vs. ) CASE NO. 79-117RX
Respondent. )
Pursuant to notice, a final hearing was conducted in the above case on March 5, 1979, in Tallahassee, Florida. The following appearances were entered: Patricia A. Renovitch, Tallahassee, Florida, for the Petitioner, Florida Education Association/United AFT-AFL-CIO; and Gene T. Sellers, Tallahassee, Florida, for the Respondent, Florida Department of Education.
On January 15, 1979, the Petitioner filed a "Petition for Administrative Determination" with the Division of Administrative Hearings. Petitioner is seeking a determination under Section 120.56, Florida Statutes, that the Respondent's Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code constitute an invalid exercise of delegated legislative authority. On January 17, the Director of the Division of Administrative Hearings entered an Order assigning the matter to the undersigned Hearing Officer. On January 19, 1979 a Notice of Hearing was issued, scheduling the final hearing to be conducted on February 14, 1979. Compelling circumstances, and a stipulation by the parties resulted in a continuance, and the final hearing was conducted as set out above in accordance with an Amended Notice of Hearing issued on February 15, 1979.
Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates.
The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to
choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows:
When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall
review the transcript of testimony and the report.
The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE
A HEARING OFFICER OF THE DIVISION
OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL
In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida
Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings.
In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education.
DATE RESPONDENT
The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule.
The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year.
Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC.
During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify
the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this proceeding, and over the subject matter. Section 120.56, Florida Statutes.
In addition to arguing in support of the substantive validity of its rules, the Respondent asserts that the Petitioner is without standing to raise the instant challenge. The statutory provision governing standing in this proceeding is Section 120.56(1) Florida Statutes. It provides:
Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The Petitioner is clearly a "person" within the meaning of the Act. Sections 1.01(3), 120.52(11), Florida Statutes. The Respondent asserts that Petitioner is not substantially affected by the rules. This contention is grounded primarily upon the decision of the Florida First District Court of Appeals in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (1978). The court in Jerry was confronted with a rule challenge proceeding initiated by an inmate in the state prison system. The inmate had been charged with violation of the rules of the Department of Offender Rehabilitation, and was subjected to the disciplinary proceeding specified in the Department's rules.
He was found guilty of the violations and was punished. He later initiated an attack upon the validity of the substantive and procedural rules. The court stated: (at pp. 1235-1236)
Jerry. . .has failed to show injury which is accompanied by any continuing present adverse effects. He has failed to demonstrate, either at the time his petition for administrative relief was filed, or at the time of the hearing, that he was then serving disciplinary confinement or that his existing prison sentence had been subjected to loss of gain time. . .Were we confronted with a situation in which loss of gain time had in fact occurred, there would be no question but that injury in fact resulted and that Jerry had appropriate standing to challenge the rule.
Here there is nothing in the record so demonstrating. Finally we note that Jerry has not been made a party by agency rule as in Gadsden State Bank v. Lewis [348 So.2d 343 (1
DCA Fla. 1977)].
As in O'Shea [O'Shea v. Littleton, 414 U.S.
488 (1974)], Jerry's prospects of future injury rest on the likelihood that he will
again be subjected to disciplinary confinement because of possible future infractions of [the Department of Offender Rehabilitation's rules]. Whether this will occur, however, is a matter of speculation and conjecture and we will not presume that Jerry, having once committing an assault while in custody, will do so again.
To so presume would result only in illusory speculation which is hardly supportive of issues of "sufficient immediacy and reality" necessary to confer standing.
The sort of speculation that would have been required to confer standing upon Jerry is not necessary with respect to the Petitioner in this case. The Petitioner's members are required to be certified under the provisions of Section 231.14 Florida Statutes, in order to serve in instructional capacities in the public schools. The Petitioner represents teachers in approximately half of the local school districts in Florida, and has approximately 30,000 members in the state. The Respondent initiated approximately 27 revocation or suspension proceedings during 1977, and 29 such proceedings in 1978. The Petitioner provides legal representation to its members who are charged in such proceedings. It is not an absolute certainty that any of the Petitioner's members will be subjected to a teaching certificate suspension or revocation proceeding, or that the Petitioner will be called upon to provide legal counsel in such proceedings. The prospects, however, are substantial. Petitioner is a person substantially affected by the Respondent's rules, and has standing to seek a determination as to their validity.
The Respondent clearly has the authority to issue teaching certificates, and, under appropriate circumstances, to take action to suspend or revoke teaching certificates. Section 231.28, Florida Statutes, provides:
The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed three years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed ten years, with reinstatement subject to provisions of subsection (4); or to revoke permanently the teaching certificate of any person. . .
