STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN G. BRADY, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 78-1362RP

)

RALPH TURLINGTON, et al., )

)

Respondent. )

) QUENTON BLOUNT, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 78-1363RP

)

RALPH TURLINGTON, et al., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, commencing on September 14, 1978, and continuing on September 15, 18, 21 and 22, 1978, in Room 103, Collins Building, Tallahassee, Florida. In addition to these hearing dates, prehearing conferences to dispose of numerous procedural matters and motions were conducted on August 18, 28 and 31, 1978, and on September 6 and 11,

1978.

APPEARANCES

For Petitioners Ralph Armstead and Brady, et al: Anna Bryant Motter

Florida Legal Services, Inc.

540 West Brevard Street Tallahassee, Florida 32301

For Petitioners Jack L. McLean, Jr. and Blount, et al: Larry K. White

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32303

For Respondents: Judith A. Brechner

and James D. Little

Florida State Board of Education Knott Building

Tallahassee, Florida 32304

FINAL ORDER

The history of this proceeding involves events, filings, pleadings, motions, rulings and discovery too numerous to detail in this order. However, inasmuch as the respondent has challenged the jurisdiction of the Division of Administrative Hearings in this rule challenge proceeding, a brief summary of events is necessary.

On July 21, 1978, the respondent published notice in the Florida Administrative Weekly (FAW) of its intent to adopt Rule No. 6A-1.942 pertaining to the basic skills and functional literacy requirements for graduation from high school. This proposed rule was republished in the July 28, 1978, edition of the FAW in order to correct an error in printing which occurred in the July 21st publication. On August 4, 1978, the petitioners herein filed with the Division of Administrative Hearings their petition seeking an administrative determination of the validity of proposed Rule 6A-1.942, pursuant to the provisions of F.S.120.54. The cases were assigned to the undersigned Hearing Officer by the Director of the Division of Administrative Hearings by order dated August 9, 1978. On August 15 and 16, 1978, the petitioners amended their petitions.

A public hearing on the proposed rule was held by the Governor and Cabinet sitting as the State Board of Education on August 15, 1978. As a result of that hearing, the original proposed rule was changed to reflect a different scoring criteria, to provide a different nomenclature for the two tests in question, to delineate bread options for the district school boards to utilize when providing special assistance to students failing to master the standards tested, to provide for testing subsequent to graduation and to provide for rescoring of the tests administered in October of 1977 in accordance with the criteria set forth in the proposed rule. The written revision of the amended proposed Rule 6A- 1.942 was filed with the undersigned on August 17, 1978. Though two separate economic impact statements had previously been prepared by the respondent in connection with the original proposed rule, an economic impact statement did not accompany the filing of the amended proposed rule on August 17, 1978. The notice of modification of proposed Rule 6A-1.942 was published in the August 25th edition of the F.A.W.

A final hearing date of September 6, 1978, was originally scheduled for these proceedings. On the afternoon of August 31, 1978, only two full working days prior to the date of the scheduled hearing, the respondent filed with the undersigned an economic impact statement in connection with the revised proposed rule. This statement was in greater detail than the previous statements and it broadened the classes of persons who would be most directly affected by the proposed rule. The petitioners moved to strike this amended economic impact statement or, in the alternative, moved for a continuance of the hearing scheduled for September 6th. By Order dated September 1, 1978, the undersigned denied the motion to strike and granted the motion for a continuance. The amended economic impact statement was noticed in the F.A.W. in the September 8, 1978, edition. On September 12, 1978, petitioners filed another amended petition so as to take into account the new economic impact statement. The final hearing in these causes commenced on September 14th and continued on September 15, 18, 21 and 22, 1978.

Citing F.S. Sec. 120.54(4)(c) , respondent contends that the undersigned Hearing Officer lest jurisdiction in this case because the hearing was not held or concluded within the mandatory thirty day period. A consideration of the

