vs. ) CASE NO. 79-558RX
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, commencing on April 12, 1979, and continuing on April 16, 1979, in the Collins Building, Tallahassee, Florida. The issues for determination at the hearing were whether certain written documents used by the Florida State University and the Florida State University School of Music constitute rules within the meaning of the Administrative Procedure Act and, if so, whether such rules are an invalid exercise of delegated legislative authority within the meaning of Florida Statutes, Section 120.56.
For Petitioners: Jerry G. Traynham
For Respondent: Gerald B. Jaski
Charles S. Ruberg
The petitioners herein are all professors employed by the respondent Florida State University (FSU) as faculty members in the School of Music. Pursuant to a "petition for an administrative determination" filed with the Division of Administrative Hearings, petitioners seek a declaration that the written documents appended to the petition are rules within the meaning of the Administrative Procedure Act (APA) and, because they were not promulgated in
accordance with the APA, they constitute an invalid exercise of delegated legislative authority.
The respondent contends that the petitioners herein are not substantially affected persons within the meaning of F.S.120.56(I) and thus they lack standing to challenge said documents. By a motion to dismiss, respondent further contends that the instant proceeding constitutes a collateral attack upon final agency action and therefore the Division of Administrative Hearings lacks jurisdiction to entertain a rule challenge petition. Finally, respondent urges that the documents in question do not fall within the definition of a rule and are, in fact, specifically exempted from said definition. It is claimed that said documents constitute either internal management memoranda or the preparation or modification of either agency budgets or contractual provisions reached as a result of collective bargaining.
The five documents attached to the petition will be described in more detail below. Briefly, these documents are as follows:
The "Florida State University procedures" for the award of merit salary and other increases;
A portion of the School of Music bylaws;
A faculty roster form listing each faculty member of the School of Music with a space provided for an evaluation;
A form entitled faculty evaluation summary; and
The student instructional rating system (SIRS) interpretation
manual.
Each of these documents (Exhibits 1 through 5) were utilized by the respondent to determine merit pay increases for each of the petitioners for the 1978-79 school year. Unless amended prior to the evaluation process for the 1979-80 school year, each document will be utilized again in determining merit increases for faculty members of the School of Music.
Having been evaluated for merit salary increases under these documents in the past, with a more than reasonable likelihood of future use of the documents for future evaluations, petitioners have adequately demonstrated that they are substantially affected persons within the meaning of F.S.120.56. Not only has their present remuneration for their services been determined pursuant to these documents, their future annual salaries will be affected by the determination reached as a result of the original use of these documents. Unlike the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App. 1st, 1978), petitioners have illustrated that the impact of the challenged documents are continual, having both present and prospective impact.
Faculty members of a university have a substantial interest in the emoluments of their employment. Written documents which substantially affect that interest, if otherwise falling within the APA's definition of rule, can be challenged if a proper petition is filed pursuant to Section 120.56.
The respondent contends that the case of HRS v. Barr, 359 So.2d 503 (Fla. App. 1st 1978) bars the instant proceeding. That case held that Hearing Officers had no collateral review power over final agency action taken after regular proceedings under other provisions of the APA. The undersigned finds, and so concludes, that the Barr case, which dealt with a declaratory statement,
has no applicability to the facts of the present case. The present petition is not a collateral attack upon an adjudication of petitioners' rights by the agency. The documents in question do not constitute final agency action and the petitioners herein are not challenging the actual determinations of their merit pay. The petition challenges the documents which govern the procedure by which the merit pay increases are made, and the Hearing Officer limited all testimony to that issue. Testimony regarding the results of the evaluation process which occurred in May of 1978 and the manner in which that particular evaluation was conducted was not permitted. The petition alleged that the documents in question constituted rules within the meaning and intent of the APA and that they were substantially affected by said rules. Thus, the petition properly alleged a cause of action under Section 120.56.
Having found that the petitioners are substantially affected by the documents utilized by FSU to determine merit increases for faculty members, it now must be determined whether said documents constitute rules within the meaning and intent of the APA. The controlling statutory provision is F.S. 120.52(14), which reads in relevant part as follows:
'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, 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. The term also includes the amendment or repeal of a rule.
The term does not include:
(a) internal management memoranda which do not affect either the private interest of a person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum;
(c) the preparation or modification of:
agency budgets.
contractual provisions reached as a result of collective bargaining.
The first document challenged herein is entitled "Florida State University Procedures" and it contains procedures and guidelines for merit increases, equity increases, and other increases. It divides merit increases into two levels, defines the levels and prescribes, in general form, the procedures to be utilized in evaluating all members of the faculty for merit raises. A "Note" at the end of this document describes the document as FSU "internal procedures for implementing the Statement Concerning Merit and Other Salary Increases." This "Statement" is contained in the collective bargaining agreement between the Florida Board of Regents, State University System of Florida and the United Faculty of Florida. The document in question was created by a committee appointed by President Sliger of FSU. The task of the committee was to devise procedures for the distribution of discretionary funds. The procedures apply generally and equally to each segment of the University and to each faculty member. Other than the "Statement" referred to above, which simply sets forth the criteria by which to evaluate faculty members for merit salary increases, the only other reference in the collective bargaining agreement to salaries is contained in Article 23. Section 23.1(b)(2) simply refers to "discretionary increases in recognition of merit."
