STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HARID CONSERVATORY OF MUSIC, INC.,
Petitioner,
vs.
DEPARTMENT OF EDUCATION,
Respondent.
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) Case No. 11-2225RU
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SUMMARY FINAL ORDER
Pursuant to notice, an oral argument was held in this case on June 2, 2011, in Tallahassee, Florida, before Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Martha Harrell Chumbler, Esquire
Carlton Fields, P.A.
215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190
For Respondent: Mari M. Presley, Esquire
Department of Education
325 West Gaines Street Turlington Building, Suite 1232 Tallahassee, Florida 32399-0400
STATEMENT OF THE ISSUES
The issues is this case are: (1) whether a letter written by an attorney for Respondent, Department of Education
(Respondent or Department), is an unpromulgated rule;
whether Petitioner, Harid Conservatory of Music, Inc. (Petitioner or Harid), is substantially affected by the letter it seeks to challenge as an unpromulgated rule; and (3) whether, if Petitioner prevails, it is entitled to attorney's fees and costs pursuant to section 120.595(4), Florida Statutes (2010).1/
PRELIMINARY STATEMENT
On May 2, 2011, Harid filed a Petition for Administrative Determination that a Statement Violates § 120.54(1)(a). The Petition alleged that a letter dated March 7, 2011 (the "Letter"), from an assistant general counsel for the Department to an attorney for the School Board of the Palm Beach County School District (District), is an agency statement that meets the definition of a "rule" in section 120.52(16), but was not promulgated, in violation of section 120.54(1)(a).
By Order dated May 4, 2011, the final evidentiary hearing was scheduled for June 2, 2011. On May 5, 2011, the parties filed a joint motion for accelerated discovery, which was granted on May 6, 2011.
On May 19, 2011, the Department filed a motion to dismiss, or, alternatively, for summary final order, with three exhibits. On May 24, 2011, Harid filed a response to the Department's motion, combined with a cross-motion for summary final order, with four exhibits. That same day, the parties jointly
requested that the June 2, 2011, evidentiary hearing be canceled and that the time reserved be used instead for oral argument on the cross-motions. The parties' request was granted. To complete the filings for consideration at the oral argument, on June 1, 2011, the Department filed a response to Harid's cross- motion for summary final order, with four exhibits.
Oral argument was held on June 2, 2011, as scheduled. During the course of the hearing, the parties relied on the exhibits attached to their motions. Upon inquiry by the undersigned, the parties agreed that all documents attached to their motions and responses--including electronic mail (emails), District rules, and other material--were not disputed and could be relied on by the undersigned as evidence from which findings of fact could be made.2/
After oral argument, the parties were offered the opportunity to file proposed summary final orders, and they did so on June 13, 2011. These submittals have been considered in the preparation of this Summary Final Order.
FINDINGS OF FACT
Harid is a not-for-profit corporation that provides training for ballet dancers at its campus in Palm Beach County, Florida. Harid recruits ballet dancers not only from Florida, but, also, from other states and other countries. Ballet
students are admitted to Harid based primarily on their artistic talent, and once admitted, attend tuition-free.
Harid is highly selective, with an average enrollment of only 40 students. Harid students reside at Harid for all but approximately two and one-half months each year.
Harid receives funding from benefactors and also engages in fundraising to carry out its training program. Harid generates more than enough from these funding sources to cover the costs of ballet training. Therefore, Harid is able to make additional financial assistance available to those of its students whose parents otherwise would be unable to afford the additional cost of room and board.
Harid students are all high-school aged. As a result, while these students are enrolled at Harid, in addition to their intensive ballet training, arrangements must also be made for the dancers to receive a high school education. Harid students are required to attend high school, meet and maintain high academic standards, and remain on track for high school graduation.
While Harid enrollees are in residence at Harid, they are under the supervision of a number of different Harid staff and faculty, including Harid's director, registrar, residence hall managers and supervisors, and other Harid staff and faculty. The residence hall supervisors reside in Harid's
residence hall. Harid staff and faculty oversee all aspects of the dancers' lives, both on campus and off, during the time that Harid dancers are in training. The evidence did not establish that a specific staff person is assigned the responsibility for individual supervision of each individual Harid dancer; rather, the description given by Harid's director was that of multiple staff members in different roles, who cumulatively serve as the dancers' supervisors.
