STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF PEMBROKE PINES, )
)
Petitioner, )
)
vs. ) Case No. 09-5626RU
) BROWARD COUNTY SCHOOL BOARD, )
)
Respondent. )
)
FINAL ORDER
Pursuant to the joint request of the parties, the undersigned administrative law judge of the Division of Administrative Hearings (DOAH), Stuart M. Lerner, has decided this case summarily, without an evidentiary hearing, based upon the parties' written submissions (in the form of their Joint Pre-Hearing Stipulation and their briefs, with attachments) and oral argument held by telephone conference call on February 10,
2010.
APPEARANCES
For Petitioner: Edward J. Pozzuoli, Esquire
Stephanie D. Alexander, Esquire Tripp Scott
110 Southeast 6th Street, 15th Floor Fort Lauderdale, Florida 33301
Samuel S. Goren, Esquire
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308
For Respondent: Edward J. Marko, Esquire
Robert Paul Vignola, Esquire
Office of the School Board Attorney 600 Southeast Third Avenue-11th Floor Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUE
Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
PRELIMINARY STATEMENT
On October 15, 2009, the City filed a petition with DOAH pursuant to Section 120.56(4), Florida Statutes, seeking an administrative determination that the Challenged Statement violates Section 120.54(1)(a), Florida Statutes, and further seeking an award of attorney's fees and costs pursuant to Section 120.595(4), Florida Statutes. After determining that "the petition appear[ed] to comply with the requirements of Section 120.56(4), Florida Statutes," DOAH's Chief Judge, by Order of Assignment issued October 15, 2009, assigned the case to the undersigned, who subsequently scheduled the final hearing in the matter for November 6, 2009.
On October 27, 2009, the School Board filed a motion requesting "reconsideration of the Order of Assignment and the entry of an order dismissing the [City's] [p]etition," to which the City filed a response the following day. After hearing oral argument on the matter, the undersigned, on October 28, 2009, issued an order denying the motion.
On November 5, 2009, the parties filed a Joint Motion to Proceed Via Written Submissions (With Oral Argument), which read as follows:
Petitioner, CITY OF PEMBROKE PINES ("CITY")
and Respondent, THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA ("SBBC"), by and through their undersigned counsel, hereby file this Joint Motion to Proceed Via Written Submissions (With Oral Argument), and state as follows:
A final hearing in this matter is currently scheduled for November 6, 2009.
Petitioner and Respondent (hereinafter "the Parties") have conferred and anticipate that the remaining issues in this case will not require testimony and may be resolved via written submissions (with oral argument). Accordingly, the parties presently believe that a final hearing is unnecessary.
The Parties hereby request that the Administrative Law Judge ("ALJ") cancel the hearing scheduled for November 6, 2009 in the instant matter.
The Parties hereby request that the ALJ enter an Order granting the agreed upon direction and manner in which the instant matter will be conducted as follows:
CITY and SBBC have agreed to enter into a Joint Pre-Hearing Stipulation with a set of stipulated facts and law as well as a set of disputed facts and law on or before November 12, 2009.
CITY shall file its Initial Brief with the ALJ by November 25, 2009 or within 15 days from the filing of the stipulated facts and law and disputed facts and law as outlined above.
SBBC shall file its Answer Brief by December 11, 2009 or within 15 days from the filing of the City's Initial Brief.
CITY shall file its Reply Brief by December 18, 2009 or within 5 days of the filing of the SBBC's Answer Brief.
After briefing is closed an oral argument shall be conducted prior to December 23, 2009 or after January 4, 2010 depending on the Court's calendar and those of the Parties.
There will be no discovery without the permission of the Court and showing of good cause by the moving party.
The foregoing timelines may be revised upon either a showing of good cause or by stipulation of Parties.
WHEREFORE, the Parties respectfully request that the Administrative Law Judge enter an order consistent with the schedule outlined in paragraph 4, above, canceling the November 6, 2009 hearing and [granting] any such other relief as the Division of Administrative Hearings deems just and proper.
On November 6, 2009, the undersigned issued an Order Cancelling Final Hearing and Granting Joint Motion to Proceed
via Written Submissions (with Oral Argument), which provided, in pertinent part, as follows:
The parties' Joint Motion to Proceed Via Written Submissions (With Oral Argument) is granted.
The final hearing scheduled for November 6, 2009, is cancelled.
This case shall proceed in the manner specified in numbered paragraph 4 of the parties' Joint Motion to Proceed Via Written Submissions (With Oral Argument).
Each brief filed with the Division of Administrative Hearings shall be simultaneously served on counsel for the opposing party by e-mail, facsimile transmission, or similar method.
On December 3, 2009, the parties filed a Joint Pre-Hearing Stipulation, which read as follows:
COME NOW the Petitioner, CITY OF PEMBROKE PINES (referred to herein as "CITY") and Respondent, THE SCHOOL BOARD OF BROWARD
COUNTY, FLORIDA (referred to herein as "SBBC"), by and through [their] respective undersigned attorneys and file this Their Joint Pre-Hearing Stipulation in accordance with the Order Canceling Final Hearing and Granting Joint Motion to Proceed via Written Submissions (with Oral Argument) rendered November 6, 2009, and would state as follows:
STATEMENT OF THE CONTROVERSY
The City challenges as an unadopted rule an alleged unwritten policy of the SBBC that allegedly excludes all charter schools, including the City's charter schools, from consideration in distribution of funds under Section 1011.71(2), Florida Statutes.
STATEMENT OF STIPULATED FACTS
The following facts are stipulated to by all parties and will require no proof at the hearing. The inclusion of a stipulated fact within this section of the stipulation does not constitute a waiver of any objections based upon relevancy or materiality that a party may raise concerning that fact.
Rather, the inclusion of a fact in this section simply indicates that the fact itself is undisputed by the parties and is deemed material by at least one of the parties:
The City is a city within Broward County, Florida.
The SBBC is a district school board which operates the district school system in Broward County, Florida.[2]
The SBBC and the City have entered into several charter agreements through which the City operates charter elementary, middle and high schools.
In Florida, all charter schools are public schools.[3]
The amount that can be levied under Section 1011.71(2), Florida Statutes, was reduced by the Florida Legislature to 1.75 mills in 2008 and was further reduced to 1.5 mills in 2009 unless certain action was taken by a district school board. Funds collected pursuant to a levy under Section 1011.71(2), Florida Statutes, will be referred to in this Stipulation as "Section 1011.71(2) Funds."[4]
The SBBC has routinely allocated tax revenues collected pursuant to Section 1011.71(2), Fla. Stat. to address the capital funding needs of district schools operating in Broward County.[5] The SBBC
asserts that Section 1011.71(2) Funds have only partially met the capital needs of district schools and that in each year from 2006 to the present, the SBBC has compiled a list of unmet capital needs for its district schools.
No specific capital project has been submitted by any charter school, including the City, to the SBBC for inclusion in the state-required educational plant survey; inclusion in the present School Board District Educational Facilities Plan which forecasts the SBBC's capital expenditures over the course of the next five years or for any allocation of Section 1011.71(2) Funds by the SBBC, (City has submitted its request for funds as provided herein below).
The SBBC has not included any capital project for any charter school in either the state-required educational plant survey[6] or the present School Board District Educational Facilities Plan which forecasts the SBBC's capital expenditures over the course of the next five years.[7]
The SBBC has not allocated any Section 1011.71(2) Funds at any charter school in Broward County, including those charter schools operated by the City[,] for any capital project or any other purpose.[8]
In December of 2005, the City requested that the SBBC consider including the City proportionately in the SBBC's allocations of Section 1011.71(2) Funds.
The SBBC placed the City's request on the agenda of a SBBC workshop held on January 10, 2006. The City prepared and submitted a formal memorandum outlining the basis for its request for Section 1011.71(2) Funds accompanied by a letter dated
January 9, 2006.
Public input is not received by the SBBC at its workshops and strategic planning retreats since official agency action is only taken at regular or special SBBC meetings.
City officials including City Manger Charles Dodge were present at the
January 10, 2006 meeting but were not provided an opportunity at that workshop meeting to address the SBBC.
On February 1, 2006, the City Commission passed Resolution 3068 which initiated the conflict resolution procedure of Section 164.1052, Florida Statutes, with the SBBC concerning capital funding issues for the City's Charter Schools. On February 2, 2006, this resolution was conveyed to Frank Till, who was then Superintendent of Schools for the SBBC.[9]
On April 28, 2006, the SBBC's Superintendent of Schools sent a letter in response to the City's request for capital funding stating that, in the opinion of the SBBC's special counsel [Robert Gang, Esquire of Greenberg Traurig], "[a] district school board is limited by Section 1011.71, Florida Statutes, as to the purposes for which it may expend the revenues derived from . . . [Section 1011.71(2)]." That letter further stated that, "[t]he permitted expenditures do not include delivery of those revenues to a charter school."[10]
Section 1011.71, Florida Statutes, was amended by the Florida Legislature, effective July 1, 2006, to provide that allocation of Section 1011.71(2) Funds to a charter school would be permitted at the discretion of a district school board.[11]
The City thereafter corresponded with the SBBC in an attempt to coordinate a presentation of the City's position to the SBBC. On October 20, 2006, the City
proposed the conduct of a conflict assessment meeting pursuant to Section 164.1052(1), Florida Statutes,[12] to be held on Monday, November 20, 2006.
The conflict resolution between the City Manger and the SBBC's Interim Superintendent of Schools took place on December 7, 2006, and resulted in each party's representative agreeing to meet with his respective governing board and for the representatives to thereafter meet again.
On January 23, 2007, SBBC Members met at a Strategic Planning Retreat during which the Interim Superintendent expressed his opinion that the school district should not share capital outlay millage with charter schools. As the meeting was a Strategic Planning Retreat and not a regular SBBC meeting at which business may be conducted, no vote or action by the SBBC was taken upon the Interim Superintendent's remarks.