The document entitled "FSU Procedures" is an agency statement of general applicability that implements, interprets and prescribes law or policy. It sets forth the procedure to be utilized in the discretionary award of merit pay increases. Contrary to the assertions of respondent, this document does not fall within any of the relevant exceptions to the term "rule." Although the procedure is for use internally within the University, it affects the private interest of each faculty member in the compensation he or she receives for services performed for the University. Thus, it is not an "internal management memoranda" exception. While the Procedures do provide the method by which allocated and budgeted funds will be distributed, the document itself does not "budget" any of the funds. The testimony at the hearing was to the effect that these Procedures were created and posted prior to the University's budget submissions and that the budget division of FSU had no role in the creation of the document. Thus, this document cannot be considered as preparation or modification of an agency budget. Finally, the "FSU Procedures" do not fall within the exception for the preparation or modification of "contractual provisions reached as a result of collective bargaining." The document is not a "contractual provision." Although its contents refer to the collective bargaining agreement, the agreement itself only provides that the award of merit salary increases are to be discretionary with the University. Indeed, the testimony and documentary evidence adduced at the hearing illustrates that the Procedures were created and put into operation prior to the time that the collective bargaining agreement became effective. In and of itself, this agency statement purports to create certain rights and adversely affect other rights with regard to funds available for merit increases. See State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. App. 1st, 1977). This agency statement having general applicability that implements, prescribes and interprets the University's policy regarding award of discretionary merit increases is a rule within the meaning of the APA. The University having failed to properly promulgate said rule in accordance with F.S. 120.54, the document entitled "Florida State University Procedures" constitutes an invalid exercise of delegated legislative authority.
The next document for consideration is a portion of the bylaws of the School of Music at FSU. This consists of a set of directives which define the organization of a peer evaluation committee and prescribe the criteria and procedures under which that committee will evaluate faculty members of the School of Music and make recommendations to the Dean regarding merit raises.
The criteria to be considered are identical to the criteria already contained in either existing rules of the Board of Regents and FSU (F.A.C. Ch. 6C-5.05 and 6C2-4.33) or in the "statement" contained in the collective bargaining agreement. Thus, the criteria in the bylaws simply constitute a restatement of either existing rules or the contractual provisions of the collective bargaining agreement. The only relevant remaining portion of the bylaws is that portion which directs that the School of Music faculty advisory committee shall also sit as the peer evaluation committee for merit salary increases. This does not constitute an "agency statement of general applicability" within the definition of a rule. It is simply the statement of the School of Music, which is not an agency within the meaning of the APA. The FSU School of Music bylaws do not fall within the APA's definition of a rule.
The third document is a form or a worksheet consisting of a School of Music faculty roster with five spaces provided for the peer evaluation committee to rank each faculty member. Each committee member is directed to review the personnel file for each faculty member and, consistent with the established procedures and criteria, complete the worksheet which is then tabulated with the
results being communicated to the Dean in the form of a recommendation. A form may fall within the definition of a rule if it otherwise fits the definition and if it "imposes any requirement or solicits any information not specifically required by statute or by an existing rule." F.S. 120.52(14). This form is not an agency statement of general applicability and it does not impose requirements or solicit information not already required by existing rule or statute. It is simply a data collection device utilized by the School of Music to arrive at an evaluation of its faculty members' effectiveness in the traditional areas of professional activity as required by existing rules and the "Statement" contained in the collective bargaining agreement. It is not an "agency statement" within the definition of a rule.
The same rationale applies to the fourth and fifth documents under review herein. Both of these documents -- the "faculty evaluation summary" and the "SIRS interpretation manual" -- have been utilized by FSU for over five years to evaluate the overall performance and the teaching effectiveness of its faculty. They are not agency statements and the forms do not impose requirements or solicit information not already required by existing rule or statute. The areas of performance to be evaluated in the "faculty evaluation summary" are described in detail in existing Rules 6C-5.05(2) and 6C2-4.33, as well as in the collective bargaining agreement. The SIRS evaluation is specifically referred to in FSU Rule 6C2-4.33(1)(d) and is simply another tool to be utilized in the total evaluation process. These forms are not "rules" within the meaning and intent of the APA.
The undersigned Hearing Officer has carefully considered the legal arguments raised by the parties, both at the hearing and in written memoranda submitted subsequent to the hearing. To the extent that the legal arguments of the parties were deemed meritorious, they have been addressed herein. One final matter deserves treatment. At the close of the hearing, petitioners sought to publish and introduce into evidence certain answers to interrogatories, and the University sought to publish others completed by Dean Wiley Housewright. Dean Housewright was present throughout the hearing and was twice called as a witness. His testimony included a discussion concerning the subject of each interrogatory sought to be published. The proper time to delineate inconsistencies between his testimony and the answers to interrogatories, if any, was during the examination of this witness. Therefore, the requests of both parties to publish these responses to interrogatories are denied.