While the Respondent has authority to adopt rules governing procedures to be followed in suspension or revocation proceedings, the rules must be consistent with the provisions of the Administrative Procedure Act. Section 120.72(1), Florida Statutes. Suspension or revocation proceedings are clearly proceedings in which the substantial interests of a party are being determined by an agency. The opening paragraph of Section 120.57 provides:
The provisions of this section shall apply in all proceedings in which the substantial interests of a party are determined by an agency. Unless waived by all parties,
subsection (1) shall apply whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, subsection (2) shall apply in all other cases.
Subsection 120.57(1) provides that a Hearing Officer assigned by the Division of Administrative Hearings shall conduct all hearings under the subsection with certain specified exceptions. Teaching certificate suspension or revocation proceedings are not among the exceptions, and hearings before the Professional Practices Council are not among the exceptions. The Respondent contends that since its rules provide an option that a teacher may accept or reject to have the hearing conducted by the PPC, the procedure does not run afoul of Section
120.57. The Respondent notes that Section 120.57(1) applies in all cases in which there is a disputed issue of fact, "unless waived by all parties". The Respondent's reliance upon that phrase is misplaced. The phrase merely allows the parties to agree to have a proceeding conducted in accordance with the provisions of Section 120.57(2) even though there are disputed issues of fact. The Respondent's practice upon waiver is not to conduct a Section 120.57(2) proceeding, but rather a Section 120.57(1) proceeding before someone other than a Hearing Officer of the Division of Administrative Hearings. The waiver forms submitted by the Respondent to teachers do not provide that the proceeding will be conducted under the provisions of Section 120.57(2). Even assuming arguendo that the waiver form utilized could be considered to constitute an intelligent, voluntary waiver on the part of someone executing it, use of such a form is contrary to the legislative mandate set out in the Administrative Procedure Act.
If the private interests of parties were all that is at stake in a suspension or revocation proceeding, a departure from the statutory framework could perhaps be tolerated. However, the public interest also is at stake. The public has an interest bin assuring that teaching certificates will not be suspended or revoked for improper reasons, such as the unpopularity of views held by the teacher; and likewise in assuring that teachers and their peers do not together render suspensions or revocations unlikely. The legislature has adopted a framework to protect not only the interests of the litigants, but also the interests of the public. The Respondent has offered several policy arguments in support of its rules. It is not, however, the Respondent's place to promulgate rules based upon its subjective assessment of whether the interests of the public can best be served by hearings conducted by educational peers. That is the legislature's function and the legislature has mandated a different procedure.
The PPC is not the agency head of the Respondent (Section 20.15(1), Florida Statutes), and is not otherwise statutorily empowered to conduct hearings in teaching certificate suspension or revocation proceedings. Section 231.57, Florida Statutes, establishes the PPC. Among its functions are to assist in the preparation and development of codes of ethics and professional performance for teachers, and to generally serve in an advisory capacity to the Department of Education. Nowhere in the statutes is the PPC authorized to perform such roles as have been delegated to it by the Respondent in this case. Administrative agencies are creatures of statute. They have only such powers as statutes confer. Seitz v. Duval County School Board, 366 So.2d 119 (1 DCA Fla. 1979); Swebilius v. Florida Construction Industry Licensing Board, 365 So.2d 1069 (1 DCA Fla. 1979); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (1 DCA Fla. 1978). The Respondent's rules in this instance have, in effect, empowered the PPC to perform functions beyond its grant of authority. To expend the public funds for such a statutorily unauthorized purpose is improper.
Rule 6A-4.37(2) constitutes an invalid exercise of delegated legislative authority. Rules 6B-2.01 through 6B-2.16 as they pertain to proceedings to suspend or revoke teaching certificates constitute invalid exercises of delegated legislative authority. The instant rule challenge proceeding focused upon the designation of a PPC panel to conduct hearings in cases involving the suspension or revocation of teaching certificates. The provisions of Rules 6A-4.37 and 6B-2.01 through 6B-2.17,which do not pertain to such proceedings, were not the subject of this rule challenge.
The Florida Department of Education Rules 6A-4.37(2) and 6B-2.01 through 6B-2.16, as they pertain to teaching certificate suspension or revocation proceedings, are hereby declared to be invalid exercises of delegated legislative authority.
DONE and ORDERED this 4 day of April, 1979, in Tallahassee Florida.
G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Patricia A. Renovitch, Esquire General Counsel
Elizabeth J. duFresne, Esquire Suite 1782, One Biscayne Towers Two South Biscayne Boulevard Miami, Florida 33131
Gene T. Sellers, Esquire State Board of Education Knott Building
Mr. Carroll Webb Executive Director
Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304
Ms. Liz Cloud Department of State
