STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALESIA J. MILLER and )

B. MITCHELL CRANDALL, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2910RU

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

FINAL ORDER

This matter came before the undersigned upon Petitioners' Petition For Administrative Determination that the statements contained in a February 6, 1993 letter from University Interim Vice President Sherman to University President Borkowski, and the latter's approval and immediate implementation thereof are rules as defined by statute and were not properly implemented.

APPEARANCES

For the Petitioner: Joseph R. Gillespie

Personal Representative 320-A Stadium Drive

Tallahassee, Florida 32304-3450

For the Respondent: Debra A. King, Esquire

University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether the subject letter from the University Vice President to the University President, and the letter's subsequent approval of and immediate implementation of the recommendations therein constitute improper rule making inconsistent with the requirements of Florida Statutes.

PRELIMINARY MATTERS

By Petitioner dated May 27, 1993, Joseph R. Gillespie, personal Representative of the Petitioner herein, Alecia J. Miller, Cristan Fadal, and

1. Mitchell Crandall, Student Body President, Student Senator, and Student Attorney General, respectively, protested a letter dated February 6, 1993 from the University's Interim Vice President for Student Affairs to the University President. This letter outlined a perceived situation relating to the University student government and the Petitioners herein, and made certain recommendations for the correction of those perceived difficulties which were

   subsequently approved and enacted by the President. The matter was thereafter referred to the Division of Administrative Hearings and assigned to the undersigned for hearing.

   
   

   Hearing was initially set for Tallahassee on June 21, 1993, but counsel for Respondent requested a continuance which was opposed by Petitioners. Before the hearing could be held, however, Respondent's counsel moved for a Summary Final Order, agreed upon by the parties hereto to allow the entry of a Final Order based upon stipulation between the parties as to the facts, and submittal of argument in writing. In the interim, Petitioner Fadal voluntarily withdrew as a party.

   
   

   Both parties submitted Proposed Final Orders containing Proposed Findings of fact which, in light of the agreed upon facts, are accepted and incorporated herein.

   
   

   FINDINGS OF FACT

   
   

   1. On February 6 & 7, 1993, Petitioner, Alecia J. Miller, was the President of the student body of the University of South Florida. Petitioner,

      B. Mitchell Crandall, was serving as student Attorney general, a student government office. Both incumbents received financial remuneration for their services.

      
      

   2. The University of South Florida, (USF), is an institution of higher education, located in Tampa, and a part of the Florida State University System. Its President, Francis T. Borkowski, is the chief administrative officer of the university and responsible for its overall operation and administration. He is delegated statutory authority and may, within that authority, exercise such functions and take such actions as are necessary to achieve educational and other goals of the institution.

      
      

   3. The student government at USF is an integral part of the University and is subject to the direction and control of the university President and other supervisors responsible for the administration of the university's function.

      
      

   4. On February 6, 1993, Barbara J. Sherman, Interim Vice President for Student Affairs at USF, in a letter to President Borkowski, communicated her concern over the "situation involving student government leaders and the Student Coalition." She noted the continuing efforts by her and her staff to

      facilitate a compromise of their differences by which the parties to the dispute could be brought together for solution and the lack of success those efforts had met with. She also noted that many of the concerns of the Student Coalition appeared valid and, noting the inability of the parties to agree upon any resolution of the problem, concluded that its continuing existence was contributing to an erosion of the academic climate for a substantial number of students involved on both sides of the issues. Vice President Sherman also concluded that administration intervention was necessary to restore an orderly environment which would be conducive to the educational business of the institution.

      
      

   5. To facilitate that end, Sherman recommended certain actions be taken by Borkowski which included the deactivation of certain functions of the executive branch of student government. On February 7, 1993, these recommendations were approved in total for immediate implementation by President Borkowski. As a result of that decision, the office of Student Body President and Vice President were immediately deactivated and the incumbents, including Petitioner Miller,

      were directed to vacate the student government offices. Borkowski's actions also included a scheduled termination of the appointment of cabinet officers, one of whom was the other Petitioner, Mr. Crandall. As a result of this action, Petitioners claim a significant decrease in the amount of monetary compensation they receive as student officers.