Pursuant to Chapter 164, Florida Statutes, a joint meeting of the governing bodies of the SBBC and the City was held on March 15, 2007 to address the City's capital funding requests.[13] At that meeting, the Superintendent stated as follows:
Sharing of our capital outlay millage is not recommended. Financially, it is not a good decision. We are facing class size reduction in a class by class count in two years. We know our latest information from Tallahassee, just early this week, that the Governor's budget is 1.2 billion dollars off based on the latest revenue conference. . .
Charter schools, including those operated by the City, maintain that they are not subject to the class-size requirements imposed by Section 1003.03, Florida Statutes.[14]
On May 2, 2007, the parties attended a mediation session pursuant to Chapter 164, Florida Statutes. The result of that mediation session was that the City would present a written proposal at a second mediation session.
A second mediation session took place on May 24, 2007 during which the City submitted a written proposal establishing criteria for allocation of Section 1011.71(2) Funds to charter school capital outlay projects.[15] The Superintendent agreed at that time to present the City's proposal to the SBBC.
At a June 26, 2007 meeting the SBBC considered the written proposal from the City to adopt criteria for a charter school to be eligible for Section 1011.71(2) Funds. The SBBC also considered some revisions to the City's written proposal as suggested by school district staff. The Superintendent of Schools stated at the meeting that the district's capital plan could be decimated by an upcoming special legislative session regarding a constitutional amendment on property taxes and recommended deferral of the issue. After discussion and having received input from the City's representatives, the SBBC approved a motion to defer the item "until after the budget is analyzed following the 1/29/08 constitutional amendment election."
On November 6, 2007, the City filed a lawsuit against the SBBC in circuit court for declaratory and injunctive relief regarding the allocation of Section 1011.71(2) Funds and alleged breaches of the charter agreements between the parties. The lawsuit remains pending at this time.
To date, the SBBC has not adopted, pursuant to § 120.54, Fla. Stat., any rules that pertain to the allocation of Section 1011.71(2) Funds to charter schools.
The City has annually applied for and received capital funds allocated for charter schools by the Florida Legislature pursuant to Section 1002.33(19)[16] and 1013.62, Florida Statutes.[17] The City has repeatedly submitted Charter School Capital Outlay Plans to the Florida Department of Education seeking capital funds allocated under Section 1013.62, Florida Statutes (formerly Section 228.056(1), Florida Statutes), and the SBBC has forwarded such application to the State Department of Education for approval. In addition to those capital funds received in prior years pursuant to Section 1013.62, Florida Statutes, the City received $2,101,068 in 2006, $3,830,103 in 2007, $3,521,118 in 2008 and $3,125,143 [sic] from the state for capital needs.[18]
District school boards may not receive capital funds allocated pursuant to Section 1013.62, Florida Statutes.
STATEMENT OF DISPUTED FACTS
The following issues of fact are in dispute and remain to be litigated. The inclusion of any issue within this portion of the Stipulation does not constitute the agreement of any party that said issue is material, relevant proper matter to be litigated. Rather, this listing is merely a statement of issues raised by one or more parties:
1. Whether the SBBC has an unwritten policy statement that categorically excludes all public charter schools from consideration in distributing funds under Section 1011.71(2), Florida Statutes.
AGREED ISSUES OF LAW
Listed hereafter are those issues of law upon which there is agreement by the parties:
The SBBC is an "educational unit" as defined in Section 120.52(1)(b)(7) and (6), Florida Statutes,[19] and is granted rulemaking authority by the Florida Legislature pursuant to Section 1002.41(2), Florida Statutes.[20]
The City has standing to bring this challenge that the alleged unadopted rule exists.
DISPUTED ISSUES OF LAW
The following issues of law are in dispute and remain to be determined by the Administrative Law Judge:
1. Whether the SBBC has an unwritten policy statement that excludes all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes, that constitutes a rule within the meaning of Section 120.52(16), Florida Statutes, and an unadopted rule within the meaning of Section 120.52(20), Florida Statutes.
EXHIBITS
The parties may make reference to public records within their briefs and may append same within appendices to their briefs.
WITNESSES
The parties have stipulated that no witnesses will be presented and that they will proceed to address the fundamental legal issue set forth in the Petition via written submission and oral argument.
ISSUES OF FACT THAT REMAIN TO BE LITIGATED
See Section III above.
DISAGREEMENT ON RULES OF EVIDENCE None.
PENDING MOTIONS
Stipulated Motion to Review Timelines.
LENGTH OF TIME OF ORAL ARGUMENT No more than one (1) hour per side.
The undersigned has accepted the stipulations of fact and law set forth in the parties' Joint Pre-Hearing Stipulation (as modified to correct typographical errors) and hereby incorporates them by reference in this Final Order. See
Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative,
52 So. 2d 670, 673 (Fla. 1951)("When a case is tried upon stipulated facts the stipulation is conclusive upon both the trial and appellate courts in respect to matters which may validly be made the subject of stipulation."); Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is bound by the parties'
stipulations."); and Palm Beach Community College v. Department of Administration, Division of Retirement, 579 So. 2d 300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts.
In addition, no other or different facts will be presumed to exist.").
The Stipulated Motion to Revise Timelines (Stipulated Motion) referenced in Section X. of the parties' Joint Pre- Hearing Stipulation was also filed on December 3, 2009. It read as follows:
COME NOW the Petitioner, CITY OF PEMBROKE PINES (referred to herein as "CITY") and Respondent, THE SCHOOL BOARD OF BROWARD
COUNTY, FLORIDA (referred to herein as "SBBC"), by and through [their] respective undersigned attorneys and file this their Stipulated Motion to Revise Timelines and would state as follows:
The Order Canceling Final [H]earing and Granting Joint Motion to Proceed via Written Submissions (with Oral Argument) rendered November 6, 2009 provided that the timelines set forth in the Order could be revised either [upon] a showing of good cause or by stipulation of the parties.
The parties shall file their Joint Pre- [H]earing Stipulation by December 3, 2009, and therefore stipulate to the following revised timelines.
The CITY shall file its Initial Brief with the Division of Administrative Hearings by December 23, 2009.
SBBC shall file its Answer Brief with the Division of Administrative Hearings by January 13, 2010.
The CITY shall file its Reply Brief with the Division of Administrative Hearings by January 25, 2010.
After briefing is closed an oral argument shall be conducted on a date between February 1, 2010 and February 12, 2010 that is compatible with the Administrative Law Judge's calendar and those of the Parties.
There will be no discovery without the permission of the Administrative Law Judge and a showing of good cause by the moving party.
The foregoing timelines may be further revised upon either a showing of good cause or by stipulation of the Parties.
WHEREFORE, the Parties respectfully request that the Administrative Law Judge enter an order consistent with the schedule outlined in this Motion and granting such other relief as the Division of Administrative Hearings deems just and proper.
That same day (December 3, 2009), the undersigned issued an order granting the parties' Stipulated Motion and directing that "this case shall proceed in the manner specified in said Stipulated Motion."
The Initial, Answer, and Reply Briefs were filed in accordance with the foregoing "revised timelines." Oral argument was conducted, by telephone conference call, on February 10, 2010.
FACTS
As noted above, the facts stipulated to by the parties (in their Joint Pre-Hearing Stipulation) have been accepted by the undersigned and incorporated in this Final Order. The parties agree that the lone factual issue that remains for resolution (as stated in the parties' Joint Pre-Hearing Stipulation) is "[w]hether the [School Board] has an unwritten statement that categorically excludes all public charter schools from consideration in distributing funds under Section 1011.71(2), Florida Statutes."
The School Board contends that there is no such "unwritten statement" of policy. The City, on the other hand, argues that the School Board's actions (referenced in the Statement of Stipulated Facts section of the parties' Joint Pre- Hearing Stipulation), coupled with the statements of the Superintendent of Schools (also referenced in this Statement of Stipulated Facts), establish otherwise.
In the undersigned's view, these actions and statements do not support an inference that there exists an unwritten (or, for that matter, any other type of) expression of School Board policy "that categorically excludes all public charter schools
from consideration in distributing funds under Section 1011.71(2), Florida Statutes."
While it is undisputed that "[t]he [School Board] has not allocated any Section 1011.71(2) Funds at any charter school in Broward County, including those charter schools operated by the City[,] for any capital project or any other purpose" (as the parties stipulated to in Statement of Stipulated Fact 9), this does not necessarily mean that the School Board has "categorically exclude[d] all public charter schools from consideration in distributing funds under Section 1011.71(2), Florida Statutes." "[N]ot [having] allocated any Section 1011.71(2) Funds at any charter school" is not the same as not having considered making such allocations. Cf. Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990)("We also explained that, in personal injury cases, '[w]hen the prevailing party's counsel is employed on a contingent fee basis, the trial court must consider a contingency risk factor when awarding a statutorily-directed reasonable attorney fee.' .
. . In view of the Fifth District Court of Appeal's holding in the instant case, we emphasized that the words 'must consider' do not mean 'must apply,' but mean 'must consider whether or not to apply' the contingency fee multiplier."); Riley v. State, 413 So. 2d 1173, 1175 (Fla. 1982)("Because he failed to find the mitigating factors which Riley urged does not mean that he did
not consider the evidence."); Jones v. U.S. Bureau of Prisons, 903 F.2d 1178, 1184 (8th Cir. 1990)("Merely because the Commission refused to alter their decision in favor of parole does not mean they did not consider the mitigating factor."); and Cone v. Astrue, No. 2:07cv865-CSC (WO), 2008 U.S. Dist.
LEXIS 54943 *9 n.5 (M.D. Ala. July 18, 2008)("The fact that the ALJ ultimately concluded that Cone's obesity did not place significant limitations on her ability to work does not mean he did not consider it.").