The oversight role collectively played by numerous individual staff members at Harid was not shown, nor alleged to actually displace the parents of these students from their parental roles while their children are at Harid. In addition, presumably, during the two and one-half months that the Harid dancers are not in residence at Harid, they return to their homes and remain under the supervision of their parents. In other words, Harid staff and faculty oversee the students' lives while they are in residence at Harid to the extent necessitated by the remoteness of the students' parents.
Since 1992, Harid students have attended Spanish River Community High School (Spanish River), a public school within the District, in order to earn credits in academic core subjects. The oversight role Harid staff members play with regard to Harid students includes acting as their "parents" for purposes of providing consents and executing other forms needed
by Spanish River and the District, serving as contacts for notifications regarding the students, and communicating with Spanish River and the District on matters relating to Harid students. The record does not reflect whether one individual, or multiple individuals, at Harid perform these functions of signing consents, executing forms, serving as the contact for notifications, and communicating with the school and the District regarding Harid students.
No evidence was presented regarding the history of how exactly Harid students came to be allowed to attend Spanish River; what, if any, documentation has been provided to Spanish River to support requests to enroll Harid students in the high school; or whether that process has changed over the years. However, the record shows that in July 2007, the District promulgated new policies on student residence enrollment requirements that are now in effect for the District's public schools.
The District has had, for many years, a promulgated policy, Policy 5.01, which provides general criteria for student assignment to District schools. According to the history notes for this rule, Policy 5.01 was originally adopted in 1972 and was amended numerous times since then, as recently as
December 12, 2008. The prior versions of the general criteria rule are not in the record. In its current form, which has been
in effect since December 2008, Policy 5.01(1)(b) includes the following as general criteria for student assignment:
Students shall be assigned to schools based on residence of the student/parent/guardian as stated below . . .
The residence of a minor student shall be the domicile of his/her parent, as defined in Fla. Stat. § 1000.21(5) (which includes a legal guardian). . . The residence of a student who is married or above the age of majority shall be his/her domicile.
The Superintendent/Designee may, in unique and hardship cases, determine residence based upon approval of the use of a notarized statement executed by the parent or legal guardian granting a general power of attorney and general custody of a student to a resident of Palm Beach County consistent with Policy 5.011.[3/] (Emphasis added).
Policy 5.011, entitled, "Student Residence Enrollment Requirements," was more recently promulgated, first taking effect on July 11, 2007, according to the history note. This policy reiterates the general rule in Policy 5.01 that students must attend the school in the attendance zone where their parents or legal guardians are domiciled, or for students who are married or not minors, where the students are domiciled. The first five sections of Policy 5.011 specify in great detail the documentation that is required to prove domicile, the penalties for submission of false information, and the special
provisions that apply to enrollment of homeless students and students in foster care.
Policy 5.011-6 applies to "Persons Acting as Parent," and provides in pertinent part:
For purposes of establishing student residency, a "parent" is defined as either or both natural or adoptive parent(s) of the student, the student's legal guardian, a person in a parental relationship to the student, or a person exercising supervisory authority over the student in place of the parent, pursuant to Fla. Stat. A. § 1000.21(5).
The student must actually reside with the parent or Person Acting as Parent as the student's primary residence. . . .
A Person Acting as Parent must complete form PBSD 1543, which is incorporated herein by reference and is available on the District's web site at www.palmbeach. k12.fl.us/Records/FormSearch.asp.
Form PBSD 1543, incorporated by reference in the District's rule, is an Affidavit of Person Acting as Parent. The stated purpose of the affidavit "is to verify the status of a person acting as parent." The instructions on the form require that the form be completed and submitted to the school where the student is seeking to enroll. In pertinent part, the affidavit form provides:
I, (name of guardian/person acting as parent) , am acting as parent for the following named child or children (print name of child or children):
I, (person acting as parent/guardian) am currently residing with the above-named child(ren) at the residential address address below in Palm Beach County, and this is the child(ren)'s primary residence . . .
