STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RHC AND ASSOCIATES, INC.,
Petitioner,
vs.
HILLSBOROUGH COUNTY SCHOOL BOARD,
Respondent.
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) Case No. 02-3138RP
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FINAL ORDER
Pursuant to notice, a formal hearing was held in this case on September 11, 2002, in Tallahassee, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Joseph W. J. Robinson, President
RHC and Associates, Inc. Post Office Box 4505 Tampa, Florida 33677
For Respondent: W. Crosby Few, Esquire
Few & Ayala
501 East Kennedy Boulevard Suite 1401
Tampa, Florida 33602 and
Jason L. Odom, Esquire Thompson, Sizemore & Gonzalez
501 East Kennedy Boulevard Suite 1400
Tampa, Florida 33602
ISSUE PRESENTED
The issue is whether the proposed policies and summaries of procedures in Sections 7.29 through 7.33 of the Hillsborough County School Board Policy Manual are invalid exercises of delegated legislative authority.
PRELIMINARY STATEMENT
On August 9, 2002, Petitioner filed a petition with the Division of Administrative Hearings (Division) requesting a determination that the proposed policies and summaries of procedures in Sections 7.29 through 7.33 of the Hillsborough County School Board Policy Manual (Policy Manual) are invalid exercises of delegated legislative authority. Those sections of the Policy Manual -- hereafter "the Proposed Rules" -- were approved by the Hillsborough County School Board (School Board, District, or Respondent) at its meeting on July 30, 2002.
On August 13, 2002, this case was assigned to the undersigned to conduct a formal hearing on the petition.1 Consistent with the expedited timeframe established by Section 120.56(1)(c), Florida Statutes, the hearing was held on September 11, 2002.
At the hearing, Petitioner presented the testimony of Joe Robinson, a professional engineer and Petitioner's majority owner. Petitioner's Exhibits P1 through P10 were received into evidence.2 At the hearing, Respondent presented the testimony of
Tom Blackwell, the School Board's Director of Planning and Construction, and Jack Davis, the School Board's Assistant Superintendent for Operations. Respondent's Exhibits R1 and R2 were received into evidence.
Official recognition was taken of the following authorities: Rule 6-2.001, Florida Administrative Code; Section
of the State Requirements for Educational Facilities (SREF), 1999 edition; the Recommended Order issued in DOAH Case No.
02-2230BID; and Sections 287.055 and 287.017, Florida Statutes.
Petitioner was not represented by an attorney at the hearing. Mr. Robinson, Petitioner's majority owner, was authorized to appear as the qualified representative for Petitioner by Order dated August 27, 2002. See Rule 28-106.106, Florida Administrative Code.
The Transcript of the hearing was filed with the Division on September 25, 2002. The parties were given 10 days from the date the Transcript was filed to file their proposed final orders. See Rule 28-106.216, Florida Administrative Code. The parties' proposed final orders were given due consideration by the undersigned in preparing this Final Order.
FINDINGS OF FACT
Based upon the testimony and evidence received at the hearing, the following findings are made:
Parties
Petitioner is an engineering firm. Joe Robinson, a professional engineer, is the majority owner and president of Petitioner.
Petitioner is a "small business" as defined in Section 288.703, Florida Statutes. Petitioner is also certified as a minority-owned business by the State of Florida and the School Board.
Petitioner has performed engineering work on projects for the School Board in the past, and has expressed interest in performing such work for the School Board in the future.
Respondent is a local school district, and is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants' Competitive
Negotiation Act (CCNA).
Background
Prior to the Proposed Rules, the School Board's only adopted policy or procedure relating to the acquisition of professional services was Section 7.14 of the Policy Manual. That section does not specifically reference the CCNA; it simply
authorizes the superintendent or his or her designee to "contract for professional or educational services to complete projects or activities authorized or approved by the school board."
The only description of the School Board's existing procurement process under the CCNA is in a document entitled "Capital Projects Standard Procedures." That document was presented to but never adopted by the School Board, and it provides only a general outline of the procurement process.
The procedures utilized by the School Board to procure professional architectural, engineering, and construction management services have been the subject of considerable review and some criticism over the past year.
In February 2002, Mr. Robinson, on behalf of the Black Business Union, provided the School Board with a list of concerns related to the School Board's selection process, including:
Selection criteria does not comport to requirements of F.S. 287.055 (i.e., points for utilizing certified minority firms, volume of work, etc.)
[School Board] practices fail to follow the requirements of Chapter 4, SREF, Volume #1, and have not been adopted through any determinable policy or procedure.
Compliance with [School Board] Policy 7.14 Purchasing Policies and Bidding, has not
been followed. (Designees are exempt from nepotism and favoritism policy)
On May 17, 2002, the Ernst & Young consulting firm submitted to the School Board a report summarizing the findings and recommendations of its "forensic evaluation and analysis of the District's construction and maintenance policies, practices, and procedures." At the request of the School Board staff,
Mr. Robinson provided comments to Ernst & Young in connection with the evaluation.
The Ernst & Young report was critical of many aspects of the School Board's procurement, construction, and maintenance policies, practices, and procedures. With respect to the procurement of architectural and engineering services, the report included the following assessment which is pertinent here:
Our review of [the District's] vendor's [sic] selection process indicates, in many respects, that the process follows traditional requirements established by SREF and Florida Statute [sic]. Furthermore, in many instances, the procedures mirror those utilized by peer and contiguous school districts. However, we have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services.
* * * Interviews with the A/E/C
[architectural/engineering/ construction]
community have indicated that the vendor selection process is generally understood by the professional community. However, the architects and construction managers within the community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility.
* * *
E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible
influence from senior [District] Administrators or Board Members.
* * *
Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . .
Ernst & Young Report, at 27-29, 107 (emphasis supplied).
The report included the following recommendations relevant to the procurement of architectural and engineering
services:
The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee.
Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. Moreover E&Y recommends that the District augment its vendor selection committees with community members, business leaders, school
principals, and other external stakeholders as appropriate. In conjunction, [the District] should also increase its rotation of the selection committees [sic] members to eliminate possible influence from senior Administrators or Board Members.
Ernst & Young Report, at 117.
On July 31, 2002, Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, submitted a report based upon its "best financial management practices" review of the School Board pursuant to Section 230.23025, Florida Statutes (2001).
Unlike the Ernst & Young report, the Gibson report was not critical of the District's procurement process for professional services. Indeed, the report concluded that the District "has an efficient school planning and construction operation" (Gibson Report, at 6 and 10-1), and that it is utilizing best management practices in procuring professional services. Id. at 13 and 10-34 through 10-35.
The Gibson report stated that "[t]he district can demonstrate that procedures for selection were in compliance with Subsections 287.055 and 235.211, Florida Statutes, and that the committee screened written applications in order to select an appropriate number of professionals to be interviewed and that selected candidates were interviewed." Id. at 10-34 (emphasis supplied). The Gibson report also noted that the
district can demonstrate that the interview committee considered the factors described in Section 287.055, Florida Statutes, including minority business status. Id.
The Gibson report did not acknowledge or address the shortcomings in the evaluation process detailed in the Ernst & Young report. The Gibson report did acknowledge that "[t]he state statute [Section 287.055] encourages objectivity," but it nevertheless concluded that the School Board’s existing procurement process is "an effective hybrid of objectivity and subjectivity." Id. at 10-35. Aside from that conclusion, the results of both studies are consistent with the findings and conclusions in the Recommended Order in DOAH Case No.
02-2230BID.
DOAH Case No. 02-2230BID involved a challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in response to a recommendation in the Ernst & Young report that the School Board supplement its in-house staff with contract architects or engineers to provide more on-site supervision and inspection of construction projects. Petitioner in this case was also Petitioner in DOAH Case No. 02-2230BID.
The Recommended Order in DOAH Case No. 02-2230BID concluded (consistent with the Gibson report) that "the School Board's current selection process, although not detailed in a formally-adopted rule or policy, is consistent with the
procedural requirements of the CCNA." See DOAH Case No. 02- 2230BID Recommended Order, at 35 (emphasis supplied). However, the Recommended Order also concluded (consistent with the Ernst & Young report) that the evaluation of consultants was arbitrary and contrary to competition because the factors upon which the evaluation would be made and the weight afforded to each factor was not specified in advance and because the committee members did not utilize a uniform method of evaluation. Id. at 36.
Based upon the conclusion that the RFQ specifications were arbitrary and contrary to competition, the Recommended Order recommended that:
the School Board issue a final order that rescinds the [RFQ] and reformulates the specifications of the request in a manner that, at a minimum, advises potential respondents in advance of the factors upon which the responses will be evaluated and the weight that will be uniformly given to each factor by the selection committee.