An examination of the record in the instant case reveals that, since the 2006 amendment to Section 1011.71(2), Florida Statutes, referenced in Statement of Stipulated Fact 16 ("clarifying" that the "allocation of Section 1011.71(2) Funds to a charter school would be permitted at the discretion of a district school board"), the School Board, although not having exercised this discretion to allocate Section 1011.71(2) Funds to charter schools, has indeed considered doing so. Such action on the part of the School Board is inconsistent with its having "an unwritten statement that categorically excludes all public charter schools from consideration in distributing funds under Section 1011.71(2), Florida Statutes." So too are the post-2006 amendment statements made by the Superintendent of Schools to the School Board (referenced in the Statement of Stipulated Facts) concerning the merits of the School Board's "sharing"
Section 1011.71(2) Funds with charter schools. There would be no need for the School Board to address the merits of such a "sharing" arrangement (and for the Superintendent of Schools to advise the School Board on the matter) if, as a matter of policy, the School Board "categorically excludes all public charter schools from consideration in distributing funds under Section 1011.71(2), Florida Statutes."
CONCLUSIONS OF LAW
The instant challenge is being made pursuant to Section 120.56(4), Florida Statutes, which provides as follows:
Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s. 120.54(1)(a). The petition shall include the text of the statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s.
120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54.[21]
The administrative law judge may extend the hearing date beyond 30 days after assignment of the case for good cause. Upon notification to the administrative law judge provided before the final hearing that the agency has published a notice of rulemaking under s. 120.54(3), such notice shall automatically operate as a stay of proceedings pending adoption of the statement as a rule. The administrative law judge may vacate the stay for good cause shown. A stay of proceedings pending rulemaking shall remain in effect so long as the agency is proceeding expeditiously and in good faith to adopt the statement as a
rule. If a hearing is held and the petitioner proves the allegations of the petition, the agency shall have the burden of proving that rulemaking is not feasible or not practicable under s. 120.54(1)(a).[22]
The administrative law judge may determine whether all or part of a statement violates s. 120.54(1)(a). The decision of the administrative law judge shall constitute a final order. The division shall transmit a copy of the final order to the Department of State and the committee. The Department of State shall publish notice of the final order in the first available issue of the Florida Administrative Weekly.
If an administrative law judge enters a final order that all or part of an agency statement violates s. 120.54(1)(a), the agency shall immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for agency action. This paragraph shall not be construed to impair the obligation of contracts existing at the time the final order is entered.
If proposed rules addressing the challenged statement are determined to be an invalid exercise of delegated legislative authority as defined in s. 120.52(8)(b)-(f), the agency must immediately discontinue reliance on the statement and any substantially similar statement until rules addressing the subject are properly adopted, and the administrative law judge shall enter a final order to that effect.
All proceedings to determine a violation of s. 120.54(1)(a) shall be brought pursuant to this subsection. A proceeding pursuant to this subsection may be consolidated with a proceeding under subsection (3) or under any other section of this chapter. This paragraph does not prevent a party whose substantial interests
have been determined by an agency action from bringing a proceeding pursuant to s. 120.57(1)(e).
The parties have stipulated, in their Joint Pre-Hearing Stipulation, that the "City has standing to bring this challenge" (or, in other words, that the City is a "person substantially affected," within the meaning of Section 120.56(4)(a), Florida Statutes).23 See also § 120.52(14), Fla. Stat. ("'Person' means . . . any unit of government in or outside the state ").
To be an "agency statement," within the meaning of Section 120.56(4), Florida Statutes, a challenged statement must have been made by an "agency," as that term is defined in Section 120.52(1), Florida Statutes, which provides as follows:
"Agency" means the following officers or governmental entities if acting pursuant to powers other than those derived from the constitution:
The Governor; each state officer and state department, and each departmental unit described in s. 20.04; the Board of Governors of the State University System; the Commission on Ethics; the Fish and Wildlife Conservation Commission; a regional water supply authority; a regional planning agency; a multicounty special district, but only when a majority of its governing board is comprised of nonelected persons; educational units[24]; and each entity described in chapters 163, 373, 380, and 582 and s. 186.504.
Each officer and governmental entity in the state having statewide jurisdiction or jurisdiction in more than one county.
Each officer and governmental entity in the state having jurisdiction in one county or less than one county, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.
This definition does not include any municipality or legal entity created solely by a municipality; any legal entity or agency created in whole or in part pursuant to part II of chapter 361; any metropolitan planning organization created pursuant to s. 339.175; any separate legal or administrative entity created pursuant to s.
339.175 of which a metropolitan planning organization is a member; an expressway authority pursuant to chapter 348 or any transportation authority under chapter 343 or chapter 349; or any legal or administrative entity created by an interlocal agreement pursuant to s. 163.01(7), unless any party to such agreement is otherwise an agency as defined in this subsection.
The parties have stipulated that the School Board meets this definition of an "agency" inasmuch as it is an "educational unit," as that term is used in Section 120.52(1), Florida Statutes.25 See also School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1231 (Fla. 2009)("No one disputes that a school board is an 'agency' as that term is defined in the APA."); Volusia County School Board v. Volusia Homes Builders Association, 946 So. 2d 1084, 1089 (Fla. 5th DCA 2006)("[T]he School Board is an agency subject to
the Administrative Procedure Act."); Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993)("A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders."); and Witgenstein v. School Board of Leon County, 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977)("It was obviously the legislative intent to include local school districts within the operation of Chapter 120.").
An "agency statement" may be challenged pursuant to Section 120.56(4), Florida Statutes, only on the ground that it violates Section 120.54(1)(a), Florida Statutes,26 which provides as follows:
Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.
Rulemaking shall be presumed feasible unless the agency proves that:
The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or
Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking.
Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles,
criteria, or standards for agency decisions unless the agency proves that:
Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or
The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication to determine the substantial interests of a party based on individual circumstances.
See Southwest Florida Water Management District v. Charlotte
County, 774 So. 2d 903, 908-09 (Fla. 2d DCA 2001)("The basis for a challenge to an agency statement under this section [Section 120.56(4), Florida Statutes] is that the agency statement constitutes a rule as defined by section 120.52(15), Florida Statutes (Supp. 1996), but that it has not been adopted by the rule-making procedure mandated by section 120.54. In the present case, the challenges to the existing and proposed agency statement on the grounds that they represent an invalid delegation of legislative authority are distinct from a section 120.56(4) challenge that the agency statements are functioning as unpromulgated rules."); Zimmerman v. Department of Financial Services, Office of Insurance Regulation, No. 05-2091RU, slip op. at 11 (Fla. DOAH August 24, 2005)(Summary Final Order of Dismissal)("An agency statement constituting a rule may be challenged pursuant to Section 120.56(4), Florida Statutes, only
on the ground that 'the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54.'"); Florida Association of Medical Equipment Services v. Agency for Health Care Administration, No. 02-1314RU, slip op. at 6 (Fla. DOAH October 25, 2002)(Order on Motions for Summary Final Order)("[I]n a Section 120.56(4) proceeding which has not been consolidated with a proceeding pursuant to Section 120.57(1)(e), the issue whether a rule-by-definition is substantively invalid for reasons set forth in Section 120.52(8)(b)-(g), Florida Statutes, should not be reached. That being so, the ultimate issues in this case are whether the alleged agency statements are rules-by-definition and, if so, whether their existence violates Section 120.54(1)(a)."); and Johnson v. Agency for Health Care Administration, No. 98-3419RU, 1999 Fla. Div. Adm.
Hear. LEXIS 5180 *15 (Fla. DOAH May 18, 1999)(Final Order of Dismissal)("It is apparent from a reading of subsection (4) of Section 120.56, Florida Statutes, that the only issue to be decided by the administrative law judge in a proceeding brought under this subsection is 'whether all or part of [the agency] statement [in question] violates s. 120.54(1)(a),' Florida Statutes ").
The sole substantive remedy available under Section 120.56(4), Florida Statutes, for a violation of Section 120.54(1)(a), Florida Statutes, is prospective injunctive
relief. See Zimmerman, slip op. at 11 ("The statute [Section 120.56(4), Florida Statutes] is forward-looking in its approach. It is designed to prevent future agency action based on statements not adopted in accordance with required rulemaking procedures, not to provide a remedy for final agency action (based on such statements) that has already been taken.").27 If a violation is found, the agency must, pursuant to Section 120.56(4)(d), "immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for agency action."28 See Agency for Health Care Administration v.
HHCI Ltd. Partnership, 865 So. 2d 593, 596 (Fla. 1st DCA 2004). In addition, "unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds," the agency must also pay the successful challenger's reasonable costs and attorney's fees pursuant to Section 120.595(4), Florida Statutes.
An "agency statement" constitutes a "rule" subject to the rulemaking requirements of Section 120.54, Florida Statutes, if it falls within the following definition of that term set forth in Section 120.52(16), Florida Statutes:
"Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any
form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
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.
Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.[29]
Statements, memoranda, or instructions to state agencies issued by the Chief Financial Officer or Comptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the Chief Financial Officer or Comptroller.
Contractual provisions reached as a result of collective bargaining.
Memoranda issued by the Executive Office of the Governor relating to information resources management.
Only "agency statements" of "general applicability," that is, those statements which are intended by their own effect to create or adversely effect rights, to require compliance, or to otherwise have the direct and consistent effect of law, fall within this definition. See Agency for Health Care
Administration v. Custom Mobility, Inc., 995 So. 2d 984, 986 (Fla. 1st DCA 2008); Florida Department of Financial Services v. Capital Collateral Regional Counsel-Middle Region, 969 So. 2d 527, 530 (Fla. 1st DCA 2007); Department of Highway Safety and
Motor Vehicles v. Schluter, 705 So. 2d 81, 82 (Fla. 1st DCA 1997); Department of Revenue v. Vanjaria Enterprises, Inc., 675 So. 2d 252, 255 (Fla. 5th DCA 1996); Balsam v. Department of Health and Rehabilitative Services, 452 So. 2d 976, 977-978 (Fla. 1st DCA 1984); and McDonald v. Department of Banking and Finance, 346 So. 2d 569, 581 (Fla. 1st DCA 1977).