dates of the events as set forth above illustrates this contention to be without merit. The substantive amendments to the rule occurring as a result of the public bearing held on August 15, 1978, rendered the original rule challenge petition incomplete and without full meaning Petitioners were granted permission to amend their petition to challenge the rule as amended. The written form of the amended proposed rule was not filed until August 17th, and the petition challenging that rule was filed on August 23, 1978. Notice of the new proposed rule was not published until August 25, 1978. Thus, whether the thirty day period mandated by Sec. 120.54(4)(c) is considered to have commenced on August 17th, August 23rd or August 25th, the hearing was commenced within the thirty day period. Respondent further contends that even if the thirty day period began to run on August 17th, the date of the filing of the amended proposed rule, the Hearing Officer still lost jurisdiction because the hearing was not concluded until September 22, 1978. Section 120.54(4)(c) requires that a hearing shall be conducted within thirty days after assignment of a Hearing Officer by the division director. That section further provides that "within 30 days after conclusion of the hearing," the Hearing Officer shall render a decision. Having used the word "conclusion" in the second thirty day period requirement and not in the first thirty day period requirement, it must be assumed that the Legislature intended that the hearing must only be commenced within thirty days after assignment to a Hearing Officer. Respondent urges that if the first thirty day period does not require a conclusion of the hearing, a hearing could drag on for months, thus holding up the effective adoption of a rule by an agency. While such a result conceivably is possible, it must be assumed that, absent consent by all parties, the Hearing Officer would not allow such a delay to be accomplished. It should also be pointed out, conversely, that if the respondent's position were upheld, an agency could also unduly extend the proceeding so as to effectively prevent a challenge to its proposed rules. In summary, it is concluded that this proceeding was conducted within the time frames mandated by F.S. Sec. 20.54(4)(c).

Parenthetically, it is noted that, if anything, the hearing which commenced on September 14th was premature. If the time period can be said to have commenced on August 25th -- the date notice of the amended proposed rule was published -- the hearing should not have commenced until September 22, 1978.

This would have allowed substantially affected persons 14 days to file a petition with the Division of Administrative Hearings challenging the amended rule, in accordance with Sec. 120.54(4)(b), and another 14 days to give notice of the final administrative hearing, in accordance with Sec. 120.57(1)(b)(2). These dates would be further extended if one were to conclude that the relevant dates commence to run as of the date of the filing of the amended economic impact statement, August 31st, or its publication, September 8, 1978. Whether or not the instant proceeding was scheduled prematurely with regard to the notice requirements of Chapter 120, F.S., it is specifically held that the parties to this proceeding had adequate notice of the amended rule and the amended economic impact statement to prepare for the hearing. The undersigned also takes official notice that no other petition challenging proposed Rule 6A- 1.942 was filed with the Division of Administrative Hearings within fourteen days of either the publication of the amended proposed rule or the amended economic impact statement.

Turning now to the merits of this proceeding, petitioner contends that proposed Rule 6A-1.942 constitutes an invalid exercise of delegated legislative authority. In support of this contention, petitioners urge the following general grounds:

1. Notice deficiencies,

2. invalid retroactive scoring of last year's tests,

3. violation of the one-subject requirement of F.S. Sec. 120.54(8),

4. an invalid delegation of power to the Commissioner of Education,

5. arbitrariness and unreasonableness of the scoring criteria as it relates to the standards tested, and

6. a faulty economic impact statement.

The undersigned has carefully considered each of these contentions in light of the testimony adduced at the five-day hearing, approximately 50 exhibits received into evidence at the hearing and the memoranda submitted by the parties subsequent to the hearing.

The question of the adequacy of the notice provided by the respondent with respect to Rule 6A-1.942 has been discussed above. It is concluded that as to the petitioners herein, any error which occurred with respect to the timeliness or contents of the notice provided by respondent, was harmless error and does not constitute grounds for invalidating the proposed rule. The petitioners, as of the date of the hearing, have had adequate notice and opportunity to contest and raise all issues deemed relevant by them.

The purpose of proposed Rule 6A-1.942 is to implement F.S. Section 232.246, as enacted by Chapter 78-424, Laws of Florida. This statute, in relevant part, provides as follows:

Section 1. Section 232.246, Florida Statutes, is created to read:

232.246 General requirements for high school graduation.

1. Beginning with the 1978-79 school year, each district school board shall establish standards for graduation from its schools which shall include as a minimum:

   1. Mastery of the minimum performance standards in reading, writing, and mathematics for the 11th grade, established pursuant to Sec. 229.565 and 229.57, determined in the manner prescribed by rules of the state beard;

   2. Demonstrated ability to successfully apply basic skills to everyday life situations as measured by a functional literacy examination developed and administered pursuant to rules of the state board; and

   3. Completion of a minimum number of academic credits, and all other applicable requirements prescribed by the district school board pursuant to s.232.245.