DOAH Case No. 02-2230BID Recommended Order, at 37.
The Recommended Order in DOAH Case No. 02-2230BID was issued on September 6, 2002. The record does not reflect whether the School Board has issued its final order in that case yet.3 As of the date of this Order, the final order in DOAH Case No. 02-2230BID had not been filed with the Division in accordance with Section 120.57(1)(k), Florida Statutes.
Rulemaking Process
In response to the Ernst & Young report and Petitioner's challenge to the RFQ specifications in DOAH Case No. 02-2230BID, the School Board initiated the rulemaking process to formalize and improve its competitive procurement procedures under the CCNA.
The Proposed Rules were drafted by Tom Blackwell, the School Board's Director of Planning and Construction, and the School Board's attorney. The Proposed Rules were reviewed by an engineer on Mr. Blackwell's staff.
The language of the Proposed Rules was derived from the procurement policies used by other local school boards, the State University System, and other governmental entities. Copies of those other policies were not introduced at the hearing.
The Proposed Rules were first considered by the School Board at its meeting on June 18, 2002.
The record does not include a copy of the notice that was provided for the June 18, 2002, meeting. Typically, however, the agenda of the meeting is provided to the press and posted on the School Board's website. The agenda includes only the general subject-matter of the agenda items (i.e., "procurement of professional services") and not their substance.
The Proposed Rules were an "off-agenda item." They did not appear on the published agenda, so the first public notice that the Proposed Rules would be considered at the June 18, 2002, meeting may have been at the meeting itself.
Petitioner (through Mr. Robinson) was aware that the Proposed Rules would be considered at the June 18, 2002, meeting. Mr. Robinson attended the meeting and provided extensive comments on the Proposed Rules.
Copies of the Proposed Rules were apparently available at the June 18, 2002, meeting, because Mr. Robinson annotated his copy of the Proposed Rules (Exhibit P3) as he provided his comments to the School Board.
At the conclusion of the June 18, 2002, meeting, the School Board authorized its staff to "go forward" with the Proposed Rules.
Based upon that authorization, notices were published in local newspapers on June 27 (The Courier), June 28 (La Gaceta), June 29 (Tampa Tribune), and July 5, 2002 (Florida
Sentinel-Bulletin). The notices were published in the legal advertisement sections of the papers.
The notices stated in relevant part:
In compliance with the Administrative Procedure Act, Chapter [sic] 120.54 of the Florida Statutes, 1978 [sic], and the School Board of Hillsborough County's policies, the public is hereby notified of the following
amendment to the School Board's Policy Manual: 7.29 Acquisition of Professional Services, 7.30 Public Announcement, 7.31 Competitive Selection, 7.32 Competitive Negotiation, and 7.33 Standardized Agreements.
Anyone challenging the above affected Policy/Summaries of Procedures is requested to do so in writing and mail or deliver to the address listed below within twenty-one
(21) days of this notice. The public hearing is scheduled for July 30, 2002, 6:00 p.m., in the Board Room, Raymond O. Shelton School Administrative Center, 901 East Kennedy Boulevard.
Copies of the affected Policy/ Summaries of Procedures, which have no appreciable economic impact on the school system, are available for inspection and copying at the office of the Superintended of Schools, Hillsborough County School Administrative Center.
The notices did not identify the specific authority or law implemented by the Proposed Rules. However, that information was included on the copies of the Proposed Rules available at both the June 18 and July 30, 2002, School Board meetings.
On July 11, 2002, Mr. Robinson sent a letter on behalf of Petitioner to the School Board requesting "a Public Workshop pursuant to Florida Statute 120.54(2)(c)" or an explanation from the agency head as to why such a workshop is unnecessary.
On July 19, 2002, the chairwoman of the School Board responded to Mr. Robinson's letter and stated that a workshop
was determined to be unnecessary because a public hearing was already scheduled on the Proposed Rules for July 30, 2002. The chairwoman also noted that the School Board staff had met with Mr. Robinson on a number of occasions to discuss the procurement policy, and that Mr. Robinson appeared at the June 18, 2002, meeting where he presented his recommendations on the policy.
The chairwoman invited Mr. Robinson to submit written comments to the School Board prior to the July 30, 2002, public hearing, and to make an oral presentation to the School Board at the public hearing.
On July 25, 2002, in response to the invitation in the chairwoman's letter, Petitioner (through Mr. Robinson) submitted a comprehensive procurement policy for the School Board's consideration. The policy was submitted as an alternative to the Proposed Rules.
Petitioner's proposed policy (Exhibit P7) tracks the language of Section 287.055, Florida Statutes. It also includes the prohibition against contingent fees and the exemption for reuse of existing plans which are in the statute but were not restated in the Proposed Rules. Petitioner's proposed policy also includes a detailed explanation of the selection process, instructions for the evaluation of applicants (including criteria to be considered in the evaluation and the process for awarding points for those criteria), and forms to be used by
applicants and scoring sheets to be used by the evaluation committee.
The School Board held a public hearing on the Proposed Rules at its July 30, 2002, meeting. Mr. Robinson attended the meeting and provided comments on each of the Proposed Rules.
The minutes of the July 30, 2002, meeting reflect that at least one other professional, an architect, appeared and provided comments on the Proposed Rules at the public hearing.
At the conclusion of the public hearing, the School Board voted unanimously (six to zero) to approve the Proposed Rules.
The version of the Proposed Rules approved by the School Board on July 30, 2002, included several of the changes previously recommended by Mr. Robinson. Those changes are discussed below.
On August 9, 2002 (10 days after the School Board's July 30, 2002, meeting), Petitioner filed a petition with the Division requesting a determination that the Proposed Rules are invalid exercises of delegated legislative authority.
Substance of the Proposed Rules
The Proposed Rules create Sections 7.29 through 7.33 of the Policy Manual. The complete text of the Proposed Rules is included in the Appendix to this Final Order.
Each section of the Policy Manual has two parts, a "policy" statement and a "summary of procedures" that implement the policy. The Proposed Rules follow that same pattern. Accordingly, the "policy" and the "summary of procedures" must be read together.
The specific authority cited for the Proposed Rules is Sections 230.03(2), 230.22, 230.23, 235.211, and 230.23005, Florida Statutes.
The law implemented by the Proposed Rules is Sections
235.211 and 287.055, Florida Statutes.
The procedural aspects of the Proposed Rules are essentially the same as the practice followed by the School Board in the past as detailed in the Recommended Order in DOAH Case No. 02-2230BID.
Proposed Section 7.294 establishes the general policy that professional architectural, engineering, landscape architectural, land surveying, or construction management services will be procured in accordance with the CCNA. The School Board's Operations Division is assigned the responsibility for administering the procurement process.
Proposed Section 7.30 establishes the public announcement requirements for acquisitions of professional services on projects with construction costs in excess of
$250,000 or professional service fees in excess of $25,000. Those are the same thresholds in the CCNA.
The public announcement must include "a general description of the project and must indicate how interested consultants may apply for consideration." The announcement is required to be published in the Tampa Tribune, La Gaceta, the Florida Sentinel Bulletin, and another paper whose circulation is in the vicinity of the project.
Proposed Section 7.31 outlines the competitive selection process. It requires firms interested in providing services to the District to be certified as being qualified to render the required service, and provides a non-exclusive list of factors to be used in determining whether the firm is qualified.
Proposed Section 7.31 also creates the Professional Services Selection Committee (Committee) that is responsible for evaluating and ranking prospective providers of professional services. The Committee is chaired by the Assistant Superintendent of Operations, and the other members of the Committee are specified.
The Committee is responsible for evaluating materials submitted by interested firms, conducting interviews, hearing presentations, and ranking applicants. The evaluation criteria "shall" include:
the ability of professional personnel; whether the firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the District, and such other factors which may be pertinent to the project.
Section 7.31 (emphasis supplied).
The word "shall" was used rather than "may" based upon Mr. Robinson's comments at the June 18, 2002, workshop. As a result, consideration of these criteria/factors is mandatory. However, as the underscored language suggests, the evaluation criteria may vary from project to project.
The project-specific evaluation criteria will be available to prospective applicants at the time of the public announcement along with the location of project, scope of work, project budget, project schedule, and submission requirements. See Proposed Section 7.30. In addition, Proposed Section 7.31 requires the weights to be associated with each qualification and evaluation criteria to be disseminated to prospective applicants, presumably also at the time of the public announcement.