Accordingly, "[a] recommendation [such as the ones made by Superintendent of Schools to the School Board against "sharing [its] capital outlay millage"] which, standing alone, does not 'require compliance, create certain rights while adversely affecting others, or otherwise have the direct and consistent effect of law,' does not constitute a rule." Capital Collateral Regional Counsel-Middle Region, 969 So. 2d at 530 (Fla. 1st DCA 2007); see also Volusia Homes Builders Association, 946 So. 2d at 1090 ("The County Council's February 2005 decision to impose the increased impact fees -- which, in contrast to the [School Board's] recommendation, did affect the VHBA's rights -- did not retroactively render the [School Board's] January 2005 recommendation into a rule with the direct and consistent force of law. Nor will we consider the School
Board's recommendation and approval a rule, despite the VHBA's implication that the recommendation substantially affected its interests because Volusia County, though not legally required to do so, did in fact rely on the recommendation.").
Likewise, "an agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rule making." St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989); see also National Foundation to Prevent Child Sexual Abuse, Inc., v. Department of Law Enforcement, No. 07-4898RU, 2007 Fla. Div. Adm. Hear. LEXIS 648 *40 (Fla. DOAH November 27, 2007)(Summary Final Order)("Significantly, the Challenged Statement does not, by its own terms, establish any new fee requirements or procedures. Rather, it attempts merely to summarize, for the benefit of interested members of the public, existing requirements and procedures that have been established elsewhere . . . ."); Reynolds v. Board of Trustees of the Internal Improvement Trust Fund, No. 03-4478RU, 2004 Fla.
ENV LEXIS 222 *15-16 (Fla. DOAH February 20,2004)(Final
Order)("Lastly, regarding the first statement challenged, the history surrounding driving on the beach and regulation by the BOT indicates that the Legislature has limited BOT's jurisdiction to regulate driving on the beach by Section 161.58, Florida Statutes. The challenged statement is [a] re-statement of the scheme of statutory regulation, and not a statement of BOT policy."); and Aloha Utilities, Inc. v. Public Service Commission, No. 97-2485RU, 1998 Fla. Div. Adm. Hear. LEXIS 5497
*29 (Fla. DOAH 1998)(Final Order)("Statements simply reiterating statutory or rule requirements also are not rules under Sections 120.52(15) and 120.74(1)(d), Florida Statutes (1997).").
To qualify as a "rule," an "agency statement" need not have been reduced to writing. See Schluter, 705 So. 2d at 86 ("[W]e find no support for Judge Benton's argument that an agency's policy statement must be in writing before it can be considered a nonadopted rule."); Department of Health, Board of Pharmacy v. Rx Network of South Florida, LLC, Nos. 02-2976, 02- 2977, 02-2978PL, and 02-2980PL, 2003 Fla. Div. Adm. Hear. LEXIS 1024 *93 (Fla. DOAH January 10, 2003)(Recommended Order)("The unwritten form of an agency statement does not prevent the statement from satisfying the statutory definition of a rule in Section 120.52(15)."); and Florida Association of Insurance
Agents and Professional Insurance Agents of Florida v. Department of Insurance, No. 01-1427RU, 2001 Fla. Div. Adm. Hear. LEXIS 2732 *43 (Fla. DOAH August 21, 2001)(Final Order)("Because the focus is on effect rather than form, a statement need not be in writing to be a rule-by-definition."). The absence of a written document containing the text of the statement, however, may make it more difficult for the petitioner in a Section 120.56(4) proceeding to establish the actual existence of the alleged "agency statement" it is challenging, particularly where there is no direct testimonial evidence supporting such a finding. Cf. Haynesworth v. Miller, 820 F.2d 1245, 1273 n.232 (D.C. Cir. 1987)("While the existence of an unwritten policy of general application may be more difficult to prove than a formal edict promulgated through official channels, once established it provides a basis for fastening liability on the municipality."); and Heit v. Van Ochten, 126 F. Supp. 2d 487, 490 (W.D. Mich. 2001)("[T]he class complains of unwritten policies, and unwritten policies are exceedingly more difficult to prove than written policies.").
Absent such direct evidence, the petitioner must resort to relying on circumstantial evidence from which the statement's existence may be reasonably inferred or extrapolated. Such circumstantial evidence may include agency conduct.
Petitions seeking relief under Section 120.56(4), Florida Statutes, if found by DOAH's director to meet the pleading requirements of the statute, are assigned to an administrative law judge, who has the authority to determine, by final order, "whether all or part of [the] statement [being challenged] violates [Section] 120.54(1)(a) [Florida Statutes]."
§ 120.56(4)(c), Fla. Stat.
The petitioner bears the burden of proving by a preponderance of the evidence, as determined by the administrative law judge, that the challenged "agency statement" actually exists and is operative and effective30; that it constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes; and that it has not been adopted in accordance with Section 120.54, Florida Statutes. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 930, 934 (Fla. 1996)("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."); and § 120.56(1)(e), Fla. Stat. ("Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence.").
In the instant Section 120.56(4) proceeding, the City is "challeng[ing] as an unadopted rule an alleged unwritten policy of the [School Board] that allegedly excludes all charter
schools, including the City's charter schools, from consideration in distribution of funds under Section 1011.71(2), Florida Statutes." As noted in the Facts section of this Final Order, there has been an inadequate showing that such an "unwritten policy" exists. But, even if this "unwritten policy" did exist, it would not constitute a "rule," as defined in Section 120.52(16), Florida Statutes, and therefore would not be subject to challenge pursuant to Section 120.56(4), Florida Statutes. This is because it would fall within the "[a]gency budget" exception set forth in Section 120.52(16)(c)1., Florida Statutes. See Palm Beach County Classroom Teachers Association v. School Board of Palm Beach County, 406 So. 2d 1208, 1209-10 (Fla. 4th DCA 1981)("CTA requested the School Board to hold an administrative hearing pursuant to Section 120.57, Florida Statutes (1980), to determine the priority for allocation of the funds appropriated in SAA [Supplemental Appropriations Act]. On January 21, 1981, the Board entered a 'Final Order' denying the CTA request for a hearing. . . . From the foregoing order CTA has appealed, contending that it was entitled to an administrative hearing pursuant to Section 120.57, Florida Statutes (1980). . . . We have no difficulty with appellant's argument that it is the certified bargaining representative of classroom teachers and that in a proper case it is entitled to represent the teachers in matters where their interests are
substantially determined. However, we hold that the allocation and disbursement of the funds received through the SAA involves the modification of the agency's budget which entails neither rule making nor an order within the meaning of those terms as set forth in Section 120.52, Florida Statutes (1980). There was, therefore, no necessity for the Board to provide CTA with a hearing required by Section 120.57."); Feimster-Peterson, Inc. v. Florida A & M University, No. 91-1426BID, 1991 Fla. Div. Adm. Hear. LEXIS 6658 *36 (Fla. DOAH September 18, 1991)(Recommended Order)("[A] budget is a plan on how to spend certain funds."); and South County Mental Health Center v. Department of Health and Rehabilitative Services, No. 89-6088, 1990 Fla. Div. Adm.
Hear. LEXIS 6252 **25-26 (Fla. DOAH March 28, 1990)(Recommended Order)("The Division of Administrative Hearings has no jurisdiction over this dispute [concerning the Department's distribution of crisis stabilization unit deficiency funds].
The preparation, modification or allocation of agency budgets are not reviewable in Section 120.57(1) substantial interest proceedings. The legislative definitions of the terms 'rule' and 'order,' when read together, exempt the budgeting issues South County has raised from administrative challenge. Section 120.52(16) defines what a rule is. Under subsection (c), 'rule' is defined so as not to include 'the preparation or modification of: 1) agency budgets.' An 'order' is defined in Section
120.52(11) as: 'a final agency decision which does not have the effect of a rule [and] which is not excepted from the definition of a rule. . . .' Thus, the preparation or modification of agency budgets are neither rules nor orders. The
definition [of rule] ultimately enacted by the Legislature [in Section 120.52, Florida Statutes] is greatly at odds with the definition and commentary on the term 'rule' in the text of the Reporter's Final Draft Statute. The Legislature rejected the Reporter's view, and insulated the acts of agencies in formulating and allocating budgeted appropriations from review in Chapter 120 proceedings by providing that such allocations are neither rules nor orders. These legislative history materials are not discussed in the decision of the Court of Appeal[] in Palm Beach County Classroom Teachers Association v. School Board of Palm Beach County, 406 So. 2d 1208 (Fla. 1st DCA 1981), but the court's decision is consistent with them. That court held that a disappointed competitor for appropriated funds, the Classroom Teachers Association, could not use a Section 120.57(1) substantial interest proceeding to increase the School Board's intended allocation of funds for salary increases for instructional personnel. Similarly, South County may not challenge the allocations of CSU [crisis stabilization unit] deficiency funds here. The issue South County has raised falls outside the range of disputes which may be resolved under
Chapter 120."). Under this "[a]gency budget" exception, policy decisions made by a district school board concerning the discretionary allocation of Section 1011.71(2) Funds, such as the alleged policy decision complained about in the instant case, do not constitute "rules," as defined in Chapter 120, Florida Statutes, inasmuch as the making of these policy decisions is a part of the budget preparation/modification process. These decisions, therefore, are not subject to challenge pursuant to Section 120.56, Florida Statutes.31
In light of the foregoing, the City cannot prevail in this Section 120.56(4) proceeding, and its petition must be dismissed.
