standi ng to challenge the validity of

those rules. The evidence presented at hearing established that

Ms. Jones has standing to bring this rule challenge.

8. School Board r ule 6.16 is entitled ÐDual employment,Ñ

and provides as follows:

(1) No person may be e mployed to work in

more than one position in the school system

except upon the recommendation of the

Superintendent and approval of the School

Board.

(2) No employee shall accept other

employment that might impair the

independence of his or her judgmen t in the

performance of his or her duties.

9. Rule 6.16 lists as its statutory authority sections

1001.41, 1012.22, and 1012.33, Florida Statutes, and lists

sections 1001.43 and 1012.22 as the laws implemented. No

reference to authority granted by the Florida Constitution is

identified.

10. School Board Policy 6.50*+ is entitled ÐLeave of

Absence,Ñ and provides in pertinent part:

(1) Leave of absence. A leave of absence

is permission granted by the School Board

or allowed under its adopted policies for

an employee to be absent from duty for a

specified period of time with the right to

return to employment upon the expiration of

leave. Any absence of a member of the

staff from duty shall be covered by leave

duly authorized and granted. Leave shall

b e officially granted in advance and shall

be used for the purposes set forth in the

leave application. Leave for sickness or

other emergencies may be deemed to be

granted in advance if prompt report is made

to the proper authority.

(2) Length of Leave a nd Pay. Generally,

no leave or combination of leaves, except

military leave or WorkersÓ Compensation

Leave, will be granted for a period in

excess of one year. Illness - in - line - of -

duty leave may not be extended beyond the

maximum medical improvement date or a

maximum of two (2) years from the date of

injury, whichever is the earliest date.

Leave may be with or without pay as

provided by law, regulations of the State

Board, and these rules. For any absence

that is without pay, the deduction for each

day o f absence shall be determined by

dividing the annual salary by the number of

days/hours for the employment period.

(3) Employment leave. A leave shall not

be granted to any employee to accept other

employment unless the leave is to accept

employment at a charter school as provided

in paragraph (5) below. Accepting

employment while on a leave of absence

cancels the leave automatically. The

person on leave will be notified that he or

she must return to work with the School

Board immediately, resign or be terminated.

(4) The Superintendent shall develop

procedures to implement leave provisions.

(5) Charter School Leave. An employee may

be granted leave to accept employment at a

charter school in St. Lucie County in

accordance with the following provis ions:

(a) Teachers. Teachers may apply for

leave to work at a charter school.

The School Board will not require

resignation of teachers desiring to

work at a charter school. Teachers

granted such leave by the School Board

are not required to be on a continuing

or professional services contract and

shall not be subject to the seven (7)

continuous yearsÓ service requirement.

Should a teacher on leave elect to

return to work at the District, the

teacher shall return to the teacherÓs

former position or a comparable

position for which the teacher is

qualified.

* * *

(d) Method to Request Leave. An

application to request leave to accept

employment in a charter school shall

be submitted using the procedures

specified in Policy 6.501(1) . For ten

month i nstructional personnel, an

application to request leave to accept

employment at a charter school shall

be submitted to the principal at least

forty - five (45) days prior to the

first day of work for the school

year . . . .

(e) Insurance and Retirement

Ben efits. It shall be the sole

responsibility of the charter school

site to provide insurance and

retirement benefits to charter school

employees . . . .

* * *

(h) Notice of Intent to Return.

Employees on charter school leave

shall give the School Board written

notice of their intent to return at

least sixty (60) days prior to the

beginning of the semester they wish to

return.

(i) Requirement for Annual Renewal.

Char ter school leave must be renewed

annually. It is the sole

responsibility of the employ ee on

leave to submit an annual written

letter notice of leave to the

Superintendent or designee, and a copy

of the annual written letter notice of

leave to the employeeÓs school

principal or immediate supervisor, as

applicable, on or before April 1 of

eac h year if they wish to renew their

charter school leave for the following

school year. Employees who do not

submit the required annual leave form

on or before April 1 st will be

considered to have voluntarily

terminated their employment, and will

no longer be eligible for any benefits

or other consideration under this

leave policy. (Emphasis supplied.)