Proposed Section 7.31 requires the Committee to "report a consensus evaluation for each applicant, including a relative ranking for each weighted criteria." The phrase "consensus evaluation" is not explained, but because the
Committee is required to "short-list" the three firms that receive the "highest aggregate score" it appears that the evaluation will be made based upon a numerical scoring system. Such a system is a significant improvement over the existing evaluation process which was found to be arbitrary in the Recommended Order in DOAH Case No. 02-2230BID at pages 16-17. Indeed, the School Board's witnesses confirmed that, although the criteria and weights may vary from project to project, all of the applicants for a particular project will be evaluated and scored by the Committee members in a uniform manner.
The Committee is required to interview the applicants as part of its evaluation if the project's construction cost is more than $1 million. If the cost is less than $1 million, Proposed Section 7.31 provides that interviews are optional.
The purpose of the threshold was not explained at the hearing. Mr. Blackwell simply testified that the threshold was derived from a review of the policies of other governmental entities. Those policies were not introduced at the hearing, and the record is devoid of any other evidence to justify the School Board's choice of $1 million as the threshold, as compared to some other amount.
The Committee's "short-list" will be submitted to the School Board for approval. Thereafter, the School Board is required to notify each applicant of the "short-listed" firms.
The notice must be given by certified mail, return receipt requested, and must include the notice required by Section 120.57(3)(a), Florida Statutes. The latter requirement was added after the June 18, 2002, meeting based upon Mr. Robinson's comments.
Proposed Section 7.32 outlines the competitive negotiation process. Pursuant to that section, the Director of Planning and Construction is required to negotiate with the top- ranked firm. The top-ranked firm is required to submit a fee proposal with supportive information, if required. If a mutually acceptable compensation package cannot be negotiated with the top-ranked firm, negations will commence with the next firm on the "short list." Upon completion of successful negotiations, the agreed compensation must be submitted to the School Board for approval.
Proposed Section 7.33 requires the Director of Planning and Construction, in collaboration with the School Board attorney, to prepare standard contract documents to be used on all projects. Modifications from the standard documents must be clearly indicated.
In short, the polices and summaries of procedures in the Proposed Rules prescribe the process that will be followed in connection with all procurements subject to the CCNA. The
policies and procedures also prescribe the critical substantive aspects of the process, but they contemplate additional detail being provided on a project-by-project basis in the solicitation package (i.e., RFQ or request for proposals (RFP)) for the project.
The project-specific materials, which will be available to potential applicants at the time of the public announcement (and, hence, in advance of the submittal and evaluation of responses) will specify the particular evaluation criteria/factors to be used by the Committee as well as the weight that will be given to each factor. Those materials will include forms, instructions, and other information similar to that in Petitioner's alternative proposal (Exhibit P7).
The Proposed Rules do not specifically incorporate the prohibition on contingent fees in Section 287.055(6), Florida Statutes, nor do they incorporate the provisions of Section 287.055(10), Florida Statutes, relating to reuse of existing plans.
CONCLUSIONS OF LAW
Jurisdiction
The Division has jurisdiction over the subject matter of and parties to this proceeding pursuant to Sections 120.56, 120.569, and 120.57(1), Florida Statutes. (All references to
Sections and Chapters are to the Florida Statutes (2001), except as otherwise indicated.)
Nature of This Proceeding
The parties disagreed at the outset of this proceeding as to whether the challenged sections of the Policy Manual are proposed rules or existing rules. And cf. Endnote 1. Resolution of this issue is significant because it determines which party has the burden of proof and whether the challenged rules are entitled to a presumption of validity in this
proceeding. Compare Section 120.56(2)(a) (agency has the burden to prove the validity of a proposed rule) with Cortes v. Board of Regents, 655 So. 2d 132, 135-36 (Fla. 1st DCA 1995) (petitioner has the burden to prove the invalidity of an existing rule). And compare Section 120.56(2)(c) (proposed rule is not presumed valid or invalid) with Board of Trustees of Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995) (existing rule is entitled to a presumption of validity).
Despite the ambiguous title of Petitioner's initial pleading -- "Petition for Administrative Determination of the Invalidity of Proposed Adopted Rules" -- Petitioner has consistently maintained that its rule challenge was filed pursuant to Section 120.56(2). See Notice filed by Petitioner on August 14, 2002. At the case management conference held on
August 19, 2002, Respondent took the position that the challenged sections of the Policy Manual are no longer proposed rules since no challenge was filed within 21 days of the legal advertisements and because the rules were adopted by the School Board at its meeting on July 30, 2002.5 The parties have not cited, nor has the undersigned's research located any controlling authority on this point. Cf. Patz v. Orange County School Board, DOAH Case No. 98-2770RP, Final Order, at 16
(July 24, 1998) (dismissing challenge to rezoning approved by a local school board because, among other reasons, the challenge was filed more than 21 days after notice and more than 10 days after final public hearing on the rezoning).
There is some support for Respondent's position in Section 120.54(3)(e)6. which provides that "[r]ules not required to be filed with the Department of State shall become effective when adopted by the agency head or on a later date specified by rule or statute." The Proposed Rules fall within the purview of that statute because local school boards are not required to file their rules with the Department of State. See Section 120.55(1)(a)2. (rules applicable to only one school district are not published in the Florida Administrative Code) and Section 120.54(3)(e)1. (rules not published in the Florida Administrative Code are not required to be filed with the Department of State). However, Section 120.54(3)(e)6. cannot be
squared with the periods established in Section 120.56(2)(a) for challenging a proposed rule.
Prior to 1996, the only period within which a proposed rule could be challenged was 21 days after publication of the notice of proposed rulemaking. See Section 120.54(4)(b), Florida Statutes (1995). However, additional "windows" for challenging a proposed rule were added as part of the 1996 revision of Chapter 120. Specifically, a proposed rule may now be challenged:
within 21 days after the date of publication of the notice required by s. 120.54(3)(a) [notice of proposed rulemaking], within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(c), within 20 days after the preparation of the statement of estimated regulatory costs required pursuant to s. 120.541, if applicable, or within 20 days after the date of publication of the notice required by s. 120.54(3)(d) [notice of change].
Section 120.56(2)(a) (emphasis supplied).
The rationale underlying the addition of the underscored language was explained as follows:
Administrative agencies regularly make changes to a proposed rule. These changes typically are the result of comments received only after the publication of the proposed rule, such as comments submitted at the public hearing on the proposed rule. In many cases, these changes will address objections that would provide the basis for challenge to a proposed rule. Often, the agency formally agrees to adopt these
changes at the public hearing, which is held at a time that is after the expiration of the existing 21-day time period for filing a challenge to a proposed rule. In an effort to minimize unnecessary challenges to proposed rules, the 1996 legislation extends the time for filing challenges to proposed rules until ten days after conclusion of the public hearing on the proposed rule.
Sellers, The Third Time's the Charm: Florida Finally Enacts
Rulemaking Reform, 48 U. Fla. L. Rev. 93, 122 (1996) (emphasis supplied and footnotes omitted). Accord Hopping, et al., Rulemaking Reforms and Nonrule Policies: A "Catch 22" for State Agencies, Fla. Bar J., March 1997, at 23.
If the Proposed Rules became effective upon adoption, then Petitioner and other substantially affected persons would have been denied their right to challenge the rules within the period provided by Section 120.56(2)(a). That result is inconsistent with and frustrates the intent of the 1996 amendments to Section 120.56(2)(a) as well as the "ideal of participatory democracy" which a proposed rule challenge represents. On the latter point, the late Professor Pat Dore, a noted scholar on Florida's Administrative Procedure Act, explained:
[Section 120.54(4), Florida Statutes (1985), now Section 120.56(2)] was intended to create an opportunity for a citizen initiated check on rulemaking that exceeded delegated statutory authority. It was designed to provide an inexpensive and effective way for persons who would be
substantially affected by a proposed rule to prevent that rule from ever going into effect if an independent hearing officer found that the proposed rule went beyond the agency's statutory authority. [Section 120.56(2)] implements the "ideal of participatory democracy." Persons who feel in a substantial way the effect of the policy proposed by an agency are not required to wait until that policy has been formalized into a rule having the force of law before they challenge the agency's authority to act in the first place; nor are they required to depend on the actions of public officials to rescue them from the effects of unauthorized rulemaking. The ability to challenge rulemaking believed to be unauthorized, while the rulemaking process is still in progress, is placed in the hands of the very people who will be affected by the agency action in some important or significant way.
Dore, Access to Administrative Proceedings, 13 Fla. St. U. L. Rev. 965, 1014-15 (1986) (footnotes omitted).
Where two statutes cannot be harmonized, the latter expression of legislative will prevails. See, e.g., State v. Board of Public Instruction, 113 So. 2d 368, 370 (Fla. 1959). Section 120.54(3)(e)6. and Section 120.56(2)(a) cannot be harmonized in this instance because application of the former statute would mean that the Proposed Rules became effective upon adoption (and hence were no longer subject to challenge as proposed rules) while application of the latter statute would mean that the Proposed Rules could be challenged as proposed
rules until 10 days after the July 30, 2002, meeting at which they were approved by the School Board.