ORDER
Based on the foregoing, it is ORDERED that:
the relief requested by the City in its petition filed with DOAH pursuant to Section 120.56(4), Florida Statutes, is DENIED, and its petition is DISMISSED.
DONE AND ORDERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 16th day of February, 2010.
ENDNOTES
1 Unless otherwise specified, all references to Florida Statutes in this Final Order are to Florida Statutes (2009).
2 The School Board is a creature, not of statute, but of the Florida Constitution, specifically Article IX, Section 4, thereof, which provides, in pertinent part, as follows:
Each county shall constitute a school district; . . . . In each school district there shall be a school board composed of five or more members chosen by vote of the electors in a nonpartisan election for appropriately staggered terms of four years, as provided by law.
The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein. . . .
See Dunbar Electric Supply v. School Board of Dade County, 690 So. 2d 1339, 1340 (Fla. 3d DCA 1997)("School boards are constitutional entities created by Article IX, Section 4 of the Florida Constitution. School boards do not fall within the executive branch of the state government."). The taxing authority of district school boards is addressed in Article VII, Section 7, of the Florida Constitution, which provides, in pertinent part, as follows:
[S]chool districts . . . shall . . . be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their . . . purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this constitution.
Ad valorem taxes . . . shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: . . . for all school purposes, ten mills; . . . .
"[L]egislative authorization is required to trigger this provision; it is not self-executing." Florida Department of Education v. Glasser, 622 So. 2d 944, 947 (Fla. 1993).
3 See § 1002.33(1), Fla. Stat. ("Charter schools shall be part of the state's program of public education. All charter schools in Florida are public schools. . . ."). Although they are public schools, charter schools are operated, not by the district school board of the district within which they are located, but rather by the charter school's governing board (in accordance with the school's charter). See § 1002.33(6)(i), (7), and (9)(i) Fla. Stat.
4 Section 1011.71(2), Florida Statutes, which implements Article VII, Section 7, of the Florida Constitution, currently provides as follows:
In addition to the maximum millage levy as provided in subsection (1), each school board may levy not more than 1.5 mills against the taxable value for school purposes for district schools, including
charter schools at the discretion of the school board, to fund:
New construction and remodeling projects, as set forth in s. 1013.64(3)(b) and (6)(b) and included in the district's educational plant survey pursuant to s. 1013.31, without regard to prioritization, sites and site improvement or expansion to new sites, existing sites, auxiliary facilities, athletic facilities, or ancillary facilities.
Maintenance, renovation, and repair of existing school plants or of leased facilities to correct deficiencies pursuant to s. 1013.15(2).
The purchase, lease-purchase, or lease of school buses.
Effective July 1, 2008, the purchase, lease-purchase, or lease of new and replacement equipment, and enterprise resource software applications that are classified as capital assets in accordance with definitions of the Governmental Accounting Standards Board, have a useful life of at least 5 years, and are used to support districtwide administration or state-mandated reporting requirements.
Payments for educational facilities and sites due under a lease-purchase agreement entered into by a district school board pursuant to s. 1003.02(1)(f) or s. 1013.15(2), not exceeding, in the aggregate, an amount equal to three-fourths of the proceeds from the millage levied by a district school board pursuant to this subsection. For the 2009-2010 fiscal year, the three-fourths limit is waived for lease- purchase agreements entered into before
June 30, 2009, by a district school board pursuant to this paragraph.
Payment of loans approved pursuant to ss. 1011.14 and 1011.15.
Payment of costs directly related to complying with state and federal environmental statutes, rules, and regulations governing school facilities.
Payment of costs of leasing relocatable educational facilities, of renting or leasing educational facilities and sites pursuant to s. 1013.15(2), or of renting or leasing buildings or space within existing buildings pursuant to s. 1013.15(4).
Payment of the cost of school buses when a school district contracts with a private entity to provide student transportation services if the district meets the requirements of this paragraph.
The district's contract must require that the private entity purchase, lease- purchase, or lease, and operate and maintain, one or more school buses of a specific type and size that meet the requirements of s. 1006.25.
Each such school bus must be used for the daily transportation of public school students in the manner required by the school district.
Annual payment for each such school bus may not exceed 10 percent of the purchase price of the state pool bid.
The proposed expenditure of the funds for this purpose must have been included in the district school board's notice of proposed tax for school capital outlay as provided in s. 200.065(10).
Payment of the cost of the opening day collection for the library media center of a new school.
Before levying the additional tax authorized by Section 1011.71(2), Florida Statutes, and allocating the funds generated by this additional tax, a district school board must comply with the procedural requirements of Section 200.065(10), Florida Statutes, which provides as follows:
In addition to the notice required in subsection (3), a district school board shall publish a second notice of intent to levy additional taxes under s. 1011.71(2). Such notice shall specify the projects or number of school buses anticipated to be funded by such additional taxes and shall be published in the size, within the time periods, adjacent to, and in substantial conformity with the advertisement required under subsection (3). The projects shall be listed in priority within each category as follows: construction and remodeling; maintenance, renovation, and repair; motor vehicle purchases; new and replacement equipment; payments for educational facilities and sites due under a lease- purchase agreement; payments for renting and leasing educational facilities and sites; payments of loans approved pursuant to ss. 1011.14 and 1011.15; payment of costs of compliance with environmental statutes and regulations; payment of premiums for property and casualty insurance necessary to insure the educational and ancillary plants of the school district; payment of costs of leasing relocatable educational facilities; and payments to private entities to offset the cost of school buses pursuant to s. 1011.71(2)(i). The additional notice shall be in the following form, except that if the district school board is proposing to levy the same millage under s. 1011.71(2) which it levied in the prior year, the words "continue to" shall be inserted before the word "impose" in the first sentence, and except that the second sentence of the second paragraph shall be deleted if the
district is advertising pursuant to paragraph (3)(e):
NOTICE OF TAX FOR SCHOOL CAPITAL OUTLAY
The (name of school district) will soon consider a measure to impose a (number) mill property tax for the capital outlay projects listed herein.
This tax is in addition to the school board's proposed tax of (number) mills for operating expenses and is proposed solely at the discretion of the school board. THE PROPOSED COMBINED SCHOOL BOARD TAX INCREASE FOR BOTH OPERATING EXPENSES AND CAPITAL OUTLAY IS SHOWN IN THE ADJACENT NOTICE.
The capital outlay tax will generate approximately $(amount), to be used for the following projects:
(list of capital outlay projects)
All concerned citizens are invited to a public hearing to be held on (date and time) at (meeting place).
A DECISION on the proposed CAPITAL OUTLAY TAXES will be made at this hearing.
In the event a school district needs to amend the list of capital outlay projects previously advertised and adopted, a notice of intent to amend the notice of tax for school capital outlay shall be published in conformity with the advertisement required in subsection (3). A public hearing to adopt the amended project list shall be held not less than 2 days nor more than 5 days after the day the advertisement is first published. The projects should be listed under each category of new, amended, or deleted projects in the same order as required in paragraph (a). The notice shall appear in the following form, except that
any of the categories of new, amended, or deleted projects may be omitted if not appropriate for the changes proposed:
AMENDED NOTICE OF TAX FOR SCHOOL CAPITAL OUTLAY
The School Board of (name) County will soon consider a measure to amend the use of property tax for the capital outlay projects previously advertised for the (year) to (year) school year.
New projects to be funded:
(list of capital outlay projects)
Amended projects to be funded:
(list of capital outlay projects) Projects to be deleted:
(list of capital outlay projects)
All concerned citizens are invited to a public hearing to be held on (date and time) at (meeting place).
A DECISION on the proposed amendment to the projects funded from CAPITAL OUTLAY TAXES will be made at this meeting.
The purpose of these procedural requirements is to "[l]et the elected officials [on the district school board] answer directly to the electors" and engage in "meaningful dialogue" with them before any action is taken by the district school board to levy the tax and allocate the funds collected. Wilson v. School Board of Marion County, 424 So. 2d 16, 20 (Fla. 5th DCA 1982).
This is similar to the purpose served by the rulemaking requirements prescribed by Section 120.54, Florida Statutes. See Bouldin v. Okaloosa County, 580 So. 2d 205, 209 (Fla. 1st DCA 1991)("The obvious intent and purpose of these statutory provisions [Sections 336.09 and 336.10, Florida Statutes] is to require the board of county commissioners to provide ample
notice of a public hearing at which the road closing will be considered, and to afford all interested citizens a reasonable opportunity to participate and be heard. The process required to abandon or close a public road under those sections is similar in purpose to rulemaking under section 120.54 of the Florida Administrative Procedures Act."); and Adam Smith Enterprises v. Department of Environmental Regulation, 553 So. 2d 1260, 1270 (Fla. 1st DCA 1989)("The purpose of the rulemaking proceedings authorized by Section 120.54(3) is twofold: (1) to allow the agency to inform itself about the positions and problems of those who seek to present evidence and argument; and
(2) to allow the public and others with particular interest in or information about the proposed rule to participate in the formulation of agency policy. The intention of the Section 120.54(3) proceeding is to facilitate the exchange of information and not to be restrictive through the technical use of evidentiary rules. Such proceedings are designed to inform an agency to its fullest, and are not intended to adjudicate any issues or to be conducted in an adversarial manner.").
5 The School Board's allocation of Section 1011.71(2) Funds through the budgetary process is a "quintessential legislative function[]." Parker v. Laurel County Detention Center, No. 6: 05-113-DCR, 2005 U.S. Dist. LEXIS 26726 *8 (E.D. Ky. November 3, 2005).