* * *

(3) A student who meets all requirements prescribed in subsection (1) shall be awarded a standard diploma in a form prescribed by the state board; provided that

a school board may, in lieu of the standard diploma, award differentiated diplomas to those exceeding the prescribed minimums. A student who completes the minimum number of credits and other requirements prescribed by subsection (1)(c), but is unable to meet the standards of subsection (1)(a) or (b), shall be awarded a certificate of completion in a form prescribed by the state board.

* * *

Section 4. Subsection (3) of section 232.245, Florida Statutes, is hereby repealed.

The proposed rule prescribes the manner by which to determine mastery of standards (Sec. 232.246(1)(a)) and demonstrated ability to successfully apply basic skills to everyday life situations (Sec. 232.246(1)(b)) via scoring criteria to be applied to certain test results. The rule further provides that such scoring criteria will be applied both prospectively and to the basic skills and functional literacy tests administered in the 1977-78 school year.

As to this aspect of the proposed rule, petitioners contend that the retroactive application of the scoring criteria lacks statutory authority, that it interferes with the appellate court's jurisdiction, and that it constitutes a violation of due process of law and equal protection of the law. Without reiterating in detail the petitioners' arguments in support of each of these contentions, the undersigned concludes that they are without merit. The statute, Sec. 232.246, mandates district school boards, beginning with the 1978-

79 school year, to include within their standards for graduation a demonstration of mastery of minimum performance standards and ability to successfully apply basic skills. The proposed rule simply defines mastery and ability and, through the rescoring of existing test results, seeks to apply this definition to students who will graduate this year. Beginning with the current school year, the school districts are mandated by statute to consider whether a student has mastered certain standards and demonstrated ability to apply basic skills prior to awarding a standard diploma. The proposed rule simply provides a method for making this determination via the utilization of data which presently exists; i.e., the answers to tests taken during the previous year. This does not constitute a retroactive imposition of a new rule. It simply is the application of the rule's scoring criteria to presently existing data.

Petitioner's argument with regard to interference with the jurisdiction of the District Court of Appeal further illustrates this point. The District Court of Appeal, First District, presently has under consideration the Order entered in Division of Administrative Hearings Case No. 78-653R, which declared that the scoring criteria previously utilized by respondent was invalid for its failure to have been promulgated in accordance with the Administrative Procedures Act.

It is argued that the Court could uphold said Order and exercise its remedial powers by expunging all student records of the scores resulting from the tests administered during the last school year. Such a remedy would be meaningless, continues the petitioners' argument, if respondent could pass a rule recognizing the October, 1977, test scores. However, petitioners argument fails for the reason that the proposed rule in question does not "recognize" the 1977 test scores. Instead, it adopts a scoring criteria to determine mastery and ability to apply basic skills, and it applies such criteria both to testing results of the future and to test results obtained in 1977. The fact that the District Court of Appeal may conceivably expunge the scores previously obtained would have no effect upon the applicability or intent of the proposed rule. Indeed,

under the rescoring required by subsection (5) of the proposed rule, the scores previously obtained are, in effect, expunged.

Petitioners' arguments regarding a denial of due process and equal protection of the law are unpersuasive. The existing statutes and rules require that eleventh grade students be tested to determine mastery of minimum performance standards and ability to apply basic skills. F.S. Sec. 229.57 and

F.A.C. Rule 6A-1.941. This statewide testing program is for the purpose of "providing information needed for state-level decisions." F.S. Sec. 229.57(1). The legislature has mandated that beginning with the 1978-79 school year, performance on these tests are to be included within the standards for graduation, and it has provided for a differentiated form of certification of graduation from high school based upon the level of performance on these statewide tests. F.S. Sec.232.245, 1977 Florida Statutes; and F.S. Sec. 232.246, Chapter 78-424, Laws of Florida. Thus, petitioners cannot claim lack of notice or denial of equal protection. All students graduating from high school during the 1978-79 school year are subject to the same requirements for a standard diploma. The fact that one student may have three, rather than four, opportunities to pass one of the tests prior to graduation does not constitute a denial of equal protection. Indeed, under the provisions of the proposed rule, a student or graduate may have as many opportunities as he desires to demonstrate adequate performance on the test which will earn him a standard diploma in lieu of a certificate of completion.

Petitioners further urge that the proposed rule violates the one-subject requirement of F.S. Sec. 120.54(8) because it includes secondary, adult and twelfth grade students within its scope and applicability, while F.S. Sec.