Section 120.56(2)(a) is the latter expression of the legislative will and, as discussed above, it is more consistent with the intent underlying Chapter 120. The portion of Section 120.56(2)(a) at issue in this proceeding (i.e., authorizing a proposed rule challenge to be filed within 10 days after the final public hearing on the rule) was added in 1996; the pertinent language in Section 120.54(3)(e)6. was in existence prior to 1996. See Section 120.54(13)(a), Florida Statutes (1995).
In sum, because the Petition in this case was filed within 10 days after July 30, 2002, public hearing on the Proposed Rules, it is timely under Section 120.56(2)(a). Accordingly, the challenged sections of the Policy Manual are still proposed rules despite their adoption at the School Board's July 30, 2002, meeting and despite Section 120.54(3)(e)6.
Standing
Any "substantially affected person" has standing to challenge a proposed rule. See Section 120.56(1)(a), (2)(a); Florida Board of Medicine v. Florida Academy of Cosmetic
Surgery, Inc., 808 So. 2d 243, 250-51 (Fla. 1st DCA 2002).
The School Board stipulated at the hearing that Petitioner has standing to challenge the Proposed Rules, and the preponderance of the evidence confirms Petitioner's standing. Petitioner will be substantially affected by the Proposed Rules because they establish the policies and procedures that the School Board will use to competitively procure engineering services from firms such as Petitioner.
Burden of Proof
The Proposed Rules are not presumed to be valid or invalid, see Section 120.56(2)(c), and the School Board has the burden to prove that the Proposed Rules are not invalid exercises of delegated legislative authority as to the objections raised by Petitioner. See Section 120.56(2)(a).
The standard of proof is a preponderance of the evidence. See Sections 120.56(2)(a) and 120.57(1)(j).
Rule Validity or Invalidity
The grounds upon which a proposed rule may be invalidated by an administrative law judge are set forth in Section 120.52(8). That statute defines "invalid exercise of delegated legislative authority" to mean:
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 any one of the following applies:
The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious;
The rule is not supported by competent substantial evidence; or
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 but 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 authority 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's class of powers and duties, nor shall an agency have the authority to implement statutory provisions 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 specific powers and duties conferred by the same statute.
The unlettered, "flush left" paragraph at the end of Section 120.52(8) is not implicated in this proceeding. See Section 120.81(1)(a) ("Notwithstanding s. 120.536(1) and the flush left provisions of s. 120.52(8), district school boards may adopt rules to implement their general powers under s. 230.22."). And see Greenbaum & Sellers, 1999 Amendments to the Florida Administrative Procedure Act, 27 Fla. St. U. L. Rev. 499, 529-31 (2000) (detailing the legislative history of Section 120.80(1)(a)).
Of the lettered paragraphs in Section 120.52(8), Petitioner's challenge to the Proposed Rules is based upon paragraphs (a), (b), (c), (d), (e), and (f). Each of those potential bases for invalidating the Proposed Rule will be discussed in turn.
Paragraph (a) -- Compliance with Rulemaking Procedures
It is undisputed that Respondent is an agency for purposes of Chapter 120. See Section 120.52(1)(b)7. (defining "agency" to include "educational units") and Section 120.52(6) (defining "educational unit" to include local school districts). See also Witgenstein v. School Board of Leon County, 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977).
Section 120.81(1)(e) exempts educational units such as the School Board from filing documents with the Joint Administrative Procedure Committee, and Section 120.81(1)(d) permits educational units to publish their notices in a local newspaper rather than in the Florida Administrative Weekly. However, neither of those statutes nor any other provision of Chapter 120 exempt educational units from any step in the rulemaking process described below.
The rulemaking process begins with the publication of a notice of rule development, see Section 120.54(2)(a), and the holding a rule development workshop if requested by an affected person. See Section 120.54(2)(c). Then, the agency is required to publish notice of proposed rulemaking, see Section 120.54(3)(a)1.; prepare a statement of estimated regulatory costs, if requested, see id. and Section 120.541; consider certain enumerated "special matters," see Section 120.54(3)(b); and hold a public hearing if requested by an affected person, see Section 120.54(3)(c). The rulemaking process concludes with the rule being filed in the office of the agency head or with the Secretary of State, as applicable. See Sections 120.54(3)(e)1. Filing must occur within 90 days after the notice of proposed rulemaking unless an administrative challenge is timely filed. See Sections 120.54(3)(e)2 and 120.56(2)(b).
Failure to follow these procedural steps does not necessarily render the rule invalid. Only when the agency materially fails to follow the applicable rulemaking procedures or requirements will the rule be declared invalid under Section 120.52(8)(a). See, e.g., Dept. of Health & Rehabilitative Servs. v. Wright, 439 So. 2d 937, 940-41 (Fla. 1st DCA 1983) (compliance with procedural aspects of rulemaking process is subject to "statutory harmless error" rule).
The petition raises three grounds upon which Petitioner argues that the Proposed Rules are invalid under Section 120.52(8)(a): (1) the School Board's failure to prepare a statement of estimated regulatory costs (SERC), see Petition at 3, Paragraph 7; (2) the School Board's failure to consider the effects of the Proposed Rules on small businesses, id., Paragraph 8; and (3) the School Board's failure to identify the specific law to be implemented by the Proposed Rules in the legal advertisements, id. at 4, Paragraph 11. A fourth and fifth ground -- (4) the School Board's failure to hold a workshop on the Proposed Rules pursuant to Mr. Robinson's request dated July 11, 2002, and (5) the School Board's failure to strictly comply with the procedural requirements in Section
–- were not “state[d] with particularity” in the petition as required by Section 120.56(2)(a), but were raised through the testimony and evidence presented at the hearing without
objection from Respondent. The fifth ground will be addressed first because it implicates several of the other grounds.
Failure to Strictly Comply with the Procedural Requirements in Section 120.54
Prior to 1996, rulemaking under Chapter 120 required only one notice and, if requested, one public hearing. See Section 120.54(1) and (3)(a), Florida Statutes (1995). A notice of rule development and a rule development workshop were optional steps. See Section 120.54(1)(c)-(d), Florida Statutes (1995). However, as discussed above, the rulemaking process now requires notice and opportunity for public input during the rule development phase (see Section 120.54(2)) and during the rule adoption phase (see Section 120.54(3)). And cf. Sellers, supra, at 106-08 (discussing the intent of the 1996 amendments to Section 120.54 which made the rule development phase mandatory).
The legal advertisements published by the School Board between June 27 and July 5, 2002, were intended to be the notice required by Section 120.54(3)(a). As a result, the School Board's July 30, 2002, meeting constitutes the public hearing contemplated by Section 120.54(3)(c). And cf. Rule 28- 103.004(5), Florida Administrative Code ("The purpose of a public hearing is to provide affected persons and other members of the public a reasonable opportunity for presentation of evidence, argument and oral statements, within reasonable
conditions and limitations imposed by the agency to avoid duplication, irrelevant comments, unnecessary delay, or disruption of the proceeding.").
Accordingly, the School Board's June 18, 2002, meeting must have been the rule development workshop contemplated by Section 120.54(2)(c). However, the notice provided for that meeting failed to comply with the requirements of Section 120.54(2)(a). The notice was not published more than 14 days prior to the meeting, see Section 120.54(2)(c), and it failed to include the information specified in Section 120.54(2)(a).
Despite the statutorily-inadequate notice,
Mr. Robinson appeared at the June 18, 2002, meeting on behalf of Petitioner and provided comments on the preliminary draft of the Proposed Rules. Accordingly, Petitioner is estopped from contesting the adequacy of the notice for the June 18, 2002, meeting. See Agency for Health Care Admin. v. Fla. Coalition of Professional Laboratory Organizations, Inc., 718 So. 2d 869, 873 (Fla. 1st DCA 1998) (failure to properly notice rule development workshop was harmless error where Petitioner had actual notice of the workshop); Schumacher v. Town of Jupiter, 643 So. 2d 8, 9 (Fla. 4th DCA 1994) (citing Malley v. Clay County Zoning Comm'n,
225 So. 2d 555 (Fla. 1st DCA 1969)); Stuart Yacht Club & Marina,
Inc. v. Dept. of Natural Resources, 625 So. 2d 1263, 1269 (Fla.
4th DCA 1993). But cf. Sarasota Surf Vacation Rentals v. Dept. of Revenue, 437 So. 2d 786 (Fla. 2nd DCA 1983).
