STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA TEACHING PROFESSION ) NATIONAL EDUCATION ASSOCIATION, ) COLLIER COUNTY EDUCATION ) ASSOCIATION, COLLIER SUPPORT ) PERSONNEL - NATIONAL EDUCATION ) ASSOCIATION, )

)

Petitioners, )

)

vs. ) CASE NO. 89-0320RX

) SCHOOL BOARD OF COLLIER COUNTY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 27, 1989, at Tallahassee, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

For Petitioner: David Brooks Kundin, Esquire

Meyer, Brooks and Cooper, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

For Respondent: James H. Siesky, Esquire

Siesky and Lehman, P.A. 700 Eleventh Street South Suite 203

Naples, Florida 33940

On January 30, 1989, the Acting Director for the Division of Administrative Hearings entered an order stating that the petition filed in this rule challenge proceeding "appears to comply with the requirements of Section 120.56, Florida Statutes." After this determination was made, the Respondent filed a motion to dismiss based upon the petition's failure to meet the threshold requirements of Section 120.56, Florida Statutes. The motion was denied by the Hearing Officer, and the Petitioners were given the opportunity to drove whether they have standing during the formal hearing.

Prior to hearing, the parties were informed by the Hearing Officer that she would not rule upon the constitutional challenge set forth in the petition, as such issues are beyond the jurisdiction of the Division of Administrative Hearings. The parties were given the opportunity to preserve this issue for determination by an appellate court. During the hearing, factual stipulations entered into between the parties were placed into the record. The Petitioner called two witnesses and submitted three exhibits, which were admitted into

evidence. The Respondent relied upon the factual stipulations and cross- examination. Both parties requested an extension of the ten day deadline for the submission of Recommended Orders. The parties were given until March 15, 1989, and the orders were timely submitted by both parties on that date.

ISSUES

Whether the Petitioners have standing to institute a rule challenge proceeding under Section 120.56, Florida Statutes.

Whether a school board may delegate the authority to suspend an employee without pay to the superintendent in specific instances for a limited period of time.

FINDINGS OF FACT

1. The Petitioner, COLLIER COUNTY EDUCATION ASSOCIATION, (hereinafter CCEA) is the instructional bargaining unit for teachers in the Collier County School District.

   
   

2. The Petitioner, COLLIER SUPPORT PERSONNEL-NATIONAL EDUCATION ASSOCIATION, (hereinafter CSP-NEA) is the certified bargaining agent for the non-instructional employees of the Collier County School District.

   
   

3. The above mentioned Petitioners are affiliates of the Petitioner, FLORIDA TEACHING PROFESSION NATIONAL EDUCATION ASSOCIATION (hereinafter FTPNEA).

   
   

4. As a result of collective bargaining agreements which allow the Petitioners CCEA and CSP-NEA to represent specific categories of employees of the school district, sixty five to seventy per cent of these employees are represented by these associations..

   
   

5. The Respondent SCHOOL BOARD OF COLLIER COUNTY, (hereinafter SCHOOL BOARD) has a rule that delegates the authority to suspend employees wholly or partially without pay to the superintendent. Under Rule No. R-18/81, such a suspension cannot exceed a period of three days, and the superintendent's authority is limited to five situations which have been specifically set forth in the body of the rule. A suspension is authorized only if the superintendent finds that the employee has: a) been absent without leave, b) been insubordinate, c) endangered the health or well-being of a fellow employee or of a student or students, d) willfully neglected duty, e) been intoxicated, consumed an alcoholic beverage, or used a controlled substance (unless prescribed by a physician,) while working.

   
   

6. The rule cites Sections 230.23 and 230.33, Florida Statutes, as the authority for the implementation of this delegation process. The rule was adopted can December 17, 1981.

   
   

7. Rule No. R-18/81 requires that any employee suspended by the superintendent under this rule be given all due process rights under the Florida Statutes, including those authorized by the Administrative Procedures Act.

   
   

8. Pursuant to Rule No. R-18/81, the superintendent has suspended at least two employees in 1988. One of these employees is Mr. Robert Koy, who is represented by the Petitioner, CSP-NEA, in a proceeding currently before the Division of Administrative Hearings in which the employee's substantial interests are being determined.

9. The process and procedures utilized by the Respondent SCHOOL BOARD in its suspension of employees without pay falls within the general scope of interests and activities of all of the Petitioners in this case.

   
   

10. A substantial number of the members of the Petitioners CCEA and CSP- NEA are substantially affected by the challenged rule as it involves the disciplinary procedures used by the Respondent SCHOOL BOARD to manage its employees. Such procedures are included in the agreement between the Collier County Public Schools and the Petitioner CSP-NEA, which is in effect from October 1, 1987 through June 30, 1990. This agreement has been admitted into evidence in this proceeding.

    
    

11. The relief sought by all of the Petitioners in this proceeding is that Rule No. R-18/81 be declared invalid. This relief is an appropriate remedy for each of the Petitioners to seek on behalf of its members in a rule challenge proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter addressed by the Hearing Officer in this proceeding. Section 120.56, Florida Statutes; Cook v. Florida Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

13. The Petitioners CCEA and CSP-NEA have standing as associations to challenge the Respondent SCHOOL BOARD'S Rule No. R-18/81. In Florida Home Builders Association v. Department of Labor, 412 So.2d 351 (Fla. 1982), the Florida Supreme Court determined that an association has standing to institute a rule challenge proceeding under Section 120.56, Florida Statutes, as the representative of its members if the following three requirements are met: 1) A substantial number of the association's members must be substantially affected by the challenged rule; 2) The subject matter of the rule must be within the association's general scope of interest and activity; 3) The relief required must be of the type appropriate for the association to receive on behalf of its members. The Petitioners CCEA and CSP-NEA were able to demonstrate compliance with the three requirements of Florida Home Builders. The Petitioner FTPNEA did not prove at hearing that a substantial number of its members are substantially affected by the challenged rule. As allegations and proof of this element are required by Section 120.56, Florida Statutes, and Florida Home Builders, standing is denied to this Petitioner.