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Pursuant to Florida Statutes § 1000.21, I qualify as a person acting as "Parent" under the following circumstances (check one only)
Guardian of a student (legal guardianship papers are required)
Person in a parental relationship (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.)
Person exercising supervisory authority over a student in place of a parent (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) (Emphasis added).
As with the penalty warnings for falsification set forth in Policy 5.011, the form Affidavit of Person Acting as Parent warns of the statutory penalties for making false declarations. In addition, by signing the affidavit, a person acting as parent acknowledges the following: "I understand that falsification of this information may result in the withdrawal of my child(ren) from this school and that falsifying my
residence when enrolling my child(ren), may be referred to law enforcement for prosecution."
The controversy in this proceeding arose according to Robert Glassman, a senior counsel in the District's Office of Chief Counsel, "when the administration at [Boca Raton High School] requested authorization to register a number of students at Boca Raton H.S., who are enrolled at the Bucky Dent Baseball Academy" (Bucky Dent Baseball) in Boca Raton, Florida.
Mr. Glassman elaborated on the Bucky Dent Baseball
request:
On February 24, 2011, our office received a request for information on the procedure to enroll students at [Boca Raton High School] who were participating in the Bucky Dent Baseball Academy in Boca Raton. In support of the School's position, reference was made to a similar program which was operated by the Harid conservatory in conjunction with Spanish River H.S. The program at Spanish River has been in existence for quite some time. This is the first time a request has been made for students associated with the Bucky Dent baseball academy.
Both schools were relying on provisions of School Board Policy 5.011, which does permit schools to accept for enrollment those children from other persons acting as parents under limited circumstances. (see Sch. Bd. Policy 5.011-6)
. . . [It was] agreed that we should contact the State DOE to determine their position on the issue. As a result I did contact the General Counsel's Office for FDOE, and spoke with [assistant general counsel] Mari M.
Presley, on March 2, 2011. (Emphasis added).
Ms. Presley confirmed that she received Mr. Glassman's telephone call on March 2, 2011. That same day, Ms. Presley repeated the question posed to her by Mr. Glassman in the following email to two colleagues at the Department:
I have an FTE residency issue that I was hoping you could help me resolve. In Palm Beach county, there are two private "academies" (one for baseball and one for dance) that recruits [sic] from anywhere, including out of state. They have some students who live on campus, and some who live off campus. The students who do not live in Florida have their parents sign a form that purports to give someone (apparently a staff member at the academy) "guardianship for purposes of education." Once that is signed, the "guardian" enrolls the student in public school in Palm Beach County. (As an aside, the tuition is
$20,000 to $30,000).
Palm Beach County does not believe this is right, but they want to know from us whether they can deny enrollment under these circumstances. They note that their policies adopt the definition of parent that is found in [section] 1000.21(5) [Florida Statutes], "either or both parents of a student, any guardian of a student, any person in a parental relationship to a student, or any person exercising supervisory authority over a student in place of the parent."
I'm inclined to say that a parent cannot create residency through what is essentially a sham "guardianship" form. What are your thoughts? Do we have any history with this topic? Do you know of any [Technical Assistance Papers] or guidance we have
issued in the past on this? Do you know what the auditors would advise on this? (Emphasis added).
Ms. Presley prepared a written response to
Mr. Glassman's query in the Letter challenged by Harid in this proceeding. In that letter, Ms. Presley followed her inclination as described to her colleagues five days earlier and drew support from an "analogous" situation. The text of the Letter is set forth in full below:
Re: Florida Residency for Public School Enrollment
Dear Mr. Glassman:
You have brought to our attention an issue relating to whether certain students are residents of the State of Florida for purposes of enrolling in Florida public schools. You indicated that one or more private academies recruit students from out of state to attend their academies at which they receive instruction in an extracurricular field of endeavor (e.g., baseball or dance). The parents of the out-of-state students do not live in
Florida, but the students themselves live in Florida during the period of enrollment in the academy, either on or off of the academy's campus. In an apparent effort to establish Florida residency, the parents of these students sign a document purporting to give someone associated with the private academy "guardianship over the education" of the student. Utilizing this "guardianship," the academy then attempts to enroll the student in Florida public schools, claiming the student is a Florida resident.