Moreover, even though the School Board did not properly notice the June 18, 2002, meeting as a rule development workshop, the evidence demonstrates that Mr. Robinson was afforded the ample opportunity to present his (and Petitioner's) views on the Proposed Rules at that meeting and through other meetings with the School Board’s staff. Indeed, some of
Mr. Robinson's comments were incorporated into the version of the Proposed Rules that was subsequently approved by the School Board at its July 30, 2002, meeting, and Petitioner was able to file a petition challenging the Proposed Rules. See Stuart Yacht Club, 625 So. 2d at 1269 (Petitioner was not prejudiced by lack of direct notice of agency's proposed rulemaking because it received indirect notice and it filed a petition challenging the validity of the proposed rules).
In sum, the School Board's failure to strictly comply with the procedural steps in Section 120.54 does not, in this instance, constitute a material failure to follow the applicable rulemaking requirements in Chapter 120.
Failure to Prepare a SERC
An agency is not required to prepare a SERC. See
Section 120.54(3)(b)1. (agencies are only "encouraged" to prepare SERCs). The failure to prepare a SERC is a material
failure to follow the applicable rulemaking procedures only if the agency fails to prepare a SERC in response to a lower cost regulatory alternative (LCRA) submitted by a substantially affected person in accordance with Section 120.541(1)(a). See Section 120.541(1)(b). And cf. Florida Academy of Cosmetic Surgery, 808 So. 2d at 258.
Although Section 120.541 and the Uniform Rules of Procedure do not prescribe a specific form for the LCRA, it is reasonable to expect that the LCRA would be designated as such or at least reference cost issues. Otherwise, the agency may be unaware of the purpose of the submittal and its obligation to prepare or revise the SERC in response to the LCRA.
The only submittal that could conceivably be considered to be a LCRA is the document Petitioner provided to the School Board members on July 25, 2002 (Exhibit P7). That document made no reference to Section 120.541 nor did it assert that it would result in lower costs than the Proposed Rules; it was simply presented as an alternative to the School Board's proposal. Therefore, Petitioner's July 25, 2002, submittal cannot be considered a LCRA.
Because no LCRA was submitted, the School Board was not obligated to prepare a SERC and its failure to do so does not constitute a material failure to follow the applicable rulemaking requirements in Chapter 120.
Failure to Consider Impacts on Small Businesses
Section 120.54(3)(b)2.a. requires agencies to "consider the impact of the rule on small businesses as defined by s. 288.703" and to "reduce disproportionate impacts on small businesses" whenever practicable. The statute identifies several methods that the agency is required to consider to reduce the impact of the proposed rule on small businesses, see Section 120.54(3)(b)2.a.(I)-(IV), and it requires the agency to send notice of the proposed rule to the small business ombudsman in the Office of Tourism, Trade, and Economic Development and to implement any recommendations of the ombudsman. See Section 120.54(3)(b)2.b.
The record does not reflect whether the School Board considered the impact on the Proposed Rules on small businesses, nor does it include a copy of any notice given by the School Board to the ombudsman. Nevertheless, Petitioner failed to produce any evidence demonstrating that the Proposed Rules have a disproportionate impact on it or other small businesses. Accordingly, Petitioner failed to meet its "burden of going forward" on this issue. See Section 120.56(2)(a); St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 76-77 (Fla. 1st DCA 1998).
In any event, the School Board's failure to consider the impact of the Proposed Rules on small businesses would be
harmless error because the purpose of the Proposed Rules -– i.e., to establish a fair and uniform process for procuring professional services -- would be frustrated if small businesses were exempted from the process or given some other form of special treatment as contemplated by Section
120.54(3)(b)2.a.(I)-(IV). Cf. Injured Workers Ass'n of Florida
v. Dept. of Labor & Employment Security, 630 So. 2d 1189, 1193 (Fla. 1st DCA 1994) (agency's failure to prepare an economic impact statement is harmless error unless it is shown that the proposed rule will have an economic impact or that the fairness of the proceeding is impaired); Polk v. School Board of Polk County, 373 So. 2d 960, 962-63 (Fla. 2nd DCA 1979) (same).
Accordingly, the School Board's apparent failure to consider the impacts of the Proposed Rules on small businesses does not, in this instance, constitute a material failure to follow the applicable rulemaking requirements in Chapter 120.
Failure to Specify the Law Implemented in the Notice of Proposed Rulemaking
Section 120.54(3)(a)1. requires the notice of proposed rulemaking to include:
a short, plain explanation of the purpose and effect of the proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being
implemented, interpreted, or made specific. The notice shall include a summary of the agency's statement of the estimated regulatory costs, if one has been prepared, based on the factors set forth in s.
120.541(2), and a statement that any person who wishes to provide the agency with information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative as provided by s. 120.541(1), must do so in writing within 21 days after publication of the notice. The notice must state the procedure for requesting a public hearing on the proposed rule. Except when the intended action is the repeal of a rule, the notice shall include a reference both to the date on which and to the place where the notice of rule development that is required by subsection (2) appeared.
Section 120.81(1)(d) exempts educational units such as the School Board from the requirement of including the full text of the proposed rules in the required notices. However, application of the statutory construction principle of expressio
unius est exclusio alterius means that the notices must include all of the other information specified in Section 120.54(3)(a)1. See Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952) (where statute sets forth exceptions, no others may be implied).
The legal advertisements published by the School Board included almost none of the information required by Section 120.54(3)(a)1. See Finding of Fact 30. However, Petitioner has only challenged the School Board's failure to
"notice the specific law to be implemented in its legal advertisement." See Petition at 4, Paragraph 11.
The copies of the Proposed Rules available at the June 18 and July 30, 2002, School Board meetings identified the statutes being implemented by the Proposed Rules. Moreover, the text of the Proposed Rules specifically references Section 287.055, see Policy Manual, Proposed Section 7.29, as did the executive summary for the agenda item under which the Proposed Rules were considered on June 18, 2002.
The executive summary also references the SREF as being implemented, even though that document is incorporated into a rule, not a statute. As noted above, Section 120.54(3)(a)1. only requires reference to "the section or subsection of the Florida Statutes or Laws of Florida being implemented."
Petitioner failed to produce any evidence to demonstrate how it (or the rulemaking process) was prejudiced by the School Board's failure to reference the law implemented in the legal advertisements. Because Petitioner did not meet its “burden of going forward” on this issue, Section 120.56(2)(a); Consolidated-Tomoka, 717 So. 2d at 76-77, it cannot be concluded that the School Board's failure to include the required
information in the legal advertisements constitutes a material failure to follow the applicable rulemaking requirements in Chapter 120.
Failure to Hold Workshop Requested by Petitioner
Section 120.54(2)(c) requires the agency to hold a rule development workshop if requested in writing by any affected person, and Section 120.54(3)(c) requires an agency to hold a public hearing if requested within 21 days after notice of the proposed rule.
Mr. Robinson's July 11, 2002, letter purported to request a workshop pursuant to Section 120.54(2)(c). However, as discussed above, the notice published in the newspaper by the School Board was the notice required by Section 120.54(3)(a), not Section 120.54(2)(a). Stated another way, the notice triggered the rule adoption phase, not the rule development phase. Therefore, Petitioner was entitled to request a public hearing, not a workshop.
The School Board chairwoman's July 19, 2002, letter responding to Mr. Robinson's letter also indicates some confusion on this issue. Specifically, the letter purports to deny Mr. Robinson's request for a workshop because a public hearing on the Proposed Rules had been scheduled. Unlike Section 120.54(2)(c) which allows the agency to deny a request for a rule development workshop by "explain[ing] in writing why
a workshop is unnecessary," a request for a public hearing must be granted if it is timely made by "any affected person." See
Section 120.54(3)(c)1. This confusion did not materially affect the rulemaking process in this instance because a public hearing was held on the Proposed Rules at which Mr. Robinson (on behalf of Petitioner) and others were afforded an opportunity to present their views on the Proposed Rules.
Because Petitioner received all that it was entitled under Section 120.54 in response to the July 11, 2002, letter (i.e., a public hearing on the Proposed Rules), the School Board's failure to hold another workshop during the rule adoption phase does not constitute a material failure to follow the applicable rulemaking requirements in Chapter 120.
Conclusion
In sum, although the rulemaking process followed by the School Board did not fully comport with the requirements of Section 120.54, it did not materially fail to comply with the requirements of Chapter 120. Moreover, the record demonstrates that Petitioner (through Mr. Robinson) was afforded ample opportunity to participate in the rulemaking process and provide input on the Proposed Rules to the School Board and its staff. Accordingly, the preponderance of the evidence demonstrates that the Proposed Rules are not invalid under Section 120.52(8)(a).