6 "Educational plant surveys" are required by Section 1013.31, Florida Statutes. According to Subsection (1)(a) of the statute, they must "include at least an inventory of existing educational and ancillary plants, including safe access facilities; recommendations for existing educational and ancillary plants; recommendations for new educational or ancillary plants, including the general location of each in coordination with the land use plan and safe access facilities; campus master plan update and detail for community colleges; the utilization of school plants based on an extended school day or year-round operation; and such other information as may be required by the Department of Education." "The school district's survey must be submitted [to the Department of Education] as a part of the district educational facilities plan defined in s. 1013.35." § 1013.31(1)(b)1., Fla. Stat.
7 Pursuant to Section 1013.35, Florida Statutes, each year, each district school board must prepare and then adopt a "district educational facilities plan" that has, as a component, "a financially feasible district facilities work program for a
year period" (referred to in the statute as a "district facilities work program") containing a "listing of capital outlay projects adopted by the district school board." Subsection (4) of the statute provides that "[t]he first year of the adopted district educational facilities plan shall constitute the capital outlay budget required in s. 1013.61," which, in turn, provides as follows:
Each [district school] board shall, each year, adopt a capital outlay budget for the ensuing year in order that the capital outlay needs of the board for the entire year may be well understood by the public. This capital outlay budget shall be a part of the annual budget and shall be based upon and in harmony with the board's capital outlay plan. This budget shall designate the proposed capital outlay expenditures by project for the year from all fund sources. The board may not expend any funds on any project not included in the budget, as amended. Each district school board must prepare its tentative district educational facilities plan as required by s. 1013.35 before adopting the capital outlay budget.
see also § 1011.012, Fla. Stat., which provides, in pertinent part, as follows:
Each district school board . . . shall, each year, adopt a capital outlay budget for the ensuing year in order that the capital outlay needs of the board for the entire year may be well understood by the public. This capital outlay budget shall be a part of the annual budget and shall be based upon and in harmony with the educational plant and ancillary facilities plan. This budget shall designate the proposed capital outlay expenditures by project for the year from all fund sources. The board may not expend any funds on any project not included in the budget, as amended.
Each district school board must prepare its tentative district facilities work
program as required by s. 1013.35 before adopting the capital outlay budget.
8 Pursuant to the plain and unambiguous language (requiring no interpretation) that has been in place in Section 1011.71(2), Florida Statutes, since July 1, 2006, a district school board's "allocat[ion]" of Section 1011.71(2) Funds is a purely discretionary act to which no charter school located within the district's jurisdictional boundaries has a legal entitlement (and, as a result, a district school board's "not allocat[ing] any Section 1011.71(2) Funds at any charter school" does not implicate the substantial interests of any of the charter schools in the district). Cf. D. M. v. Dobuler, 947 So. 2d 504,
509 (Fla. 3d DCA 2006)("[W]here the language of a statute is unambiguous and clear, there is no room for interpretation."); Herold v. University of South Florida, 806 So. 2d 638 (Fla. 2d DCA 2002) ("[A] substantial interest is one based on a legal entitlement, and not on a mere unilateral expectation."); Miami- Dade County v. Palmetto Bay, 744 So. 2d 1076, 1077 (Fla. 3d DCA 1999)("As indicated above, one of the prerequisites that must be satisfied before the Board could authorize incorporation would be the holding of an election. However, the Board need only hold an election if, and only if, the Board makes the purely discretionary decision to move forward towards authorizing incorporation. Accordingly, as with all political decisions that are purely discretionary, because Appellees cannot demonstrate 'a clear legal right to the performance of a ministerial duty' namely, the holding of an election, mandamus was inappropriately granted in the instant matter."); Gobie v. Florida Parole and Probation Commission, 416 So. 2d 838, 840 (Fla. 1st DCA 1982)("[T]here is no right to parole, even subsequent to the enactment of the Objective Parole Guidelines Act. Parole lies within the sound discretion of the Commission."); and Straley v. Utah Board of Pardons, 582 F.3d 1208, 1214 (10th Cir. 2009)("[A] prisoner enjoys no substantive expectation for parole. Thus, the mere existence of a purely discretionary parole authority creates no entitlement and, therefore, no concomitant federal due process interest.") (citation omitted).
9 Article IX, Section 5, of the Florida Constitution provides that "[i]n each school district there shall be a superintendent of schools." "The district school superintendent is the secretary and executive officer of the district school board, and as such, is responsible for the administration and management of schools and for the supervision of instruction in
the school district." McCalister v. School Board of Bay County, 971 So. 2d 1020, 1024 (Fla. 1st DCA 2008). The "[g]eneral powers of district school superintendent[s]" are set forth in Section 1001.49, Florida Statutes, which provides as follows:
The district school superintendent shall have the authority, and when necessary for the more efficient and adequate operation of the district school system, the district school superintendent shall exercise the following powers:
GENERAL OVERSIGHT. --Exercise general oversight over the district school system in order to determine problems and needs, and recommend improvements.
ADVISE, COUNSEL, AND RECOMMEND TO DISTRICT SCHOOL BOARD. --Advise and counsel with the district school board on all educational matters and recommend to the district school board for action such matters as should be acted upon.
RECOMMEND POLICIES. --Recommend to the district school board for adoption such policies pertaining to the district school system as the district school superintendent may consider necessary for its more efficient operation.
RECOMMEND AND EXECUTE RULES. --Prepare and organize by subjects and submit to the district school board for adoption such rules to supplement those adopted by the State Board of Education as, in the district school superintendent's opinion, will contribute to the efficient operation of any aspect of education in the district. When rules have been adopted, the district school superintendent shall see that they are executed.
RECOMMEND AND EXECUTE MINIMUM STANDARDS. --From time to time prepare, organize by subject, and submit to the
district school board for adoption such minimum standards relating to the operation of any phase of the district school system as are needed to supplement those adopted by the State Board of Education and as will contribute to the efficient operation of any aspect of education in the district and ensure that minimum standards adopted by the district school board and the state board are observed.
PERFORM DUTIES AND EXERCISE RESPONSIBILITIES. --Perform such duties and exercise such responsibilities as are assigned to the district school superintendent by law and by rules of the State Board of Education.
10 This April 28, 2006, letter was appended to the Initial Brief of the City (as Exhibit 3). It read, in pertinent part, as follows:
This letter is sent to follow up on our meeting concerning your letter of
February 2, 2006 and Resolution 3068 of the City Commission of the City of Pembroke Pines. During that meeting, two issues were identified for referral to the School Board Attorney. This memorandum is furnished to advise you of our attorney's analysis of those issues.
Issue One: Is The School Board authorized to deliver to the City of Pembroke Pines that portion of the 2.0 mil[l] tax levy for construction and deb[]t service local revenues that would be proportionate to the number of students enrolled in the City's municipal charter schools?
The answer to this question is no. A district school board is limited by Section 1011.71, Florida Statutes, as to the purposes for which it may expend the revenues derived from the 2 mil[l] tax levy. The permitted expenditures do not include
delivery of those revenues to a charter school. While charter schools lack the ability to levy taxes to pay for their capital needs, Section 1013.62, Florida Statutes, provides a mechanism whereby charter schools may be eligible for funding appropriated for charter school capital outlay purposes. The adequacy of appropriations under Section 1013.62 for charter school capital outlay needs is a legislative issue beyond this district's control.
* * *
I thank you for the opportunity to discuss and review these issues and welcome an opportunity to meet with you[] further if it would assist the City in efforts to serve our community.
As a result of a subsequent amendment (effective July 1, 2006), Section 1011.71(2), Florida Statutes, is no longer reasonably susceptible to the construction given it by the School Board's "special counsel." Cf. School Board of Collier County v.
Florida Teaching Profession National Education Association, 559 So. 2d 1197 (Fla. 2d DCA 1990)("While a challenge to this rule under section 230.03(2), Florida Statutes, prior to 1983 may have been sustainable, we do not address this issue as it is not before us. After the 1983 amendment to section 230.03(2), Florida Statutes, it is obvious that the legislature intended to extend the ability of school boards to delegate to a superintendent the authority to exercise discretion as set forth in this rule."); and Kearney v. Ft. Pierce, 160 So. 2d 99, 100 (Fla. 1964)("As it existed when the case of State v. Sarasota, supra, was decided Sec. 75.06 warranted the interpretation given in that case, but the statute was thereafter amended to its present quite different verbiage which makes the decision in the case of State v. Sarasota inapplicable and appellant's position untenable.").
11 See Ch. 06-190, § 9, Laws of Fla., which added the language, "for district schools, including charter schools at the discretion of the school board," to the introductory paragraph of Section 1011.71(2), Florida Statutes. The Legislature indicated in Chapter 2006-190, Laws of Florida, that, in adding
this language, it was "clarifying the use of funds generated through additional millage." There would have been no need for such "clarif[ication]" had the pre-amendment version of the statute been clear and unambiguous on the matter. Cf. Honda v. Board of Trustees of the Employees Retirement System, 108 Haw. 212, 221 (Haw. 2005)("Were the statutes sufficiently comprehendible, the legislature would have no need to enact clarifications.").
12 Chapter 164, Florida Statutes, creates "a governmental conflict resolution procedure [designed to] provide an equitable, expeditious, effective, and inexpensive method for resolution of conflicts between and among local and regional governmental entities," enabling "conflicts between governmental entities [to] be resolved to the greatest extent possible without litigation." § 164.102, Fla. Stat.
13 This "joint meeting" was governed by the provisions of Section 164.1055(1), Florida Statutes, which provides as follows:
Failure to resolve a conflict after following authorized procedures as specified in s. 164.1053 shall require the scheduling of a joint public meeting between the primary conflicting governmental entities. The governmental entity first initiating the conflict resolution process shall have the responsibility to schedule the joint public meeting and arrange a location. If the entities in conflict agree, the assistance of a facilitator may be enlisted to assist them in conducting the meeting. In this meeting, the governing bodies of the primary conflicting governmental entities shall:
Consider the statement of issues prepared in the conflict assessment phase.
Seek an agreement.