This letter is to advise you that the Florida Department of Education would not
consider such a student a resident of the state for purposes of enrollment in Florida public schools. As I am sure you are aware, the residence of a minor ordinarily follows the residence of his or her parents. In the event that a child has been entrusted to a guardian who sits in loco parentis, the residence of the child may follow the residence of the guardian. However, in the circumstances described above, the parents remain the true guardians of the student.
Allowing resident status based on the "guardianship" described above would elevate form over substance, and we therefore conclude it is not sufficient to establish residency in this state for purposes of enrolling in public schools.
This situation is analogous to the circumstances that prompted an OPPAGA[4/] report dated October 2003, a copy of which is attached hereto. In that report, OPPAGA examined whether an out-of-state exceptional student education (ESE) student was a "resident" of Florida for purposes of public school FTE if the student came to Florida to attend a residential care facility. As in the situation described above, the students "lived" in Florida at the private facility but the parents lived out of state. OPPAGA concluded that since the residency of the student followed that of his/her parents, such a student would not be a resident of the State of Florida and would not be eligible to attend public school in this state. Such a student could not be reported for FTE funding. That position was codified in section 1003.57(2)(a), Florida Statutes. The same conclusion applies to the situation described above. (Emphasis added).
The Department does not dispute the fact that it has not promulgated the Letter as a rule in accordance with section 120.54.
The specific question posed by Mr. Glassman, as summarized in Ms. Presley's email to her colleagues and again in the Letter, is whether having a child's out-of-state parent(s) execute a form "guardianship over the education," granting such a "guardianship" to a staff person at one of the two extra- curricular training academies in Palm Beach County, Florida, qualifies that staff person as a "guardian." Mr. Glassman apparently was under the misimpression, when he asked his question, that both Bucky Dent Baseball and Harid used a form "guardianship over the education" in order to attempt to establish Palm Beach County residency for their enrollees.
Mr. Glassman's description was based on a specific inquiry from Bucky Dent Baseball; apparently, it was the Bucky Dent Baseball program that described Harid's operations as similar in an effort to obtain approval for enrollment of its baseball students. Regardless of how Mr. Glassman got his impression that the programs were similar, the facts assumed in the Letter were not shown to fit the Harid program.
There were no allegations in the petition, nor was any documentation offered to establish, that Harid uses a form "guardianship over the education" as described in the Letter. Harid's counsel acknowledged at the oral argument that Harid does not utilize a form "guardianship over the education." Harid does not ask parents of enrolling ballet dancers to
execute a form "guardianship over the education" that gives a Harid staff person "guardianship over the education" of the Harid enrollee.
Upon receiving Ms. Presley's letter, Mr. Glassman set forth his suggested approach for the District to follow in dealing with the request for authorization to register students from Bucky Dent Baseball. His analysis provided in pertinent part:
Registration of Students from Bucky Dent BB Academy
. . . I received Ms. Presley's written response to my inquiry on March 11, 2011.
. . . Essentially, it is the opinion of the FDOE that under the circumstances of both the dance and baseball programs at issue here, the residency of the student follows that of the natural parent. Thus it would be improper to allow a student who does not live with his or her parent(s) with in [sic] the School's boundaries to enroll in such school. The DOE Counsel's opinion is based upon the OPPAGA report dated October, 2003.
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While the [OPPAGA] report . . . [applies] to exceptional students' instruction, the logic of the placement issue would be the same for any student. The provision of [District Policy] 5.011(6), would apply in the unique circumstance such as where the natural parent(s) could not provide for the care of their child and had to designate someone to be the child's guardian for all purposes.
In the two situations here the parents are simply electing to send their children to a private school for enrichment on certain extracurricular activities (dance or
baseball) and then asking the School Board of Palm Beach County to provide the educational component of the program to those students whose parent(s) do not live within the boundaries of that particular school.