2. Paragraphs (b) and (c) -- Statutory Authority and Law Implemented
Paragraphs (b) and (c) of Section 120.52(8) are related in that they both require an examination of the statutory authority purportedly authorizing and being implemented by the rules at issue; however, slightly different issues are involved under each paragraph. See Board of Trustees
of the Internal Improvement Trust Fund v. Day Cruise Ass'n, 794 So. 2d 696, 701 (Fla. 1st DCA 2001).
The inquiry under paragraph (b) is whether the agency has been given authority to adopt the rules at issue and whether the scope of the authority delegated to the agency includes the substance of the proposed rules; the inquiry under paragraph (c) is whether the agency is acting within the boundaries of the authority granted by the legislature. Stated another way, if the agency has not been delegated authority to adopt the rules at issue, then they are invalid under paragraph (b); if the agency's rules are inconsistent with -- i.e., "enlarge[], modif[y], or contravene[]" –- the authority that it has been delegated, then the rules are invalid under paragraph (c).
Paragraph (b)
Petitioner does not seriously contest the School Board's authority to promulgate the Proposed Rules. Indeed, it appears to concede that the School Board has authority to
promulgate the Proposed Rules by arguing that the School Board should have adopted policies and procedures to implement Section
287.055 and SREF Section 4.1 sooner than it did. See Petition at 3, Paragraph 10.
The "specific authority" cited by the School Board for the proposed rules –- Sections 230.03(2), 230.22, 230.23, 235.211, and 230.230056 -- confirms that the School Board has ample authority to adopt the Proposed Rules and that it has not exceeded those grants of rulemaking authority. Indeed, those statutes delegate broad authority to the school boards to operate the local school systems, including authority over school construction.
Sections 230.22(2) and 230.23(22) specifically authorize the School Board to adopt rules in accordance with Section 120.54. Section 230.23005(4) authorizes the School Board to "adopt policies providing for . . . new construction and renovation" of school facilities. Similarly, Section
235.211 authorizes the School Board to "employ procedures to contract for construction of new facilities, or major additions to existing facilities." See also Section 230.23(10)(i) (authorizing the School Board to contract for "services needed by the district school system"); Section 230.23(9) (authorizing the School Board to approve plans for the construction of school property). And cf. SREF, Section 4.1(1) (incorporated by
reference into Rule 6-2.001, Florida Administrative Code) (requiring school boards to adopt policies and procedures "for selecting professional services in conformance with the [CCNA]").
The Proposed Rules fall directly within the scope of these statutory mandates. Accordingly, the Proposed Rules are not invalid under Section 120.52(8)(b).
Paragraph (c)
Petitioner argues that portions of the Proposed Rules are inconsistent with Section 287.055, the primary law implemented by the Proposed Rules, and that the Proposed Rules are generally inconsistent with the statute and Section 4.1(1) of the SREF because they provide only summary procedures rather than complete and fully-developed procedures. See Petition at 3-6, Paragraphs 9, 14, 16, 20-25.
Petitioner has not cited, nor has the undersigned's research located any authority that stands for the proposition that a proposed rule can be invalidated under Section 120.52(8) because it is inconsistent with a directive in another rule. As noted above, the purpose of a rule challenge under Section
120.56 is to determine whether the challenged rule is consistent with the statutes that it is purportedly implementing. Accordingly, the issue under Section 120.52(8)(c) is whether the
Proposed Rules are consistent with and, hence do not enlarge, modify, or contravene Section 287.055, not the SREF.
Petitioner argues that the $1 million threshold in Proposed Section 7.31 is inconsistent with the thresholds in Section 287.017. Proposed Section 7.31 requires the agency to conduct interviews if the project's construction cost exceeds
$1 million, but makes interviews "optional" if the construction cost is less than $1 million.
Section 287.055 incorporates the thresholds from Section 287.017 for purposes of triggering the CCNA process. See Section 287.055(3)(a) and (4)(c). In this regard, an agency is not required to follow the CCNA process unless professional services are being procured for a project with a construction cost in excess of $250,000 (i.e., the Category Five threshold in Section 287.017(1)(e)), or for a planning or study activity with professional fees in excess of $25,000 (i.e., the Category Two threshold in Section 287.017(1)(b)). Proposed Section 7.30 includes those same thresholds for determining whether the procedures in the Proposed Rules will be applicable.
The $1 million threshold in Proposed Section 7.31 only affects whether interviews will be conducted prior to "short-listing" the firms. As such, it implements Section 287.055(4)(a) which provides in relevant part:
For each proposed project, the agency
. . . shall conduct discussions with, and may require public presentations by, no fewer than three firms regarding their qualifications, approach to the project, and ability to furnish the required services.
(Emphasis supplied.)
Section 287.055(4)(a) makes "public presentations" optional through the use of the word "may," but it makes "discussions" mandatory through the use of the word "shall." The statute's description of the substance of the "discussions" that the agency is required to have with the qualified firms comports with the dictionary definition of an interview. See
Mirriam-Webster's On-line Dictionary, at http://www.m-w.com (defining "interview" to mean "a formal consultation usually to evaluate qualifications"). Because Proposed Section 7.31 purports to make interviews optional where the project cost is less than $1 million, the rule contravenes Section 287.055(4)(a). See, e.g., Southwest Florida Water Management District v. Save the Manatee Club, 773 So. 2d 594, 600 (Fla. 1st DCA 2000) (affirming final order that invalidated rule because it created an exemption which was not authorized by statute); Day Cruise Ass'n, 794 So. 2d at 703-04 (affirming final order that invalidated rule because it imposed restriction on type of vessels that could anchor on state lands despite no such limitation appearing in the law purportedly implemented).
Therefore, that portion of Proposed Section 7.31 making interviews optional where the project cost is less than
$1 million is an invalid exercise of delegated legislative authority under Section 120.52(8)(c).
Petitioner has not identified any other particular provision of the Proposed Rules that allegedly contravenes any particular provision in Section 287.055. Indeed, the preponderance of the evidence establishes that the process contained in the Proposed Rules faithfully tracks the process contained in Section 287.055. Similarly, the matters which the School Board and the Committee are required to consider in determining a firm's qualifications and in "short-listing" firms are consistent with those matters set forth in Sections 287.055(3)(c) and Section 287.055(3)(d) and (4)(a), respectively.
Petitioner's challenge to the completeness of the procedures established by the Proposed Rules is more accurately characterized as a challenge under Section 120.52(8)(d), rather than Section 120.52(8)(c), since Petitioner is effectively arguing that the Proposed Rules fail to fully explain the process by which the School Board will procure professional services. That issue is addressed below.
Finally Petitioner argues that the Proposed Rules are generally inconsistent with Section 287.055 because they "left
out text from [the statute] that should have been included." See Petition at 6, Paragraph 23. In this regard, Petitioner notes that the Proposed Rules do not include the prohibition on contingent fees contained in Section 287.055(6) or the language from Section 287.055(10) regarding reuse of existing plans.
This argument misconstrues the purpose of adopting rules. Rules are not intended to simply repeat statutory language; they are intended to implement and interpret statutes by "fleshing out" or filling gaps in the statutory directives and by providing additional detail than the statutes. See
Avatar Development Corp. v. State, 723 So. 2d 199, 204 (Fla. 1998); Askew v. Cross Key Waterways, 372 So. 2d 913, 920-21 (Fla. 1978); Save the Manatee Club, 773 So. 2d at 599. And cf. Section 120.545(1)(b) (requiring the Joint Administrative Procedure Committee to review executive branch agency rules to determine whether they "reiterate[] or paraphrase[] statutory material"). As a result, the School Board's failure to repeat all of the provisions of Section 287.055 in the Proposed Rules does not render the Proposed Rules invalid under Section 120.52(8)(c).
Conclusion
In sum, the preponderance of the evidence demonstrates that the Proposed Rules are not invalid under Section 120.52(8)(b). The preponderance of the evidence further
demonstrates that, except for that portion of Proposed Section
7.31 which purports to make interviews optional where the project costs is less than $1 million, the Proposed Rules are not invalid under Section 120.52(8)(c).
Paragraph (d) -- Inadequate Standards or Vesting Unbridled Discretion in School Board
Petitioner argues that the Proposed Rules provide inadequate standards to guide the School Board's decision-making process and vest unbridled discretion in the School Board. See Petition at 4-6, Paragraphs 14, 16-17, 20-22, 25. As noted above, the crux of Petitioner's argument is that the Proposed Rules provide only "summary" procedures and leave the formulation of critical details until some point in the future.
The level of specificity in the Proposed Rules is similar to that in the rules adopted by the Department of Education and the Board of Regents to implement Section 287.055. See Rule 6A-10.023, Florida Administrative Code, and Rule Chapter 6C-14, Florida Administrative Code.