11 . Rule 6.50* lists sections 1001.41, 1012.22, and

1012.33 as its statutory authority, and lists sections 1001.43,

1002.33(12) (e) , 1012.22, 1012.61, 101 2.63, and 1012. 66 as the

law s it implements. No reference to authority granted by the

Florida Constitution is identified.

12 . Rule 6.50* provides that if a teacher working for the

School Board wishes to work at a charter school within St. Lucie

County, that teacher must apply for permission to do so.

However, the definition of a leave of absence in the first

paragraph of rule 6.5 0 * specifically provides that a leave of

absence allowed under the rule is for a specified period of time

Ðwith the right to return to employment upon the expiration of

leave.Ñ By its terms, the rule does not appear to encompass

those employees whose status is Ðsuspended without pay , Ñ given

that those employees who are suspended without pay do not

necessarily have the right to return to employment upon

expiration of leave.

13 . Rule 6.50* also provides that an application for

charter school leave shall be provided to the teacherÓs

principal at least 45 days before the beginning of the school

year . For teachers on suspension wi thout pay or who are not

assigned to a particular school , there is no principal to whom

the application can be given. The rule does not specify an

alternative. Instead, Mr. Clements stated that it would be up

to Ms. Jones (and presumably, anyone in her c ircumstance) to ask

where to submit an application for charter school leave.

1 4 . The School Board interprets rule 6.50* as applying to

all employees, regardless of their status.

1 5 . Rule 6.50* does not indicate what criteria would be

used for deter mining if an employeeÓs application for leave

should be granted. Mr. Clements testified that the decision is

made on a case - by - case basis. He also testified that had

Ms. Jones applied for charter school leave, he would not have

recommended that her reque st be approved, because as a teacher

on unpaid suspension, she is not in good standing with the

School District. Nothing in rule 6.50* alerts Ms. Jones, or

any other teacher in her circumstances, that her suspension

without pay would be a basis for disap proval of a n application

for charter school leave. Nothing in the rule alerts any

applicant of the criteria to be considered for the grant or

denial of a requested leave of absence.

1 6 . The consideration of a staff memberÓs current

disciplinary status i s not an unreasonable consideration for the

Superintendent or for the School District. It is not, however,

includ e d in the rule as a basis for deciding whether a request

for charter school leave should be approved or denied.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.56, 120.569, and 120.57(1),

Florida Statutes.

18 . Petitioner ha s standing to challenge the rules in this

p roceeding . Section 120.56 allows a person who is substantially

affected by a rule or agency statement to initiate a challenge.

To establish standing under the Ð substantially affected Ñ test, a

party must demonstrate that: 1) the rule will result in a real

and immedi ate injury in fact, and 2) the alleged interest is

within the zone of interest to be protected or regulated.

Jacoby v. Fl a . Bd . of Med . , 917 So. 2d 358 (Fla. 1st DCA 2005);

see also Fl a. Bd. of Med . v. Fl a. Acad . of Cosmetic Surgery ,

808 So. 2d 243, 250 ( Fla. 1st DCA 2002), superseded on other

grounds , Dep Ó t of Health v. Merritt , 919 So. 2d 561 (Fla. 1st

DCA 2006) .

19 . Petitioner ha s established that she is an

instructional employee of the School District, currently working

at a charter school within the School District, subject to

School Board rules. She is substantially affected by the

application of the rules to her and has standing to challenge

them.

20 . Petitioner is challenging existing, as opposed to

proposed, rules. Section 120.56(3) requires Pe titioner to prove

by a preponderance of the evidence that the existing rule s are

an invalid exercise of delegated legislative authority as to the

objections raised.

21 . Section 120.5 6(1)(a) provides that a person that is

substantially affected by a rule o r proposed rule may seek an

administrative determination of the invalidity of the rule on

the ground that the rule is an invalid exercise of delegated

legislative authority.

22 . Section 120.52(8) defines the term Ðinvalid exercise

of delegated legislative authority Ñ as follows:

(8) Ð Invalid exercise of delegated

legislative authority Ñ means action that

goes beyond the powers, functions, and

duties delegated by the Legislature.

