STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE CHARLES MCCULLOUGH, )

)

Petitioner, )

)

vs. ) CASE NO. 80-265RX

)

DUVAL COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER

The Petitioner, Willie Charles McCullough, filed a Petition pursuant to Section 120.56, Florida Statutes, challenging the validity of various provisions of the Duval County School Board Policy Manual, and the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board, asserting that the provisions were rules which were not property adopted by the Respondent, Duval County School Board. The Director of the Division of Administrative Hearings concluded that the Petition complied with the requirements of Section 120.56, and the matter was assigned to the undersigned for the purpose of further proceedings. The final hearing was originally scheduled to be conducted on March 14, 1980, but upon a Joint Motion for Continuance filed by the parties, was rescheduled and conducted on April 11, 1980.

The School Board filed a Motion to Dismiss the Petition for lack of jurisdiction, and arguments on the Motion were heard at the final hearing. The Motion was denied on the record at the final hearing, and will be further treated in the conclusions of law set out below.

The Petitioner contends that Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board constitute invalid exercises of delegated legislative authority because the provisions are rules which were not properly promulgated. The School Board contends that the provisions of the Policy Manual were properly prior to the effective date of the present Florida Administrative Procedure Act, under then existing statutory requirements; and that the provisions of the Operational Manual are not rules because they constitute internal management memoranda and are excepted from the definition of "rule" under the provisions of Section 120.52(14)(a), Florida Statutes.

FINDINGS OF FACT

1. On February 15, 1980, the Petitioner held a current, valid Florida Teaching Certificate, was employed by the Duval School Board, and held tenure under the Duval County Teacher Tenure Act. The Petitioner was charged by the School Board with violating the provisions of Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and policies set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board. By Order entered March 17, 1980, the Petitioner

   was found guilty of all of the charges, and was discharged as a teacher in the school system. [Petitioner's Exhibits 2 and 4]

   
   

2. Section DKHA of the Policy Manual establishes procedures for collecting and depositing money that is taken in connection with school activities.

   Section DKHB establishes procedures for disbursement of funds by classes or clubs at the schools. Section JHC sets procedures for charging admission to entertainment functions sponsored by schools or allied organizations. The polices set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual set more specific guidelines and procedures to be followed in taking and collecting money in connection with school activities. [Petitioner's Exhibit 1]

   
   

3. The Duval County School Board Policy Manual, including those sections at issue in this proceeding, were adopted by the School Board after a public hearing was conducted on December 16, 1974. Notice of a public hearing was published in the legal notice section of the Florida Times-Union newspaper in its issues of December 6, 7 and 8, 1974. The manual was not filed with the Department of State, and was not published in either the Florida Administrative Weekly, or the Florida Administrative Code. No citations of authority for the various policies are set out in the manual. [Petitioner's Exhibit 3, testimony of Larry J. Paulk]

   
   

4. The Operational Manual for Internal Accounts Activity Fund, including the pages thereof at issue in this proceeding, were adopted by the School Board at a meeting on June 1, 1974. No notice was published, no public hearing was conducted, and no effort was made to promulgate the manual as a rule. The School Board construed the policies as guidelines which implemented rules, rather than as rules. [Testimony of Larry J. Paulk]

   
   

5. Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund constitute "rules" as defined in Section 120.52, Florida Statutes. [Petitioner's Exhibit 2]

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.56, Florida Statutes. The Respondent filed a Motion to Dismiss, asserting that the Division lacks jurisdiction over the matter. Arguments on the Motion were heard at the final hearing, and the Motion was that the Petitioner had an opportunity to raise issues respecting the validity of the rules during the course of the administrative proceeding conducted by the School Board which concluded with the termination of his employment. The School Board contended that the Petitioner actually did raise the validly of the rules during the course of the proceeding. While the transcript of the hearing before the School Board was neither offered into evidence nor received, portions of it were read into the record at the final hearing conducted in this matter. It plainly appears that the Petitioner, through counsel, asserted the invalidity of the rules during the proceeding, but that he specifically reserved his right to raise issues respecting the validity of the provisions in a proceeding before the Division of Administrative Hearings. The School Board cites Department of Health and Administrative Services v. Barr, 359 So.2d 503 (1st DCA Fla. 1978), in support of its Motion. In that case, the agency had issued a declaratory statement in response to a petition. The petitioner thereafter filed a challenge under Section 120.56, Florida Statutes, to the declaratory statement, asserting that it was a rule not properly promulgated under the provisions of Section 120.54. The Court

   dismissed the rule challenge proceeding on the ground that Chapter 120 does not permit Hearing Officers of the Division to entertain collateral review power over final agency action taken after regular proceedings under other provisions of the Administrative Procedure Act. The instant proceeding is not analogous. When an agency seeks to take disciplinary action against a party based upon its rules, the party becomes substantially affected by the rules, and has a right under Section 120.56 to challenge them in a proceeding before the Division of Administrative Hearings. While the validity of the rules might also be raised during the disciplinary proceedings [see, e.g., McDonald v. Department of Banking and Finance, 346 So.2d 569 (1st DCA 1977)], the remedy provided under Section 120.56 nonetheless remains. In Department of Health and Rehabilitative Services v. Professional Firefighters of Florida, Inc., 366 So.2d 1276 (1st DCA Fla. 1979), the Court held that the fact that a party participated in a rule adoption proceeding, and could have raised issues with respect to the validity of the proposed rules during the course of that proceeding, did not later prevent the party from filing a rule challenge under Section 120.56. The reasoning of the decision applies to the instant matter.