Nevertheless, Petitioner contends that the Proposed Rules are deficient because they "did not develop a process for the evaluation of statements of qualification" and "did not specify how the evaluation of factors will be made, nor how the selection process would actually work." Petition, at 6, Paragraphs 20-21.
As explained in Cole Vision Corp. v. Department of Business and Professional Regulation, 688 So. 2d 404, 410 (Fla. 1st DCA 1997), "[t]he sufficiency of a rule's standards and guidelines may depend on the subject matter dealt with and the degree of difficulty involved in articulating finite standards." The Proposed Rules establish the general procedure by which the School Board will procure professional services; they do not establish project-specific evaluation criteria or scoring procedures but rather contemplate that information being provided in the RFP/RFQ for each project.
It would be impractical for the Proposed Rules to include the level of specificity urged by Petitioner because they will be used for a variety of different types of projects, e.g., health clinics, special education classrooms, entire schools. By defining the project-specific criteria and associated weights in the RFP/RFQ rather than in the Proposed Rules, the School Board will be better able to define the qualifications and experience that it is seeking for a particular project.
In this regard, the Proposed Rules provide the framework for the formulation of the project-specific RFQs and RFPs through which the professional services will be procured. The Proposed Rules ensure that those solicitations will specify the evaluation factors/criteria and the weight that the
Committee will give to each factor. By requiring the "short- list" prepared by the Committee to include the three applicants having the "highest aggregate scores" (see Proposed Section 7.31), the Proposed Rules ensure that a uniform numerical evaluation process will be used by the Committee.
Even though the mechanics of the Committee process were not articulated in finite detail in the Proposed Rules, the Proposed Rules provide sufficient standards and detail to guide the process. The proposed rules also provide sufficient standards and detail against which the RFQ/RFP specifications or the intended contract award can be reviewed in the event of a protest under Section 120.57(3).
In this regard, the preponderance of the evidence demonstrates that the Proposed Rules (except that portion of Proposed Section 7.31 which is discussed below) establish adequate standards for agency decisions and do not vest unbridled discretion in the School Board, and are not invalid under Section 120.52(8)(d).
An administrative rule that creates discretion not articulated in the statute being implemented must specify the basis upon which the discretion is to be exercised. See Cortes, 655 So. 2d at 138 (citing Staten v. Couch, 507 So. 2d 702 (Fla. 1st DCA 1987)). Without such, the agency's exercise of its discretion is not susceptible to meaningful review. Id.
That portion of Proposed Section 7.31 that purports to make interviews optional where the project cost is less than
$1 million violates this principle because it fails to identify any standards to govern the exercise of the option.
Accordingly, to the extent that Section 287.055(4)(a) grants the School Board discretion to determine whether to conduct interviews in the first instance (and the analysis above concludes that it does not), that portion of Proposed Section
7.31 is an invalid exercise of delegated legislative authority under Section 120.52(8)(d).
4. Paragraphs (e) and (f) -- Arbitrary and Capricious; Not Supported by Competent Substantial Evidence
The standards in Sections 120.52(8)(e) and (f) are related. As one commentator noted, the competent substantial evidence standard in Section 120.52(8)(f) ”will become the standard for evaluation of issues concerning the factual basis of a rule, while [the] 'arbitrary and capricious' [standard in Section 120.52(8)(e)] will be reserved as the standard of review for questions of discretion. These are not easy to separate
. . . ." Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 Fla. St. U. L. Rev. 309, 333 n.143 (1997).
Paragraph (e)
Section 120.52(8)(e) provides that a rule is invalid if it is arbitrary or capricious. An arbitrary act is one "not
supported by facts or logic, or despotic." See Agrico Chemical Co. v. Dept. of Environmental Reg., 365 So. 2d 759, 763 (Fla.
1st DCA 1979). A capricious act is one "which is taken without thought or reason or irrationally." Id.
Except for the $1 million interview threshold in Proposed Section 7.31, the preponderance of the evidence demonstrates that the Proposed Rules are not arbitrary or capricious. They were developed in response to and address the deficiencies identified in the Ersnt & Young report, and they faithfully track the procedures established in Section 287.055. Moreover, the Proposed Rules provide discernable standards to guide and evaluate the School Board's procurement of professional services.
While the establishment of a threshold for interviews is not entirely illogical based upon the size of the School Board’s budget (putting aside the issue of the threshold's inconsistency with Section 287.055(4)(a) discussed above), the School Board failed to demonstrate that its choice of the threshold amount is factually supported. For example, the School Board failed to introduce the policies from which the threshold was derived; failed to show that the other governmental entities which had adopted a $1 million threshold are comparable in their size or procurement activities; and failed to show that projects less than $1 million are too
numerous or financially insignificant in the School Board's overall budget such that conducting interviews on those projects would be overly burdensome. Accordingly, the interview threshold in Proposed Section 7.31 is arbitrary and invalid under Section 120.52(8)(e).
Paragraph (f)
Section 120.52(8)(f) provides that a rule is invalid if it is not based upon competent substantial evidence. This standard was added in 1996, and was first construed in Cosmetic Surgery, supra. In that case, the court likened the standard in Section 120.52(8)(f) to that used by the circuit court when reviewing local government quasi-judicial action by certiorari, and explained:
[T]he legislature intended by the use of its term "competent substantial evidence" to limit the scope of review by ALJ's in rule challenge proceedings to whether legally sufficient evidence exists supporting the agency's proposal. Accordingly, in these proceedings, the ALJ should not have independently reweighed the evidence, assessed the credibility thereof, or substituted his judgment regarding the wisdom of the rules for that of the [agency].
Cosmetic Surgery, 808 So. 2d at 257-58 (emphasis supplied).
Applying that standard to this case, it is concluded that all of the Proposed Rules are supported by substantial
competent evidence, except the $1 million interview threshold in Proposed Section 7.31.
The $1 million threshold is purportedly based upon similar thresholds in policies adopted by other governmental entities. However, as noted above, those policies were not introduced at the hearing, nor was there any testimony or evidence to explain why the threshold was set at $1 million, rather than some other amount. Accordingly, there is no "legally sufficient evidence" in the record to support the threshold.
Conclusion
In sum, the School Board failed to meet its burden of showing that the interview threshold in Proposed Section 7.31 is supported by competent substantial evidence and that it is not arbitrary. Therefore, that portion of Proposed Section 7.31 is an invalid exercise of delegated legislative authority under Section 120.52(8)(e) and (f). However, the preponderance of the evidence demonstrates that the remainder of the Proposed Rules are not invalid under Section 120.52(8)(e) or (f).
5. Summary
In sum, the Proposed Rules address the fundamental deficiencies in the School Board's procurement process that were identified in the Ernst & Young report and the Recommended Order in DOAH Case No. 02-2230BID. The Proposed Rules require the
factors/criteria upon which the applicants will be evaluated and the weights that will be given to each factor to be formulated and provided to the applicants in advance of each solicitation, and they require uniformity in the evaluation and scoring of the applicants by the Committee. The Proposed Rules also provide the necessary framework for the preparation of the project- specific forms and materials which will be prepared in connection with each RFQ/RFP, and they provide a discernable standards against which to judge those materials in the event of a Section 120.57(3) protest of the specifications of the RFQ/RFP or the award of the contract arising therefrom.
Fees and Costs
Petitioner requested an award of "fees and costs" in its petition. No legal authority for that request was cited, and the only conceivable basis is Section 120.595(2). That statute provides that if the administrative law judge declares a proposed rule invalid, an "order shall be rendered against the agency for reasonable costs and attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust." (Emphasis supplied.)
Petitioner is not entitled to an award of fees under Section 120.595(2) because it was represented in this proceeding
by a non-lawyer. See Dept. of Insurance v. Florida Banker's Ass'n, 764 So. 2d 660, 663 (Fla. 1st DCA 2000).
Because a portion of one section of the Proposed Rules was determined to be invalid, Petitioner is entitled to an award of reasonable costs under Section 120.595(2) unless the School Board demonstrates that its actions "were substantially justified or special circumstances exist which would make the award unjust." See Florida Banker's Ass'n v. Dept. of Insurance, DOAH Case No. 98-4118F, Final Order, at 5-6 (May 4, 1999) (awarding costs to successful challenger who was represented by a non-lawyer, but refusing to award fees), aff'd in relevant part, 764 So. 2d 660 (Fla. 1st DCA 2000).
If the parties are unable to agree upon a cost award (after taking into consideration that the bulk of the Proposed Rules were not determined to be invalid) or if the School Board disputes Petitioner's legal entitlement based upon the statutory defenses of "substantial justification" and/or "special circumstances," then Petitioner shall file a motion seeking an award of costs (with supporting documentation), and an evidentiary hearing on the motion will be held, if necessary.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that:
That portion of Proposed Section 7.31 which provides that interviews are optional for projects costing less than
$1 million is an invalid exercise of delegated legislative authority under Section 120.52(8)(c), (d), (e), and (f), Florida Statutes; and
In all other respects, the petition is dismissed; and
Jurisdiction is retained for the limited purpose of considering Petitioner's motion for an award of costs under Section 120.595(2), Florida Statutes, if filed.