A proposed or existing rule is an invalid

exercise of delegated legislative au thority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to whic h is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

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

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational ; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

b ut not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

autho rity to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency Ó s

class of powers and duties, nor shall an

agency have the authority to implement

statutory pr ovisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the speci fic powers and duties

conferred by the enabling statute.

23 . Generally, under the Administrative Procedure Act,

each agency rule must be accompanied by a reference to specific

rulemaking authority and a reference to the section of the

Florida Statutes or Laws of Florida being implemented,

interpreted, or made specific. § 120.54(3)(a)1., Fla. Stat.

ÐAfter adoption of a rule, the [agency] may not rely on

statutory provisions not cited in the proposed rule as statutory

authority.Ñ DepÓt of Child. & Fams. v. I.B. , 891 So. 2d 1168,

1172 (Fla. 1st DCA 2005)(quoting Fla. League of Cities v. DepÓt

of Ins. , 540 So. 2d 850, 865 (Fla. 1 st DCA 1989)).

24 . Section 120.81(1)( a) relieves school board s of some

rulemaking requirements generally imposed on state agencie s,

sta ting, Ðnotwithstanding s. 120.53 6(1) and flush left

provisions of s. 120.52(8), district school boards may adopt

rules to implement their general powers under s. 1001.41.Ñ

Section 1001.41 (2) provides that school boards shall adopt r ules

Ðpursuant to section 120.53 6(1) and 120.54 to implement the

provisions of law conferring duties upon it to supplement those

prescribed by the State Board of Education and the Commissioner

of Education.Ñ

25 . Taken together, these modifications of the rulemaking

proces s mean that the School BoardÓs rules may be adopted to

implement their general powers, and need not have the specific

authority required of other agencies engaging in rulema king.

Its rules must, however, still be circumscribed by the

definitions of invali d exercise of delegated legislative

authority contained in section 120.52(8).

2 6 . Here, the rules at issue identify both specific

authority and law implemented.

27 . Both rules list sections 1001.41, 1012.22, and 1012. 23

as providing statutory authority for the rules. The relevant

text of section 1001.41 is quoted at paragraph 23, above.

Section 1012.22 (2) authorizes the adoption of policies relating

to personnel leave, and specifically authorizes rule s related to

annual leave, sick leave, illness - in - t he - line - of - duty leave, an d

sabbatical leave. Section 1012.23(1) provides that Ðexcept as

otherwise provided by law or the State Constitution, district

school boards may ad opt rules governing personnel ma tters,

including assignment of duties, and responsib ilities for all

district employees. Ñ

28 . Both rules list sections 1001.43 and 1012.22 as law s

implemented. Section 1001.43 (11) authorizes school boards to

adopt policies and procedures necessary for the management of

all personnel of the school system.

2 9 . In addition, rule 6.50* lists sections

10 0 2.33(12)(e), 1012.61, 1012.63, 1012.64, and 1012.66 as laws

implemented. Section 1002.33(12)(e) provides:

Employees of a school district may take

leave to accept employment in a charter

school upon the approv al of the district

school board. While employed by the

charter school and on leave that is

approved by the district school board, the

employee may retain seniority accrued in

that school district and may continue to be

covered by the benefit programs of t hat

school district , if the charter school and

the district school board agree to this

arrangement and its financing. School

districts shall not require resignations of

teachers desiring to teach in a charter

school. This paragraph shall not prohibit

a d istrict school board from approving

alternative leave arrangements consistent

with chapter 1012.

30 . Section s 1012.61 , 1012.63, 1012.64, and 1012.66

address sick leave, illness - in - the - line - of - duty leave,

sabbatical leave, and provisions for leaves of ab sence,

respectively.

31 . There is no dispute that the School Board has ample

authority to adopt both rules at issue in this case.