      
      

   6. Pursuant to the Constitution of the Student Body of the University of South Florida, the executive and legislative powers of the student body are vested in student officers including a president and student senators elected by a majority vote of the student body. The executive officer of the association, the Student Body President, has specific responsibilities which include the selection of student members of the University's activity and service, health, and athletic fee committees who act on the setting of student fees. Among other functions of the Student Body President are participation in the selection of student representatives to serve on various Board of Regents committees, and the selection of student representation in public employee bargaining negotiations involving the University.

      
      

   7. The student senate has limited authority over the allocation and expenditure of the student activity and service fund, subject to the veto of the University President. The student government association as a whole has been granted specific statutory rights and responsibilities which include the mandatory consultation of the University President with the association on proposed projects using capital improvement trust fund fees and other functions as well. Taken together, it is clear that the student government association serves as a representative body to negotiate with the University President on many issues.

      
      

   8. Sherman's letter to Borkowski also recommended the establishment of a commission on student governance " to be comprised of students with diverse interests and concerns along with appropriate faculty and administrative representatives." The proposed charge to this commission indicated a major consideration would be to "respond to the serious accountability issues identified through the several comprehensive university audits of student government operations. "

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

      
      

   10. Petitioners contend that the approval by President Borkowski of Sherman's recommendations and their implementation by directive constitutes rule making which did not follow the procedures set forth in Section 120.54, Florida Statutes.

       
       

   11. The burden of proof rests on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984; and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2nd DCA 1979).

       
       

   12. In order to prevail here, Petitioners are required to prove essentially three things in addition to their standing which, it is concluded, has been established. These are: (1) the existence of the agency action: (2) that the agency action comes within the definition of a "rule" as contained in

       Section 120.52(16), Florida Statutes; and (3) that the agency action was not adopted as a rule pursuant to the requirements of Section 120.54(7), Florida Statutes.

       
       

   13. Clearly Petitioners have established that the University President, acting in reliance on the recommendations of the Interim Vice President for Student Affairs, took action which impacted Petitioners and others. This leaves for resolution the question of whether that action constituted a rule within the statutory definition. It is clear that it does not.

       
       

   14. Section 120.52(16), Florida Statutes, defines a rules as:

       
       

       ... each agency's statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice require- ments of an agency, and includes any form which imposes any requirements or solicits any information not specifically required by statute or by an existing rule.

       
       

   15. Statements of "general applicability", as that term is used in Section 120.56(16), Florida Statutes, are "statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law". McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977).

       
       

   16. In this case the evidence of record, agreed to by both parties, indicates the action in issue here was a directive by the University President which had application limited to specific parts of the University's student government and which impacted only incumbents of limited elective or appointive student officers within the parameters of that body. It does not constitute the statement of "general applicability" of an agency which implements, interprets or proscribes law or policy. Instead, it is in the nature of an agency order of extremely limited application. As such, it does not constitute a rule and need not be promulgated through the rule making procedure outlined in Section 120.54(7), Florida Statutes. Likewise, it is not subject to challenge under the provisions of Section 120.535(2), Florida Statutes.

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

ORDERED THAT the Petition For Administrative Determination That Agency Statements Violate Section 120.535(1), Florida Statute, as it relates to the recommendatory letter dated February 6, 1993 by Interim Vice President Sherman to President Borkowski, and the latter's direction of February 7, 1993 accepting and directing the implementation of Sherman's recommendations is dismissed.

DONE and ORDERED in Tallahassee, Florida this 26th day of August, 1993.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1993.

COPIES FURNISHED:

Joseph R. Gillespie Personal Representative 320-A Stadium Drive

Tallahassee, Florida 32304-3450

Debra A. King, Esquire University of South Florida 4202 E. Fowler Avenue, ADM 250

Tampa, Florida 33620-6250

Noreen Segrest, Esquire Acting General Counsel University of South Florida ADM 250

4202 East Fowler Avenue Tampa, Florida 33620-6250

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 party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-002910RU

Orders for Case No: 93-002910RU