DONE AND ORDERED this 11th day of October, 2002, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2002.
ENDNOTES
1/ An Amended Order of Assignment was issued on August 19, 2002, to reflect that the petition was filed pursuant to Section 120.56(2), Florida Statutes, rather than Section 120.56(4), Florida Statutes, as was reflected in the original Order of Assignment. As a result of this change, the suffix of the case number was changed from RU (unadopted rule challenge) to RP (proposed rule challenge).
2/ By agreement of the parties, Exhibit P2 was submitted after the hearing because a clean copy of the exhibit was not available at the hearing. Exhibit P2 was filed on September 27, 2002.
3/ In its Proposed Final Order, Respondent represented that "[t]he School Board adopted the recommended order and rescinded the request for qualifications, published May 21, 2002."
4/ Individual sections of the Proposed Rules are referred to in this Final Order as "Proposed Section [number]," and unless otherwise indicated, the reference includes both the "policy" and "summary of procedures" with that number.
5/ Respondent did not address this issue in its Proposed Final Order, and appears to now concede that this case is a proposed rule challenge. Nevertheless, the issue is addressed in this Final Order for the benefit of the parties (and the appellate court) in the event that Respondent has not abandoned its original position on this issue.
6/ Effective January 7, 2003, these statutes will be repealed and their substance will be moved to Sections 1001.32, 1001.41, 1001.42, 1001.43, and 1013.45, Florida Statutes (2002), respectively. See Chapter 2002-387, Laws of Florida, which comprehensively reorganized Florida's education laws.
APPENDIX TO FINAL ORDER IN DOAH CASE NO. 02-3138RP
HILLSBOROUGH COUNTY SCHOOL BOARD POLICY MANUAL SECTION 7.29 -- ACQUISITION OF PROFESSIONAL SERVICES POLICY
The acquisition of professional architectural, engineering, landscape architectural, land surveying, or construction management services shall be procured in accordance with Florida Statute 287.055 with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms.
SUMMARY OF PROCEDURES
The Operations Division shall be responsible for the administrative and managerial duties attendant to the acquisition of professional architectural, engineering, landscape architectural, land surveying, and construction management services.
SECTION 7.30 -- PUBLIC ANNOUNCEMENT POLICY
The District shall publicly announce, by publication in local newspapers of general circulation, each occasion when professional services must be purchased for a project the basic construction cost of which is estimated by the agency to exceed
$250,000, or when the fee for professional services exceeds
$25,000. The public notice must include a general description of the project and must indicate how interested consultants may apply for consideration.
SUMMARY OF PROCEDURES
All legal advertisements for professional services are to run in the Tampa Tribune, LaGaceta, and the Florida Sentinel Bulletin. Three other newspapers, Lutz Community News, Plant City Courier, and Tampa Record, are to be used on a rotating basis depending on the location of the project.
The following information will be made available to prospective applicants:
location of project;
scope of work;
project budget;
project schedule;
submission requirements;
prospective evaluation criteria.
SECTION 7.31 -- COMPETITIVE SELECTION POLICY
Any firm or individual desiring to provide professional architectural, engineering, landscape architectural, land surveying, or construction management services to the District must first be certified by the District as qualified. The District must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual.
The District shall establish a Professional Services Selection Committee. This committee shall be charged with the evaluation and ranking of prospective providers of professional services. The committee shall have seven voting members: the Assistant Superintendent for Operations, one member of the PTA County Council, one representative from the Citizens Advisory Committee, one representative from the Administrative Division, one representative from the Instructional Divisions, one representative from the Planning and Construction Department, and one representative from the Maintenance Department.
The District shall develop and maintain a process for the evaluation of statements of qualification. The Committee shall consider such factors as the ability of professional personnel; whether the firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the District, and other such factors which may be pertinent to the project.
The Professional Services Selection Committee shall identify, in order of preference, no fewer than three firms
deemed to be the most highly qualified to perform the required services. The Board must send each firm which applied for consideration a certified letter, return receipt requested, notifying it of the short listed finalist firms. The notification will include the following statement: "Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."
If the estimated construction cost of the project exceeds
$1 million, interviews shall be conducted with the firms deemed as most qualified. If the estimated construction cost is less than $1 million, an interview with qualified firms is optional.
SUMMARY OF PROCEDURES
The Operations Division shall require each applicant to identify the type and scope of services being offered and the type and scope of assignments being sought. Documentation of qualifications shall be required. Firms will only be considered for assignments consistent with certified capabilities.
The Assistant Superintendent for Operations will chair the Professional Services Selection Committee. The committee will be convened as required to evaluate submitted materials, conduct interviews, hear presentations, consult staff, and rank applicants. Committee functions may be accomplished in either actual or virtual meetings.
Prior to publication of the solicitation, the weights to be associated with each qualification and evaluation criteria will be chosen, and all criteria finalized for dissemination to prospective applicants.
The Professional Services Selection Committee shall report a consensus evaluation for each applicant, including a relative ranking for each weighted criteria.
The three applicants receiving the highest aggregate scores shall be recommended for advancement to the Competitive Negotiation phase. For projects having budgets in excess of
$1,000,000, interviews shall be conducted prior to establishing the final ranking.
SECTION 7.32 -- COMPETITIVE NEGOTIATION POLICY
With the approval of the Superintendent or designee, negotiations between the District and the firm ranked number one shall be conducted. If negotiations are successful, a contract shall be submitted to the School Board for its consideration.
If negotiations are unsuccessful, the District shall terminate negotiations with the higher ranked firm and commence negotiations with the next highest ranked firm. If negotiations are terminated with a firm, and commenced with the next highest firm, under no circumstances shall the District negotiate with the original firm without first re-advertising for proposals.
SUMMARY OF PROCEDURES
The Director of Planning and Construction shall be charged with establishing a mutually acceptable compensation package for the requested services. The firm ranked highest by the Professional Services Selection Committee will be requested to submit a fee proposal for the required services. Additional supportive information, i.e., staffing projections, direct costs, reimbursable expenses, etc. may be required. Each negotiation session shall be witnessed by the Project Coordinator or a designee. The agreed upon compensation for basic professional services shall be presented to the School Board with a recommendation for approval.
SECTION 7.33 -- STANDARDIZED AGREEMENTS POLICY
The District shall develop and maintain standard contractual documents for use in the procurement of all professional services. All such documents and any subsequent material revisions thereto, shall be submitted to the School Board Attorney for review and approval.
SUMMARY OF PROCEDURES
The Director of Planning and Construction, in collaboration with the School Board Attorney, will prepare standard contract documents which shall be used on all projects. Modifications from the standard shall be clearly indicated.
COPIES FURNISHED:
W. Crosby Few, Esquire Few & Ayala
501 East Kennedy Boulevard Suite 1401
Tampa, Florida 33602
Joseph W. J Robinson, President RHC and Associates, Inc.
Post Office Box 4505 Tampa, Florida 33677
Jason L. Odom, Esquire Thompson, Sizemore & Gonzalez
501 East Kennedy Boulevard Suite 1400
Tampa, Florida 33602
Dr. Earl J. Lennard, Superintendent Hillsborough County School Board Post Office Box 3408
Tampa, Florida 33601-3408
Daniel J. Woodring, General Counsel Department of Education
325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Carroll Webb, Executive Director
Joint Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
Liz Cloud, Chief
Bureau of Administrative Code The Elliott Building, Room 201 Tallahassee, Florida 32399-0250
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 11, 2002 | DOAH Final Order | Rules adopted by School Board establishing policies/summaries of procedures by which Board will procure professional services are not invalid exercises of delegated legislative authority, except for $1 million interview threshold in Proposed Section 7.31. |
RHC AND ASSOCIATES, INC. vs HILLSBOROUGH COUNTY SCHOOL BOARD, 02-003138RP (2002)
D. J. HAYCOOK CONSTRUCTION COMPANY vs VOLUSIA COUNTY SCHOOL BOARD, 02-003138RP (2002)
CITY OF PEMBROKE PINES vs BROWARD COUNTY SCHOOL BOARD, 02-003138RP (2002)
ZAYO GROUP, LLC vs SCHOOL BOARD OF POLK COUNTY, FLORIDA, 02-003138RP (2002)
PALM BEACH COUNTY SCHOOL BOARD vs THERESA CALLAHAN, 02-003138RP (2002)