Rule 6.16

32 . Petitioner challenges rule 6.16 (dual employment) as

vague, arbitrary , and capricious, and providing unbri dled

discretion to the School Board , in violation of section

120.52(8)(d) and (e) . She argues that the rule 6.16 is vague

because of its use of the term s Ðschool system,Ñ and Ðemployee.Ñ

33 . Petitioner contends that she is not an employee of the

Schoo l Board because she receives no pay or benefits while she

is suspended without pay. She continues to hold a professional

services contract with the District and is still covered by the

Collective Bargaining Agreement between the School Board and the

Class room Teachers Association. In her view, however, her

employment with the School Board has been terminated.

34 . Petitioner relies on Wright v. State , 389 So. 2d 662,

663 (Fla. 1 st DCA 1980). The decision in Wright is

distinguishable, in that it address ed whether a teacher who took

a voluntary leave of absence to run for school board was

required to surrender her continuing contract to run for re -

election to the school board in order to remain in compliance

with section 112.313(10), Florida Statutes (197 5) . The First

DistrictÓs decision that Wright was not an employee because she

received no pay or benefits during her voluntary leave of

absence did not address the statutory scheme for suspending or

dismissing instructional personnel. By contrast, sectio n

1012. 33 (6)(a) provides in part:

(6)(a) Any member of the instructional

staff . . . may be suspended or dismissed

at any time during the term of the contract

for just cause as provided in paragraph

(1)(a). The district school board must

notify the emplo yee in writing whenever

charges are made against the employee and

may suspend such person without pay ; but if

the charges are not sustained, the employee

shall be immediately reinstated, and his or

her back salary sh a ll be paid. If the

employee wishes to contest the charges, the

employee must, within 15 days after receipt

of the written notice, submit a written

reque st for a hearing. Such hearing shall

be conducted at the district school boardÓs

election in accordance with one of the

following procedures:

* * *

2. A hearing conducted by an

administrative law judge assigned by the

Division of Administrative Hearings . . . .

in accordance with chapter 120.

3 5 . H earings conducted pursuant to section 120.57(1) are

de novo proceedings, and are intended to formulate final agency

action, not to review action taken earlier and preliminarily.

Miles v. Fla. A . & M . Univ. , 813 So. 2d 242, 246 - 247 (Fla. 1 st

DCA 2002)(ÐFAMUÓs decision to discharge did not and could not

become final until after the formal admin istrative hearing had

taken place.Ñ); see also Fla. DepÓt of Transp. v. J.W.C. Co. ,

396 So. 2d 778, 785 (Fla. 1st DCA 1981) . Therefore, while the

School Board has admittedly taken steps to terminate

PetitionerÓs employment, including suspending her withou t pay

pending the resolution of her hearing in Termination I, that

action is not yet final. She remains a School District

employee.

3 6 . Rule 6.16 is not vague for failure to define

employment, especially in light of the statutory framework

governing the teaching profession.

3 7 . The same can be said for the use of the term Ðschool

system.Ñ Petitioner quotes to various provisions within section

1002.33, the statute authorizing charter schools, in support of

her contention that employees of a charter sch ool are not

employees within the school system. 3 / However, section 1002.02

identifies FloridaÓs ÐK - 20 education systemÑ in a global way,

consistent with section 1001.01(3), which provides that Ðthe

purpose of the Florida K - 20 Education Code is to provide by law

for a state system of schools, course, classes, and educational

institutions and services adequate to allow, for all FloridaÓs

students, the opportunity to ob tain a high quality education.Ñ

The Education Code addresses not only traditional public

s chools, but charter schools as well. 4/

3 8 . S ection 10 0 2.33(12) specifically addresses emp loyment

at charter schools, and section 10 0 2. 33(12)(e) authorizes

employees of a school district to take leave to accept

employment in a charter school upon the appro val of the district

school board. When reviewed in the context of these provisions,

there is no ambiguity caused by the use of the term Ðschool

systemÑ in rule 6.16.

3 9 . Petitioner also contends that rule 6.16 vests

unbridled d iscretion in the School Boa rd because it fails to

provide adequate standards for School Board decisions. Rule

6.16 simply provides that an employee may not be employed to

work in more than one position in the school system Ðexcept upon

recommendation of the Superintendent and appro val of the School

Board.Ñ

40 . There are few cases that actually address the

in validity of a rule based upon the failure to establish

adequate standards, or vesting unbridled discretion in an

agency. As stated by Cortes v. Board of Appeals , 655 So. 2d

132 , 138 (Fla. 1 st DCA 1995),

An administrative rule which creates

discretion not articulated in the statute

it implements must specify the basis on

which the discretion is to be exercised.