    
    

14. The question to be determined by the Hearing Officer in this rule challenge proceeding is whether the Respondent SCHOOL BOARD can delegate its authority to suspend an employee without pay to the superintendent for a specific period of time under expressed and limited situations. The Petitioners contend that the Respondent has unlawfully delegated authority to the superintendent in an invalid exercise of delegated legislative authority. The Respondent defends its delegation under Section 230.03(2), Florida Statutes, which permits a school board to "exercise any power except as expressly prohibited by the State Constitution or general law."

    
    

15. Section 120.52(8), Florida Statutes, defines an "invalid exercise of delegated legislative authority" as follows, in pertinent part:

    
    

    "Invalid exercise of delegated legislative authority" means action which goes beyond the

    powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if ... the rule enlarges, modifies, or contravenes the specific provisions of law implemented, citations to which are required by s.

    120.54(7).

    
    

16. In Section 230.23, Florida Statutes [1988], the Legislature sets forth specific powers and duties of school boards within the district school systems in Florida. This statute appears to restrict the general grant of power given to school boards in Section 230.03(2), Florida Statutes, as it requires that each school board act as a beard in she exercise of certain powers and the performance of specific duties. Subsection 230.23 (5)(f) of the statute requires that each school board, acting as a board, shall exercise all powers and perform all duties involved with the suspension of school employees. This language prohibits the delegation of employee suspensions to a superintendent because the general law mandates that such actions have to be performed as a board.

    
    

17. Although Section 230.23, Florida statutes, appears to grant exclusive authority to the school board in employee suspension matters, Section 230.33(7), Florida Statutes, grants the superintendent of schools the authority to suspend employees during emergencies for a period extending to an including the day of the next regular or special meeting of the school board. Accompanying the superintendent's authority to suspend an employee in an emergency situation is the requirement in the statute that the school board be notified immediately of such suspensions.

    
    

18. In Johnson v. School Board of balm Beach County, 403 So.2d 520 (Fla. 1st DCA 1981), the First District Court of Appeal reconciled the two statutes by reasoning that the Legislature intended that the superintendent's power to suspend be limited to emergencies, which are limited in duration to the next meeting of the school board. The school board then has the duty to take action on the matter. The purpose of this emergency provision is to immediately remove the employee from his or her position pending school board action.

    
    

19. In the Johnson case, the court was also required to address the issue of whether a superintendent who is suspending an employee in an emergency situation is able to suspend that employee without pay until the school board takes action on the matter. Upon consideration, and after reviewing the applicable statutes in pari materia, which included the predecessors to the current Section 230.23(5)(f), Section 231.36(6), and Section 230.33(7)(e) Florida Statutes, the court concluded that the Legislature intended to reserve to the school board the power to suspend employees without pay.

    
    

20. As the Legislature has not changed the substance of the statutes interpreted by the court in Johnson, the power to suspend an employee without pay in the situations described in Rule No. R-18/81 rests exclusively with a school board. Accordingly, the Respondent SCHOOL BOARD'S attempt to delegate the authority to suspend an employee wholly or partially without pay to the superintendent enlarges, modifies, or contravenes the specific provisions of law which govern the roles of the superintendent and the school board within the school district. As a result, the Respondent SCHOOL BOARD has adopted a rule which is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(c), Florida Statutes.

Based upon the foregoing, it is ORDERED:

That the authority granted by the school board to the superintendent in Rule No. R-18/81 is an invalid exercise of delegated legislative authority.

DONE AND ENTERED this 13th day of April, 1989, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1989.

APPENDIX TO FINAL ORDER IN CASE NO. 89-0320RX

Petitioner's proposed findings of fact are addressed as follows:

1. Paragraph one is accepted. See HO# 5.

2. The first sentence in paragraph two is rejected as it was not proved at hearing. The rest of the paragraph is accepted. See HO# 1, 2, 9 and 10.

3. Paragraph three is accepted. See HO# 5, and 8.

4. Accepted. See preliminary matters.

5. Accepted. See preliminary matters.

Respondent's proposed findings of fact are addressed as follows:

1. The Respondent's assertion that Petitioners did not prove standing is accepted as to Petitioner FTPNEA, and rejected as to Petitioners CCEA and CSP- NEA. See HO# 4, 9, 10, and 11, and Conclusions of law.

2. The Respondent's assertion that nothing in the applicable Florida Statutes prohibits a school board from delegating authority to suspend employees without pay to the superintendent is a conclusion of law and will be rejected as a proposed finding of fact in this proceeding.

COPIES FURNISHED:

David Brooks Kundin, Esquire Meyer, Brooks and Cooper, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

James H. Siesky, Esquire Siesky and Lehman, P.A. 700 Eleventh Street South Suite 203

Naples, Florida 33940

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures

Committee

120 Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTS RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-000320RX

Orders for Case No: 89-000320RX