Schedule additional meetings of the entities in conflict, or of their designees, to continue to seek resolution of the conflict.
14 Support for this position is found in The Renaissance Charter School v. Department of Education, No. 08-1309RU, 2008 Fla. Div. Adm. Hear. LEXIS 495 **25-26 (Fla. DOAH December 17, 2008)(Final Order), wherein the administrative law judge held that, "[u]ntil the legislature determines otherwise or a rule has been adopted, [the Florida Department of Education] cannot apply the maximum class-size statute [Section 1003.03, Florida Statutes] to charter schools." The "constitutional class size maximums" referenced in Section 1003.03, Florida Statutes, are described in Subsection (1) of the statute as follows:
Pursuant to s. 1, Art. IX of the State Constitution, beginning in the 2010-2011 school year:
The maximum number of students assigned to each teacher who is teaching core- curricula courses in public school classrooms for prekindergarten through grade
3 may not exceed 18 students.
The maximum number of students assigned to each teacher who is teaching core- curricula courses in public school classrooms for grades 4 through 8 may not exceed 22 students.
The maximum number of students assigned to each teacher who is teaching core- curricula courses in public school classrooms for grades 9 through 12 may not exceed 25 students.
15 This, as well as the first mediation session, were governed by the provisions of Section 164.1055(2), Florida Statutes, which provides as follows:
If no agreement is reached, the primary conflicting governmental entities shall participate in mediation, the costs of which shall be equally divided between the primary conflicting governmental entities. The primary conflicting governmental entities shall endeavor in good faith to select a mutually acceptable mediator. If the primary conflicting governmental entities
are unable to mutually agree on a mediator within 14 days after the joint public meeting, the primary conflicting governmental entities shall arrange for a mediator to be selected or recommended by an independent conflict resolution organization, such as the Florida Conflict Resolution Consortium, and shall agree to accept the recommendation of that independent organization, or shall agree upon an alternate method for selection of a mediator, within 7 business days after the close of that 14-day period. Upon the selection of a mediator, the conflicting governmental entities shall schedule mediation to occur within 14 days, and shall issue a written agreement on the issues in conflict within 10 days of the conclusion of the mediation proceeding. The written agreement shall not be admissible in any court proceeding concerning the conflict, except for proceedings to award attorney's fees under s. 164.1058, where the agreement may be used to demonstrate an entity's refusal to participate in the process in good faith.
16 Section 1002.33(19), Florida Statutes, provides that "[c]harter schools are eligible for capital outlay funds pursuant to s. 1013.62"; see also School Board of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1228 (Fla. 2009)("[C]harter schools are eligible for capital outlay funding under chapter 1013.").
17 Section 1013.62, Florida Statutes, provides as follows:
In each year in which funds are appropriated for charter school capital outlay purposes, the Commissioner of Education shall allocate the funds among eligible charter schools.
To be eligible for a funding allocation, a charter school must:
1.a. Have been in operation for 3 or more years;
Be governed by a governing board established in the state for 3 or more years which operates both charter schools and conversion charter schools within the state;
Be an expanded feeder chain of a charter school within the same school district that is currently receiving charter school capital outlay funds; or
Have been accredited by the Commission on Schools of the Southern Association of Colleges and Schools.
Have financial stability for future operation as a charter school.
Have satisfactory student achievement based on state accountability standards applicable to the charter school.
Have received final approval from its sponsor pursuant to s. 1002.33 for operation during that fiscal year.
Serve students in facilities that are not provided by the charter school's sponsor.
The first priority for charter school capital outlay funding is to allocate to charter schools that received funding in the 2005-2006 fiscal year an allocation of the same amount per capital outlay full-time equivalent student, up to the lesser of the actual number of capital outlay full-time equivalent students in the current year, or the capital outlay full-time equivalent students in the 2005-2006 fiscal year.
After calculating the first priority, the second priority is to allocate excess funds remaining in the appropriation in an amount equal to the per capital outlay full-time
equivalent student amount in the first priority calculation to eligible charter schools not included in the first priority calculation and to schools in the first priority calculation with growth greater than the 2005-2006 capital outlay full-time equivalent students. After calculating the first and second priorities, excess funds remaining in the appropriation must be allocated to all eligible charter schools.
A charter school's allocation may not exceed one-fifteenth of the cost per student station specified in s. 1013.64(6)(b). Before releasing capital outlay funds to a school district on behalf of the charter school, the Department of Education must ensure that the district school board and the charter school governing board enter into a written agreement that provides for the reversion of any unencumbered funds and all equipment and property purchased with public education funds to the ownership of the district school board, as provided for in subsection (3) if the school terminates operations. Any funds recovered by the state shall be deposited in the General Revenue Fund.
A charter school is not eligible for a funding allocation if it was created by the conversion of a public school and operates in facilities provided by the charter school's sponsor for a nominal fee, or at no charge, or if it is directly or indirectly operated by the school district.
Unless otherwise provided in the General Appropriations Act, the funding allocation for each eligible charter school is determined by multiplying the school's projected student enrollment by one- fifteenth of the cost-per-student station specified in s. 1013.64(6)(b) for an elementary, middle, or high school, as appropriate. If the funds appropriated are
not sufficient, the commissioner shall prorate the available funds among eligible charter schools. However, a charter school or charter lab school may not receive state charter school capital outlay funds greater than the one-fifteenth cost per student station formula if the charter school's combination of state charter school capital outlay funds, capital outlay funds calculated through the reduction in the administrative fee provided in s.
1002.33(20), and capital outlay funds allowed in s. 1002.32(9)(e) and (h) exceeds the one-fifteenth cost per student station formula.
Funds shall be distributed on the basis of the capital outlay full-time equivalent membership by grade level, which is calculated by averaging the results of the second and third enrollment surveys. The Department of Education shall distribute capital outlay funds monthly, beginning in the first quarter of the fiscal year, based on one-twelfth of the amount the department reasonably expects the charter school to receive during that fiscal year. The commissioner shall adjust subsequent distributions as necessary to reflect each charter school's actual student enrollment as reflected in the second and third enrollment surveys. The commissioner shall establish the intervals and procedures for determining the projected and actual student enrollment of eligible charter schools.
A charter school's governing body may use charter school capital outlay funds for the following purposes:
Purchase of real property.
Construction of school facilities.
Purchase, lease-purchase, or lease of permanent or relocatable school facilities.
Purchase of vehicles to transport students to and from the charter school.
Renovation, repair, and maintenance of school facilities that the charter school owns or is purchasing through a lease- purchase or long-term lease of 5 years or longer.
Effective July 1, 2008, purchase, lease-purchase, or lease of new and replacement equipment, and enterprise resource software applications that are classified as capital assets in accordance with definitions of the Governmental Accounting Standards Board, have a useful life of at least 5 years, and are used to support schoolwide administration or state- mandated reporting requirements.
Payment of the cost of premiums for property and casualty insurance necessary to insure the school facilities.
Purchase, lease-purchase, or lease of driver's education vehicles; motor vehicles used for the maintenance or operation of plants and equipment; security vehicles; or vehicles used in storing or distributing materials and equipment.
Conversion charter schools may use capital outlay funds received through the reduction in the administrative fee provided in s.
1002.33(20) for renovation, repair, and maintenance of school facilities that are owned by the sponsor.
When a charter school is nonrenewed or terminated, any unencumbered funds and all equipment and property purchased with district public funds shall revert to the ownership of the district school board, as provided for in s. 1002.33(8)(e) and (f). In the case of a charter lab school, any unencumbered funds and all equipment and
property purchased with university public funds shall revert to the ownership of the state university that issued the charter. The reversion of such equipment, property, and furnishings shall focus on recoverable assets, but not on intangible or irrecoverable costs such as rental or leasing fees, normal maintenance, and limited renovations. The reversion of all property secured with public funds is subject to the complete satisfaction of all lawful liens or encumbrances. If there are additional local issues such as the shared use of facilities or partial ownership of facilities or property, these issues shall be agreed to in the charter contract prior to the expenditure of funds.
The Commissioner of Education shall specify procedures for submitting and approving requests for funding under this section and procedures for documenting expenditures.
The annual legislative budget request of the Department of Education shall include a request for capital outlay funding for charter schools. The request shall be based on the projected number of students to be served in charter schools who meet the eligibility requirements of this section. A dedicated funding source, if identified in writing by the Commissioner of Education and submitted along with the annual charter school legislative budget request, may be considered an additional source of funding.
Unless authorized otherwise by the Legislature, allocation and proration of charter school capital outlay funds shall be made to eligible charter schools by the Commissioner of Education in an amount and in a manner authorized by subsection (1).
18 "In Florida, charter schools are funded by both capital and operating funds. Capital funds are intended to completely fund
the construction and debt service of each charter school, while operating funds are used to pay instructional salaries, purchase instructional materials and cover all other expenses needed to operate a school." School Board of Osceola County v. UCP of Central Florida, 905 So. 2d 909, 914 n.7 (Fla. 5th DCA 2005).
19 The appropriate reference is actually only to Section 120.52(6), Florida Statutes. There is no "Section 120.52(1)(b)(7)," Florida Statutes.
20 The appropriate reference is actually to Section 1001.41(2), Florida Statutes, which provides as follows:
The district school board, after considering recommendations submitted by the district school superintendent, shall exercise the following general powers:
Adopt rules pursuant to ss. 120.536(1) and
120.54 to implement the provisions of law conferring duties upon it to supplement those prescribed by the State Board of Education and the Commissioner of Education.
21 A "statement [that] constitutes a rule under s. 120.52 and that the agency has not adopted . . . by the rulemaking procedure provided by s. 120.54" is an "unadopted rule," as defined by Section 120.52(20), Florida Statutes, which provides as follows:
"Unadopted rule" means an agency statement that meets the definition of the term "rule," but that has not been adopted pursuant to the requirements of s. 120.54.