Otherwise the Ðlack of . . . standards

. . . for the exercise o f discretion vested

under the . . . rule renders it incapable

of understanding . . . and incapable of

application in a manner susceptible of

review.Ñ Staten v. Couch , 507 So. 2d 702

(Fla. 1 st DCA 1987). Because a reviewing

court Ðshall not substitute its judgment

for that of the agency on an issue of

discretion,Ñ £ 120.68(12), Fla. Stat.

(1983), an agency rule that confers

standardless discretion insulates agency

action from judicial scrutiny. By statute,

a rule or part of a rule that Ðfails to

establish adequate standards for agency

decisions, or vests unbridled discretion in

the agency,Ñ £ 120.52(8)(d), Fla. Stat., is

invalid.

41 . Rule 6.16 contains no standards to guide the

Superintendent in making his or her recommendation to the School

Board, or t o guide the School Board in making its decision , with

respect to any request for dual employment. While the reasons

that the Superintendent and the School Board typically consider

in making this decision may be valid and reasonable, the rule

itself contai ns no standards to guide an applicant in

considering whether to make a request for dual employment , or

for the Superintendent or School Board in deciding whether to

grant a request that is submitted. In this single respect, rule

6.16 is an invalid exercis e of delegated legislative authority

as defined in section 120.62(8)(d).

Rule 6.50*

4 2 . Petitioner contends that rule 6.50*, which governs

leaves of absence, is an invalid exercise of delegated

legislative authority as defined in section 120.52(8)(c) ,

assert ing that it contravenes or enlarges its statutory

authority because it is being applied to people who are not

employees of the School District.

4 3 . PetitionerÓs assertion is premised on her belief that

she is not an employee of the School District . However, as

noted above, it is found by the greater weight of the evidence

that she remains a school district employee. Nothing in the

rule itself indicates that it would apply to people who are not

School District personnel. PetitionerÓs challenge in this

respect stems from its application to her, as opposed to the

language of t he rule itself, and her challenge based upon

section 120.52(8)(c) has not been proven.

44 . Pe titioner also contends that rule 6.50* is invalid

because it is vague, does not contain adequate standards, and

vests unbridled discretion in the Supe rintendent and the School

Board.

45 . An administrative rule is invalid under section

120.52(8)(d) if it forbids or requires the performance of an act

in terms that are so vague that pe rsons of common intelligence

must guess at its meaning and differ as to its application.

Bouters v. State , 659 So. 2d 235, 238 (Fla. 1995) ; Sw. Fla.

Water Mgmt. Dist. v. Charlotte Cnty . , 774 So. 2d 903, 915

(Fla. 2d DCA 2001) ; State v. Peter R. Brown Cons tr., I nc. ,

108 So. 3d 723, 728 (Fla. 1st DCA 2013) ; see also Witmer v.

DepÓt of Bus. and ProfÓl Reg. , 662 So. 2d 1299, 1302 (Fla. 4th

DCA 1995).

46 . Petitioner has demonstrated by a preponderance of the

evidence that rule 6.50* is vague. The School Boa rd interprets

the rule, based upon its plain language (Ð[a]ny absence of a

member of the staff from duty shall be covered by leave duly

authorized and grantedÑ), to apply to all employees , which is

consistent with the statutes the rule implements . Yet, th e rule

also expressly state s that leave is granted Ðfor a specified

period of time with the right to return to employment upon

expiration of leave.Ñ An employee who is suspended without pay

pending a hearing to resolve a Petition for Termination has

littl e or no expectation that he or she will have a right to

return to the School Board. Ms. JonesÓ belief that the rule

could not apply to her, given her unpaid suspension, is

reasonable. Both interpretations are reasonable.