   
   

7. Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board constitute rules within the meaning of Section 120.52(14), Florida Statutes. Prior to the hearing, the Petitioner filed a Request for Admissions, which contained the following paragraph:

   
   

   1. The provisions of the Duval County School Board Policy Manual and Operational Manual for Internal Accounts Activity Fund,

      as set forth in paragraph 2 [the provisions at issue in this proceeding] constitute "Rules" as defined in Section 120.52, Florida Statutes.

      
      

      The School Board did not respond to the Request for Admissions, and at the hearing agreed that the effect of the failure to respond was that the matters set forth in the request were admitted. Nonetheless, during the course of the hearing, the School Board offered evidence, and contended that the provisions of the Operational manual for Internal Accounts Activity Fund at issue in the proceeding are not rules because they are "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" and are thus excepted from the definition of "rule" in the Administrative Procedure Act. Section 120.52(14)(a), Florida Statutes. The School Board did not assert at the hearing that the admission of Paragraph 4 of the Request for Admissions should be withdrawn or amended, and no motion to that effect has been filed. In its posthearing memorandum, the School Board has asserted that the admission should be withdrawn or amended. Section 120.58(b), Florida Statutes, provides that discovery is available in proceedings under the Administrative Procedure Act "by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure." Rule 1.370, Florida Rules of Civil Procedure, provides in pertinent part:

      
      

      1. Request for Admissions. A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of Rule 1.280(b) set forth in the request that relate to statements or

         opinions or opinions of fact or the application of law to fact . . . [T]he matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . .

      2. Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission . . . [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved

         by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

         
         

         The School Board has not shown that the merits of this action would be subserved by withdrawal of the admission. Furthermore, withdrawal of the admission, after the final hearing has been conducted, would have the effect of allowing the Petitioner no opportunity to rebut evidence contrary to the admission. The admission will therefore stand, and will be taken as conclusively establishing that the various provisions are rules as a matter of fact, and that applying the provisions of law to the facts, the provisions are rules as a matter of law.

         
         

8. The present Florida Administrative Procedure Act became effective on January 1, 1975. Chapter 75-310, Section 6, Laws of Florida. Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual were adopted prior to the effective date of the present Act. Clearly, if adoption of the sections was measured against the procedural requirements of the present Act, the rules would be invalid because they were not properly promulgated. Department of Administration v. Harvey, 356 So.2d 323 (1st DCA 1978); Department of Administration v. Stevens, 344 So.2d 290 (1st DCA 1977). Since they were adopted prior to the present Act, however, the sections must be measured against different criteria. Section 120.72(4)(a) Florida Statutes, provides:

   
   

   All prior rules not adopted following a public hearing as provided by statute shall be void and unenforceable after October 1, 1975, and shall be stricken from the files of the Department of State and from the files of the adopting agency.

   
   

   Prior to the present Administrative Procedure Act, the School Board was required to adopt its rules in accordance with the provisions of Part I, Chapter 120, Florida Statutes (1973). Section 120.021(1), Florida Statutes (1973), provided:

   
   

   Agency means any state board, commission, department, or officer authorized by law to make rules, except the legislative and judicial departments of government, the military and the Governor.

   
   

   The School Board contends that it was not governed by the provisions of Part I of the former Administrative Procedure Act, and no cases have been found

   directly holding that school boards were bound by the rule making requirements set out in Part I. In several decisions, however, it was held that school boards were governed by the provisions of Part II of the former Act. Canney v. Board of Public Instruction of Alachua County, 220 So.2d 803 (1st DCA Fla.

   1969); Board of Public Instruction of Broward County v. Allen, 219 So.2d 430 (Fla. 1969). The definition of "agency" for the purposes of Part II of the Act was functionally equivalent to the definition set out at Section 120.021(1) to reach the conclusion that school boards were covered by the provisions of the former Act. State ex rel. Allen v. Board of Public Instruction of Broward County, 214 So.2d 7 (4th DCA Fla. 1968). Certiorari was discharged by the Supreme Court. The conclusion is therefore inescapable that the School Board was governed by the procedural requirements of Part I of the former Act. As they relate to this proceeding, those requirements were set out at Section 120.041(4) as follows:

   
   

   Notice of hearing on the adoption of the proposed rule shall be given by the agency proposing to adopt the rule between ten to thirty days prior to the hearing date and shall be given in the following manner:

   
   

   (a) By publication in four or more newspapers of general circulation in this state. . . .

   
   

   The School Board conducted a public hearing with respect to the sections of its Policy Manual after publishing notice three times in a single newspaper. Only one of the notices was published between ten to thirty days prior the hearing date. It therefore appears that the public hearing was not conducted in accordance with the provisions of Part I of the former Act, and under Section 120.72(4) of the present Act, the rules became unenforceable after October 1, 1975.

   
   

9. The provisions of the Operational Manual for Internal Accounts Activity Fund at issue in this proceeding were not adopted after a public hearing, and by operation of Section 120.72(4) became void and unenforceable after October 1, 1975.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby

ORDERED:

Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board became void and unenforceable by operation of law on October 1, 1975, and therefore constitute invalid exercises of delegated legislative authority.

ENTERED this 8th day of May 1980 in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May 1980.

COPIES FURNISHED:

Thomas E. Crowder, Esquire Assistant Counsel

1300 City Hall

Jacksonville, Florida 32202

William F. Kachergus, Esquire Maness and Kachergus

603 Florida Theatre Building Jacksonville, Florida 32202

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 80-000265RX

Orders for Case No: 80-000265RX