Allowing such students to be enrolled would be contrary to the opinion of the FDOE and the intent of School Board Policy 5.011-6.
However, since the program at Spanish River has students already enrolled, who are near the end of their high school career, it may be considered unjust to penalize those students. Consequently, the District may consider whether those students who are currently enrolled at Spanish River in grade
11 and 12, through the Harid Conservatory, will be allowed to complete their registration at that school if they desire to do so. All other existing students and any new students seeking registration for the next school year (2011/2012) from either program will not be accepted. It should be understood that there is no certainty that those students that are registered next year will be eligible for FTE funding. This is a risk the District would need to accept if it allows those students identified above to be registered. (Emphasis added).
The District apparently accepted Mr. Glassman's suggested approach. On March 28, 2011, the District's assistant superintendent sent the following email to two District school principals:
Dear Principals:
Based on a legal opinion from the Florida Department of Education, dated March 7, 2011, the DOE would not consider an out of state student attending a private academy (i.e. Bucky Dent Baseball Academy or Harid
Dance Conservatory [sic]) "a resident of the state for purposes of enrollment in Florida public schools." Therefore, these students cannot be enrolled in Spanish River High School nor Boca Raton High School, and those that are currently enrolled must be made aware of the need to find other options for graduation.
The exception will be at Spanish River High School, where current Seniors and next year's Senior class will be allowed to graduate from Spanish River. No other students can be enrolled, and grade 9 and 10 Harid Dance Conservatory [sic] students will not be allowed to attend after this year.
The District's decision regarding enrollment of Harid students was also conveyed to Harid, according to the affidavit of Harid's director. Neither the substance, nor the means of the District's communication of its decision to Harid are of record.
Harid describes the injury it believes it will suffer because of the Department's Letter, as follows:
The impact of the Letter on Harid is direct and not speculative. As a not-for-profit entity, Harid's ability to operate its programs and to offer talented young dancers professional training without sacrifice to their academic education will be impaired.
Harid's efforts to attract and enroll new students -- as well as retain its current student body -- will be significantly impaired if Harid is unable to offer access to the public schools of Florida, is required to charge students tuition for private high school, or must incur the expense of private school tuition on top of the expenses already incurred for the
professional ballet dance training provided to Harid students. (Emphasis added).
Harid alleges that this described impact is the type that the Florida Education Code is designed to protect, because the definition of "parent" in section 1000.21(5), Florida Statutes, includes "a person exercising supervisory authority over a student in place of the parent." Harid claims to meet this description and, as such, claims that it has a legally recognized right to be a "parent" under the Florida Education Code.
Harid's petition and motion for summary final order request the following relief: (1) a determination that the Letter is an invalid unadopted rule; (2) an order that the Department immediately discontinue reliance upon the Letter; and
that the Department pay Harid's attorney's fees and costs incurred in this proceeding. In contrast, Harid's cross-motion for summary final order and Proposed Summary Final Order both revise the second category of requested relief to provide: "All reliance upon the [Letter] shall immediately be discontinued."
No evidence was presented to support a Finding of Fact that at least 30 days before Harid filed its petition initiating this proceeding on May 2, 2011, the Department received notice that its Letter may constitute an unpromulgated rule. The
petition itself does not allege that such 30-day advance notice was provided.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. § 120.56(4), Fla. Stat.
Harid initiated this action pursuant to section 120.56(4), which provides in pertinent part:
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.
. . . 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).
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 must immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for agency action.
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(f) 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).
Harid has the burden of proving that it has standing to bring this challenge and the burden of proving that the challenged letter constitutes a rule that was required to be promulgated in accordance with section 120.54. § 120.56(4)(a) and (b). If Harid meets its burden on these two items, then the burden shifts to the Department to prove that rulemaking is not feasible or practicable. § 120.56(4)(b). The standard of proof is by a preponderance of the evidence. § 120.57(1)(k).
In order to demonstrate standing to challenge an agency statement as an unadopted rule, Harid must prove it "is substantially affected by [the challenged] agency statement[.]"