47 . Moreover, the rule provide s no met hod for

instructional employees who are not assigned to a school, such

as Ms. Jones, to file an application for leave. Mr. Clements

indicated that a teacher so situated should ask. However, the

point of the rulemaking process is to put people on notice so

that everyone has the same understanding of what is expected of

them. As currently written, this rule does not provide that

notice with respect to teachers, such as Ms. Jones, who are

still employed but not assigned to a particular school.

4 8 . Petitioner also challenges rule 6.50* because, like

rule 6.16, it does not contain adequate standards, and vests

unbridled discretion in the Superintendent and the School Board.

Petitioner has proven that rule 6.50* is an invalid exercise of

delegated legislative authority by a preponderance of the

evidence. The evidence presented established that rule 6.50*

does not provide any criteria by which applications for leave

will be evaluated, and Mr. Clements testified that app lications

are decided on a ca se - by - case basis. The evidence also

established that Mr. Clements would not have recommended that

leave be approved for Ms. Jones had she filed an application,

because he did not consider her to be in good standing. While

his decision is a reasonable one , there are no bounds to the

discretion accorded to either the Superintendent or the School

Board under this rule. In this respect, rule 6.50* is an

invalid exercise of delegated legislative authority as defined

in section 120.52(8)(d).

49 . Petitioner has not demonstrated that either rule is

arbitrary or capricious, in violation of section 120.52(8)(e).

50 . Section 120.595(3) mandates that Ð[i]f the appellate

court or administrative law judge declares a rule or a portion

of a rule invalid pursuant to s . 120.56(3) or (5), a judgment or

order shall be rendered against the agency for reasonable costs

and reasonable attorneyÓs fees, unless the agency demonstrates

that its actions were substantially justified or special

circumstances exist which would make t he award unjust.Ñ

Inasmuch as this Final Order determines that the proposed rule

is an invalid exercise of delegated legislative authority as

defined in section 120.52(8)( d ), Petitioner is entitled to a

hearing as to entitlement and, if entitled, the amou nt of any

reasonable fees and costs.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that rules 6.16(1) and 6.50* are invalid exercise s

of delegated legislative authority. Jurisdiction is retained

for the purpose of determining whether attorneyÓs fees and costs

are warranted and, if so, the amount. Any motion to determine

fees and costs shall be filed within 60 days of the issuance of

this Final Order.

DONE AND ORDERED this 22nd day of March , 2018 , in

Tallahassee, L eon 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 22nd day of March , 2018.

ENDNOTE S

1/ The School Board has a St. Lucie County School Board Policy

Manual which contains its policies, including the two at issue

h ere. While the School Board identifies them as policies, they

are, by definition, rules. § 120.52(16), Fla. Stat. For

simplicity, the policies are identified as rules throughout this

Order.

2/ At that time, the Proposed Recommended Orders in Terminati on

I had yet to be filed. On February 22, 2018, after the hearing

in this case, the Recommended Order in Termination I was filed,

recommending that Ms. JonesÓ employment be terminated. The

factual findings in that case have no bearing on the issues to

be determined in this proceeding, except to the extent that

Ms. JonesÓ employment status is relevant to her standing to

bring this Rule Challenge.

3 / Section 1002.33 is 30 pages long. Petitioner quotes a

handful of sentences from section 1002.33 witho ut identifying

the paragraph(s) within section 1002.33 where the quoted

language can be found.

4/ Not all provisions of the Education Code apply to charter

schools. Section 102.33(16) describes the parameters of the

exemptions afforded charter schools , as well as the provisions

with which they must comply.

COPIES FURNISHED:

Nicholas Wolfmeyer, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

(eServed)

Barbara L. Sadaka, Esquire

Legal Department

School Distric t of St. Lucie County

7000 Northwest Selvitz Road

Port St. Lucie, Florida 34983

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Wayne Gen t, Superintendent

St. Lucie Public Schools

4204 Okeechobee Road

Ft. Pierce, Florida 34947 - 5414

(eServed)

Ernest Reddick, Chief

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coor dinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judici al 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 administrative appeal with the

agency clerk of the Divisi on of Administrative Hearings within

30 days of rendition of the order to 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 mai ntains its headquarters or where a

party resides or as otherwise provided by law.