22 The School Board has not raised this infeasibility/ impractability defense in the instant case.
23 The School Board, in its Answer Brief, now argues that the City is not "substantially affected" by the Challenged Statement. Having effectively stipulated otherwise in the Joint Pre-Hearing Stipulation, however, it is foreclosed from making such an argument. See Gunn Plumbing, Inc. v. The Dania Bank,
252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which is appropriate to stipulate is binding upon the parties and the Court."); see also Kissman
v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005)("[T]he sellers waived the issue of the buyer's lack of standing, because they did not raise the issue until closing argument."); Schuster v. Blue Cross and Blue Shield of Florida, 843 So. 2d 909, 912 (Fla. 4th DCA 2003)("There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver."); and Home Builders and Contractors Association v.
Department of Community Affairs, 585 So. 2d 965, 968 (Fla. 1st DCA 1991)("Standing in a Florida administrative proceeding is a judicially created prerequisite based upon statutory language and is not a constitutional jurisdictional requirement.").
24 "Educational unit," as that term is used in Chapter 120, Florida Statues, "means a local school district, a community college district, the Florida School for the Deaf and the Blind, or a state university when the university is acting pursuant to statutory authority derived from the Legislature." § 120.52(6), Fla. Stat.
25 As a district school board, the School Board is also a "legislative body" whose legislative responsibilities include, most significantly for purposes of the instant case, the preparation of an annual budget containing appropriations for, among other things, capital outlay projects. See Sarasota County School District v. Sarasota Classified/Teachers Association, 614 So. 2d 1143, 1149 (Fla. 2d DCA 1993)("The appropriation of funds is the absolute right of the legislative body. The school board had this right [as the legislative body] before it entered into any agreements."); and Citrus Oaks Homeowners Association, Inc. v. Orange County School Board, No. 05-0160RU, 2005 Fla. Div. Adm. Hear. LEXIS 1158 **29-30 (Fla. DOAH August 1, 2005)(Final Order)("Respondent [Orange County School Board] is part of the legislative branch of government rather than the judicial or executive branch.") Section 120.52(1)'s inclusion of district school boards in the definition of "agency" expands upon the "classic definition" of the term (which excludes "legislative bodies" from its scope). See Seattle Master Builders Association v. Pacific Northwest Electric Power and Conservation Planning Council, 786 F.2d 1359, 1373 (9th Cir. 1986)("The classic definition of an 'agency' is 'a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.'").
While district school boards are "legislative bodies," they also have occasion to act in a quasi-judicial capacity. That they do so, however, "does not make [them] into . . . judicial bod[ies]," nor detract from their status as "legislative bodies." Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260, 263 (Fla. 1973).
26 "When section 120.54(1)(a) is read together with section 120.56(4), it becomes clear that the purpose of a section 120.56(4) proceeding is to force or require agencies [that desire to continue to rely on agency statements defined as rules in taking agency action] into the rule adoption process. It provides [these agencies] with incentives to promulgate [these statements as] rules through the formal rulemaking process." Osceola Fish Farmers Association, Inc. v. Division of Administrative Hearings, 830 So. 2d 932, 934 (Fla. 4th DCA 2002).
27 An agency's formulation of policy and making a "rule" is quasi-legislative action, whereas the agency's application of that policy/rule in a particular case constitutes quasi-judicial adjudicatory action. See Evergreen the Tree Treasurers of Charlotte County v. Charlotte County Board of County Commissioners, 810 So. 2d 526, 532 (Fla. 2d DCA 2002), quoting from Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993)("'Generally speaking,
[quasi-]legislative action results in the formulation of a general rule of policy, whereas [quasi-]judicial action results in the application of a general rule of policy.'"); and Kucharczyk v. Regents of the University of California, 946 F. Supp. 1419, 1436 (N.D. Cal. 1996)("[G]enerally a quasi- legislative act is one in which the agency formulates a rule to be applied to all future cases, and an adjudicatory act is one in which a rule is applied to a specific set of existing facts.").
28 "Not every activity of an administrative agency is [agency action] controlled by the [Administrative Procedure] Act [Chapter 120, Florida Statutes]." Department of Transportation v. Blackhawk Quarry Co., 528 So. 2d 447, 449 (Fla. 5th DCA 1988). "Agency action," as that term is used in Chapter 120 "means the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order. The term also includes any denial of a request made under s. 120.54(7)." § 120.52(2), Fla. Stat. To be an "order" constituting "agency action" within the meaning of this
definition, a decision must be neither a rule, nor "excepted from the definition of a rule." § 120.52(7), Fla. Stat. Any activity that is "excepted from the definition of a rule," therefore, is also "excepted from the definition" of "agency action" and, as a result, not "controlled by the [Administrative Procedure] Act."
29 Such budget-related activity is legislative in nature. See Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260, 265 (Fla. 1991)("[T]he power to appropriate state funds is legislative . . . . Furthermore, the power to reduce appropriations, like any other lawmaking, is a legislative function."); State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798, 805 (Fla. 3d DCA 2009), quoting from In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1136 (Fla. 1990)("'Appropriation of funds for the operation of government is a legislative function.'"); Junior v. Reed, 693 So. 2d 586,
589 (Fla. 1st DCA 1997)("A county commissioner could assert a valid claim of absolute immunity for the act of voting on a proposed county budget, for example, because that is a legislative function."); and Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988)("[B]udgetmaking is a quintessential legislative function . . . ."). Were this activity included in Section 120.52(16)'s definition of a "rule" and made subject to the quasi-judicial adjudicatory process established in Chapter 120, Florida Statutes, DOAH, an executive branch agency, through its administrative law judges, would be able to exercise oversight authority over, and in appropriate cases invalidate, budget appropriation decisions made by district school boards as part of the budget process. This would raise constitutional questions. See Sarasota County School District, 614 So. 2d at 1149 ("[T]he school board in its capacity as the legislative body has the absolute right and obligation under the constitution to fund or not fund any agreement entered into between the employees and the school board as their employer. The legislature clearly reserved this right when it enacted section 447.309(2) and made it clear that underfunding an agreement was not an unfair labor practice. Any other rule would permit the executive branch of government, by entering into collective bargaining agreements calling for additional appropriations, to invade the legislative branch's exclusive right to appropriate funds."); see also Department of Agriculture and Consumer Services v. Bonanno, 568 So. 2d 24, 33 (Fla. 1990)(DOAH is part of executive branch of state government). Moreover, permitting a district school board's
budgetmaking decisions to be administratively challenged under Chapter 120, Florida Statutes, could potentially lead to uncertainty and delay, interfering with the efficient operation of the district's schools. Cf. Conway v. Sahm, 202 Misc. 519,
527 (N.Y. Sup. Ct. 1952)("[B]y reason of the late date at which the attack upon the budget was made and the chaos that may result if there is any interference with the adoption of the budget and the levying of the tax for the 1952 fiscal year, insofar as attack is made on the budget for the year 1952, the court will deny the petitioner's application, without costs.").
30 An "agency statement" that has been "abandoned" or "rescinded" is not subject to challenge pursuant to Section 120.56(4), Florida Statutes. See Davis v. Department of Children and Family Services, No. 05-3532RU, 2006 Fla. Div. Adm. Hear. LEXIS 41 *16 (Fla. DOAH February 1, 2006)(Final Order of Dismissal)("The agency statement that Petitioner is seeking to challenge in the instant Section 120.56(4) proceeding is one that Respondent has already 'abandoned' and replaced (with a substantially different policy statement). Because it has been rescinded and thus will not be relied upon by Respondent as a basis for future agency action, it is unnecessary to adjudicate Petitioner's claim that this statement violates Section 120.54(1)(a), Florida Statutes, and he thus is entitled to prospective injunctive relief under Section 120.56(4).3 There being no reason for this case to remain open in light of Respondent's rescission of the Challenged Statement, Petitioner's petition must be, and hereby is, dismissed, and the file of the Division of Administrative Hearings in this case is closed.").
31 That is not to say that school board members may not be held accountable for these decisions. They can be--just not in a quasi-judicial adjudicatory proceeding under Chapter 120, Florida Statutes. Cf. Lowe v. Broward County, 766 So. 2d 1199, 1206 (Fla. 4th DCA 2000)("The [Broward County Domestic Partnership] Act [enacted by the Board of County Commissioners of Broward County] is a political decision by an elected body.
Its wisdom is more properly addressed at the ballot
box . . . ."); and Hortonville Joint School District v. Hortonville Education Association, 426 U.S. 482, 496 (1976)("[B]y virtue of electing them the constituents have declared the Board members qualified to deal with these problems, and they are accountable to the voters for the manner in which they perform.").
COPIES FURNISHED:
Edward J. Pozzuoli, Esquire Stephanie D. Alexander, Esquire Tripp Scott
110 Southeast 6th Street, 15th Floor Fort Lauderdale, Florida 33301
Samuel S. Goren, Esquire
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308
Mr. James F. Notter, Superintendent Broward County School Board
600 Southeast Third Avenue
Fort Lauderdale, Florida 33301-3125
Edward J. Marko, Esquire Robert Paul Vignola, Esquire
Office of the School Board Attorney 600 Southeast Third Avenue-11th Floor Fort Lauderdale, Florida 33301
Scott Boyd, Executive Director and General Counsel
Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Liz Cloud, Program Administrator Administrative Code
Department of State
R. A. Gray Building, Suite 101 Tallahassee, Florida 32399
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 agency 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 |
|---|---|---|
| Feb. 15, 2011 | Mandate | |
| Jan. 31, 2011 | Opinion | |
| Feb. 16, 2010 | DOAH Final Order | Petition challenging as an unadopted rule alleged policy statement of school board is dismissed because Petitioner failed to establish the existence of the alleged policy statement and, even if policy did exist, it would not constitute a rule. |