§ 120.56(4)(a). The "substantially affected" test in section
120.56 is a two-part test: Harid must establish: (1) that the
agency statement will result in a real and immediate injury in fact; and (2) that the asserted interest is arguably within the "zone of interest" intended to be protected or regulated by the statutory scheme at issue. Jacoby v. Fla. Bd. of Med., 917 So. 2d 358, 360 (Fla. 1st DCA 2005).
The injury claimed by Harid does not meet the first test for standing. None of the potential economic impacts that Harid described is a real or immediate result from the Letter. Instead, the alleged impacts from the Department's Letter (as opposed from the District's decision to limit enrollment of Harid students) are too remote and lack the directness and immediacy necessary to support standing. See Volusia Cnty. Sch. Bd. v. Volusia Homes Builders Assn., Inc., 946 So. 2d 1084, 1091 (Fla. 5th DCA 2006).
The challenged Letter specifically addresses only those students whose parents execute a form "guardianship over the education" in favor of a staff person at a private academy for the apparent purpose of claiming residency status to enroll in public school. The Letter gives the opinion that the Department would not consider "such" students to be Florida residents for purposes of enrollment in Florida high schools.
Harid argues that the purpose and effect of the Letter must be considered from the District's perspective and that the District obviously interpreted that Letter much more broadly.
Both Mr. Glassman and the District's assistant superintendent apparently interpreted the Letter as expressing an opinion that Harid students could be properly denied enrollment. But that is because, as found above, Mr. Glassman was operating under the misimpression, apparently conveyed by Bucky Dent Baseball, that the Harid program used the same form "guardianship over the education" as Bucky Dent Baseball planned to use. But the District's misimpressions cannot change what the Letter actually says. The Department's attorney was asked about use of a form "guardianship over the education," and the Department's attorney gave her opinion about the use of such a form. Harid has not shown that the Letter applies to Harid, because Harid does not use a form "guardianship over the education."
If it is appropriate, as Harid urges, to look beyond the four corners of the challenged statement to interpret what the statement really means based on the purpose and effect of the statement, then it is necessary to consider Ms. Presley's summary of the District's inquiry to which the Letter responds. This summary confirms that the District's inquiry was specific to the use of a "guardianship over the education" form. And importantly, the summary makes clear that the District was looking to its own policies, which are promulgated as rules. Ms. Presley was informed that the District wanted to refuse enrollment to the out-of-state students who were utilizing a
"guardianship over the education" form as the means to claim Florida residency. However, the District was apparently concerned that the Department would disagree.
Harid's argument that it is necessary to consider the District's actions is really an acknowledgement that Harid's economic injuries are not the direct or immediate result of the challenged letter. Instead, Harid's complaint and asserted economic injuries flow from the District's decision to allow only limited enrollment of Harid dancers in District high schools. As a result of the District's decision, Harid will have to make alternative arrangements for the high school education of some of its enrolled dancers beginning in the fall of 2011. Harid may have to require that its ballet students shoulder the cost of high school tuition at a local private high school. Alternatively, Harid may have to absorb the costs of providing for its dancers' high school education, instead of subsidizing living expenses for dancers whose families could not otherwise afford to pay room and board for their children to live away from home.
Even if Harid demonstrated that it uses a form "guardianship over the education," as apparently Bucky Dent Baseball planned to use, it is clear from an examination of the District's rules on student residence enrollment requirements that the real problem for Harid would be an inability to satisfy
the District's rules. Use of the kind of document described in the Letter to create a so-called form "guardianship over the education" would not satisfy District Policies 5.01 and 5.011 in several respects: the rules would require that the parent(s) or legal guardian(s) execute a general power of attorney for all purposes, not limited to education; the student would have to live with the person supervising in place of the parent(s) at a residential address, not a business or commercial address; and the parent(s) or legal guardian(s) would have to execute a sworn statement explaining why they are unable to serve in a parental role, not just why they choose to send their child to an extracurricular training program.