229.57 only prescribes testing for the third, fifth, eighth and eleventh grades. This argument ignores the statute which the proposed rule is designed to implement -- Sec. 232.246 (1978). This statute sets forth requirements for high school graduation for all students in the public school system in Florida.

Among these requirements are mastery of certain standards and the ability to apply basic skills to everyday life situations. Such mastery and ability are initially tested in the eleventh grade; however, all students graduating from high school must meet these requirements before they are awarded a standard diploma. Thus, the proposed rule's inclusion of adult and other secondary students within its scope does not violate the single subject requirement of F.S. Sec. 120.54(8).

It is contended by petitioners that subsection (2)(a) of the proposed rule, requiring approval by the Commissioner of the state student assessment test - Part II, constitutes an invalid delegation of legislative authority from the Board of Education to the Commissioner of Education. The Board may delegate its general powers to the Commissioner of Education or to the division directors, unless otherwise provided by law. F.S. Sec. 229.053(1). While the Board of Education is required to approve the minimum student performance standards, (F.S. Sec. 229.565(1)), there is nothing in the statutes which requires the Board to approve each test which is developed and administered to evaluate a student's knowledge of such standards. Thus, it must be concluded that the Board may lawfully delegate to the Commissioner its authority to approve the tests prior to administration.

In support of their contention that proposed Rule 6A-1.942 is arbitrary and unreasonable, petitioners argue that the state's instructional program does not adequately address the adopted minimum performance standards and the items which are tested to measure those standards. Therefore, contend petitioners, the scoring system adopted by the rule does not bear a reasonable relationship to

the legislative intent as expressed in F.S. Sec. 229.55(2)(d), to guarantee to each student instructional programs which meet minimum performance standards. As their sole example, petitioners point to the standards and test items regarding the metric system. They then point to F.S. Sec. 229.841 which requires the Department, by December of 1978, to develop a plan and rules by which the metric system of measurement can be adopted by 1980 in all phases of public education. It is then inferred by petitioners that since the metric system of measurement is not required to be taught until 1980, it is net taught

and therefore should not be tested. The evidence adduced at the hearing negates this inference and illustrates that the metric system is currently receiving attention in classroom instruction. While the prior results of tests administered in 1977 might lend some credence to the allegation that the district instructional programs do not adequately address the minimum standards, this issue should not properly be considered in the present rule challenge proceeding. Rule 6A-1.942 is not the test and Rule 6A-1.942 does not set forth an instructional program for the State. Even if the petitioners were to adequately demonstrate curriculum deficiencies in Florida schools, this fact would not render Rule 6A-1.942 invalid, arbitrary or unreasonable. Such a showing may relate to the inadequacy or invalidity of the test developed pursuant to the proposed rule, but it does not relate to the validity of the rule itself.

Finally, petitioners claim that the proposed rule is invalid because an adequate statement of economic impact is not provided. The undersigned has carefully considered all the oral and documentary evidence relating to this issue in light of the requirements of F.S. Sec. 120.54(2). While the petitioners have demonstrated the availability of certain data which was not specifically included by reference in the three economic impact statements prepared by the respondent, the evidence also illustrates that the respondent made a reasonable attempt to provide an estimate of the rule's economic impact. Section 120.54(2) requires the economic impact statement to include an estimate of the cost to the agency, including the estimated amount of paperwork.

Respondent has listed in its statement actual amounts which have been appropriated by the legislature to implement the tests involved ($1,352,816.00), actual amounts appropriated to provide the compensatory or remedial instruction to students who need additional instruction ($26,500,000.00), and the estimated cost of rescoring the 1977 tests ($14,000.00). In addition to these amounts, respondent has listed other funds which are available to the districts to assist students in mastering the required minimum performance standards. This constitutes a reasonable estimate of what the agency expects to spend in implementing the proposed rule. The issue of whether or not the dollar figures listed in the statement are extravagant or insufficient from a philosophical point of view is immaterial in ruling upon the adequacy of the economic impact statement. The wisdom of the costs involved is not at issue, nor is the sufficiency of funds provided by the legislature at issue. As correctly stated by the respondent in its memorandum of law:

The legislature assumed the burden of apprising itself of the economic impact when it passed the law requiring knowledge

of basic skills and the application of those skills. . . It did not tell the State

Board of Education to set a scoring criteria based on economic impact but to set one which would differentiate between those who know the basic skills and those who don't. The Legislature also acted by appropriating 26.5

million dollars for remediation over and above other funds available for this purpose. Whether or not that is an appropriate extra amount for remediation is not for determination in this proceeding."

