STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS W. TALMADGE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1372RU

)

THE SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 15, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Thomas W. Talmadge, pro se

7065 Southwest 46th Street Miami, Florida 33155

For Respondent: Phyllis O. Douglas, Esquire

Twila Hargrove Payne, Esquire

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132 STATEMENT OF THE ISSUES

Whether Petitioner, Thomas W. Talmadge, has standing to bring this rule challenge.

Whether the statements identified in the petition filed by Thomas W. Talmadge constitute an unpromulgated rule and an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On March 18, 1996, the Petitioner filed his "Petition" pursuant to Section 120.535, Florida Statutes, asserting that certain "practices adopted by motion" by the Respondent were unpromulgated rules within the meaning of Section 120.52(16), Florida Statutes, that should have been adopted as rules pursuant to Section 120.54, Florida Statutes. Thereafter, Respondent filed a motion to dismiss, asserting that Petitioner did not have standing to bring this rule challenge. The motion to dismiss was denied without prejudice to the right of the Respondent to contest the standing of the Petitioner at the formal hearing.

At the formal hearing, the Petitioner testified and presented the additional testimony of Lucy Margolis. Petitioner presented six exhibits, each of which was accepted into evidence. Respondent presented no exhibit and no witness.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for July 3, 1996. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Final Order.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida.

   
   

2. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners.

   
   

3. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action:

   
   

   A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various

   circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases.

   With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour.

   
   

4. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners.

   
   

5. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted:

   1. That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of

      $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee.

   2. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed.

      
      

6. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995.

   
   

7. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program.

   
   

8. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board.

   
   

9. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board.

   
   

10. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding pursuant to Sections

    120.535 and 120.57(1), Florida Statutes.

    
    

12. Petitioner has the burden of proving by a preponderance of the evidence that he has standing to bring this action and that the challenged agency statement meets the definition of a rule and has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Rule 28-6.08(3), Florida Administrative Code.

    
    

13. Section 120.535(1), Florida Statutes, requires that each agency statement defined as a rule under Section 120.52(16), Florida Statutes, be adopted by that agency pursuant to the rulemaking procedure provided by Section

1. , Florida Statutes, as soon as feasible and practicable. Section 120.535(2)(a), Florida Statutes, provides, in pertinent part, as follows:

   
   

   (2)(a) Any person substantially affected by an agency statement may seek an admini- trative determination that the statement violates subsection (1). A petition for an administrative determination of an agency statement shall be in writing and shall state with particularity facts sufficient to show:

   1. That the person is substantially affected by the statement.

   2. That the statement constitutes a rule under s. 120.52(16), in which case the petition shall include the text of the state- ment or a description of the statement.

   3. That the agency has not adopted the statement by the rulemaking procedure provided in s. 120.54.

1. The term "rule" is defined by Section 120.52(16), Florida Statutes, and, pertinent to this proceeding, provides:

   
   

   (16) "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 require- ment or solicits any information not speci- fically 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 interests of any person or any plan or procedure important to the public and which have no application

   outside the agency issuing the memorandum. ...

   
   

2. Respondent's motion to dismiss filed prior to the formal hearing asserted that Petitioner lacked standing to bring this challenge because he was not "substantially affected" by the alleged rule. The motion was denied prior to the formal hearing, but the issue as to standing was reserved for the formal hearing. Respondent also asserted that the challenged agency statements do not meet the foregoing definition of the term "rule".

   
   

3. Standing to challenge an alleged statement pursuant to Section 120.53(2)(a), Florida Statutes, is limited to "[a]ny person substantially affected by [the] agency statement." The Petitioner has the burden to establish that he has standing to bring this proceeding. See, State, Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979).

   
   

4. In order for a petitioner to establish standing, he must demonstrate that he has or will suffer an injury, or threat of injury, that is real and immediate. This injury, or threat of injury, cannot be speculative, nonspecific, hypothetical, or lacking in immediacy and reality. A petitioner

   must also demonstrate that his alleged interest is arguably within the zone of interest to be protected or regulated. See, All Risk Corporation of Florida v. State Department of Labor and Employment Security, Division of Workers' Compensation, 413 So.2d 1200, 1202 (Fla. 1st DCA 1982). Compare, Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 278 (Fla. 2nd DCA 1981), and Florida Optometric v. Department of Professional Regulation,

   567 So. 2d 928 (Fla. 1st DCA 1990). Petitioner has failed to establish that this alleged rule has or will have any effect at all on him or on his daughter. Consequently, it is concluded that Petitioner lacks standing to bring this proceeding.

   
   

5. Even if the Petitioner had the requisite standing, the challenged statements do not meet the definition found in Section 120.52(16), Florida Statutes, and consequently, are not unpromulgated "rules" in violation of Section 120.535, Florida Statutes. The challenged statements merely list local hearing officers who are approved to conduct proceedings required by collective bargaining agreement or by statute. These are not statements of "general applicability" as that term is used in Section 120.52(16), Florida Statutes, because they are not self-executory and they are not intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. See, McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977), Barkley v. Department of Labor and Employment Security, 10 FALR 5273 (1987), and Department of Highway Safety

1. Florida Police Benevolent Association, 400 So.2d 1302 (1st DCA) pet. rev. den. sub. nom. Florida Police Benevolent Association v. Department of Highway Safety, 408 So.2d 1093 (Fla. 1981).

   
   

   FINAL ORDER

   
   

   Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that this proceeding be, and the same hereby is, DISMISSED.

   DONE AND ORDERED this 15th day of July, 1996, in Tallahassee, Leon County, Florida.

   
   

   
   

   CLAUDE B. ARRINGTON, 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 15th day of July, 1996.

   
   

   APPENDIX TO FINAL ORDER, CASE NO. 96-1372RU

   
   

   The following rulings are made as to the proposed findings of fact submitted by the Petitioner.

   1. The proposed findings contained in paragraphs 1-9, 11 and 12 are adopted in material part by the Final Order or are subordinate to the findings made.

   2. The proposed findings contained in paragraphs 10, 14, 15, and 16 are unnecessary to the conclusions reached.

   3. The proposed findings contained in paragraph 13 correctly point out an error in the transcript. The portion of the transcript identified by paragraph

13 as Petitioner's response to the question has been accepted as his response. This response is subordinate to the findings made.

The proposed findings of fact submitted by Respondent have been adopted in material part by the Final Order or are subordinate to the findings made.

COPIES FURNISHED:

Mr. Thomas W. Talmadge 7065 Southwest 46th Street Miami, Florida 33155-4613

Phyliss Douglas, Esquire Twila Payne, Esquire Dade County School Board

1450 Northeast Second Avenue Number 403

Miami, Florida 32399-3000

Liz Cloud, Chief

Bureau of Administrative Code The Elliot Building

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

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: 96-001372RU

Orders for Case No: 96-001372RU