The issue is whether the agency has provided a reasonable estimate of the rule's economic impact. The respondent has listed exact dollar amounts expected to be expended to implement the rule, as well as other funds available if the appropriated amounts prove to be insufficient. Such constitutes a reasonable estimate of the cost to the agency, and is sufficient to put the public on notice of the approximate costs involved. The rule does not create the statewide testing system nor does it create the certificate of completion as opposed to the standard diploma. These programs were created by the legislature and the proposed rule simply implements that legislative directive.

The undersigned has considered the statement provided by respondent in light of the requirements of F.S. Sec.120.54(2)(a) to estimate the cost or benefit to persons directly affected and to estimate the impact on competition and the open market for employment. It is concluded that the statement provides an adequate estimation of these factors. The testimony at the hearing illustrates that it is impossible, at least at this point in time, to provide more exact and certain estimates of actual costs involved in implementing the proposed rule. The Department does not presently have available to it exact data concerning the number of students who will require remediation or special instruction or the form of remediation or instruction which will be required or utilized. It does not have present knowledge of the number of students who will receive a certificate of completion as opposed to a standard diploma. Absent such knowledge, it cannot set forth either an accurate, itemized cost or economic benefit to all persons directly affected by the rule or an accurate statement of the impact on competition and the open market for employment. Nor does Sec.120.54(2) require that such an accurate statement be provided. The statute only requires a reasonable estimation. The undersigned finds that such a reasonable estimation was provided by respondent, and that a detailed statement of the data and method used in making such estimates was provided.

Respondent has contended that the economic impact statement provided by an agency for a proposed rule cannot properly be considered in a F.S. Sec.120.54(4) proceeding. The undersigned specifically and emphatically rejects this contention. The procedural and substantive rulemaking requirements of Chapter

120 specifically mandate that an economic impact statement be prepared and be made available to the public with proper notice prior to the adoption of any rule. Such a requirement would be meaningless and unenforceable if a litigant could not challenge the adequacy of such a statement prior, as well as subsequent, to the adoption of agency rules. The most recent amendments to Chapter 120 do not take away the rights of a substantially affected person to raise the adequacy of the agency's economic impact statement in proposed rule challenges.

Respondent asserts that the petitioners have failed to demonstrate that they are substantially affected by the proposed rule. Without further extending this already lengthy Order with a long discourse on the law relating to standing, the undersigned finds and so concludes that petitioners John G. Brady, Janice Natthes and Quenton Blount are persons substantially affected by the proposed rule. The petitioners moved to strike the name of Carol Galvin from the petition in Case No. 78-1363RP, and said motion was orally granted at the hearing. As students in the public school system who have either previously

taken the 1977 assessment tests or are subject to the requirements and consequences of the statewide testing program prior to graduation, band who will have the scores and or results included within their high school records, petitioners Brady, Matthews and Blount are substantially affected by the proposed rule.

Other contentions raised by both petitioners and respondent in the pleadings and in their legal memoranda have been fully considered and are found to be without merit.

Whereupon, it is ORDERED THAT:

1. Petitioners Brady, Matthews and Blount are persons who are substantially affected by proposed Rule 6A-1.942;

   
   

2. Proposed Rule 6A-1.942, as amended, does not constitute an invalid exercise of delegated legislative authority; and

   
   

3. The statement of economic impact provided by respondent is adequate and complies with the requirements of the Administrative Procedures Act.

Done and ordered this 23rd day of October, 1978, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ralph Armstead

and Anna Bryant Motter Florida Legal Services, Inc.

540 West Brevard Street Tallahassee, Florida 32301

Larry K. White and Jack L. McLean, Jr.

Legal Services of North Florida, Inc.

822 North Monroe Street Tallahassee, Florida 32303

Judith A. Brechner and James D. Little

State Board of Education

124 Miles Johnson Building Tallahassee, Florida 32304

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32304

Carroll Webb Executive Director

Administrative Procedures Committee Room 120 - Holland Building Tallahassee, Florida 32304

Docket for Case No: 78-001362RX

Orders for Case No: 78-001362RX