It is unclear how Harid has in the past attempted to comply with the District's rules; however, it is clear that Harid's ballet enrollees are there because their parent(s) or legal guardian(s) choose to have their children undergo this extracurricular training experience. Thus, as Mr. Glassman concluded, enrolling these students would be contrary to the District's policies, which allow for only limited exceptions to the general rule that residency follows the parent(s) or legal guardian(s) of minor students, under circumstances where the parent(s)/guardian(s) cannot fulfill their parental role because they are unable to do so.
That the Department's opinion agreed with the District's rules, does not mean that Harid's economic plight would, thereby, become the direct result of the Department's opinion, even if Harid used the described "guardianship over the education" form. The Letter adds nothing to what is already provided by the District's rules, other than the Department's confirmation that the District could properly deny enrollment under the circumstances described.
Harid also fails to satisfy the second prong of the standing test. Harid's asserted interest in avoiding the economic burden of having to make other arrangements for the high school education needs of its out-of-state dancer enrollees was not shown to be within the zone of interest sought to be protected by the Florida Education Code.
Harid makes the circular argument that since it claims the status of "parent," because it is acting in a supervisory capacity over its students in place of the parents, it, thereby, has a recognized legal right to act as "parent" for all purposes. But the apparent interest sought to be protected by the multi-part definition of "parent" in the Florida Education Code is the interest of parents and students in getting an education. The inclusion of someone acting in a supervisory capacity over a student in place of the parents is a recognition of the interests of the parents and student, where circumstances
require someone else to step in to facilitate those interests. It is not a means for asserting independent economic interests in carrying out an extracurricular business, even if it is a not-for-profit business that serves worthy objectives.
Thus, Harid's zone of interest argument fails, because Harid cannot show the required nexus between its alleged interest at stake and the interests sought to be protected by the statutory scheme at issue. The interest Harid has alleged as the basis for challenging the Letter is Harid's self-interest in not having to pay for the private high school education of its ballet dancers or not having to charge those ballet dancers for private high school education, which might make Harid's dance instruction program less attractive. That interest is not arguably one that the Florida Education Code was designed to protect.
Harid's argument also ignores the framework of the Florida Constitution in conjunction with the Florida Education Code, whereby school districts are the bodies with the authority to regulate enrollment of students in their district public schools. The District has exercised this authority by adopting the rules set forth above. Under the District's rules, which incorporate the definition of "parent" in section 1000.21(5) and elaborate on how one can qualify as a person acting in a supervisory capacity in place of a student's parents, Harid does
not qualify. Harid cannot show the unique circumstances of parents unable to serve in the parental role, who have executed a general power of attorney for all purposes in favor of a person who resides with the student in Palm Beach County at a residential address. Harid cannot claim a legally-protected interest to serve as "parent," unless it can meet the District's rule criteria to qualify as a person acting in a supervisory capacity in place of a student's parents. From this perspective, as well, Harid cannot overcome the hurdle that its complaints spring from the District's action pursuant to the District's own rules. The District's rules are enforceable and serve as the regulatory predicate for the District's action with or without the Department's Letter.
Even if Harid had been able to demonstrate standing, Harid did not meet its burden of proving that the Letter is an unpromulgated rule.
A "rule" is an "agency statement of general applicability that implements, interprets, or prescribes law or policy[.]" § 120.52(16). This definition has been consistently interpreted to include only "those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." Ag. for Health Care Admin. v. Custom Mobility, Inc., 995 So. 2d 984, 986 (Fla. 1st DCA 2008), quoting McDonald v. Dep't of
Banking & Fin., 346 So. 2d 569, 581 (Fla. 1st DCA 1977) (emphasis added).
The Department argues that the analysis in cases applying these standards compels the conclusion that the Letter does not constitute a "rule." In particular, the Department points to Volusia County School Board v. Volusia Homes Builders
Assn., Inc., supra, and Florida Department of Financial Services v. Capital Collateral Regional Counsel, 969 So. 2d 527 (Fla. 1st DCA 2007).
In Volusia Homes Builders, the Volusia Homes Builders Association (VHBA) challenged, as an unadopted rule, a statement by Volusia County School Board recommending that the Volusia County Council increase its school impact fee charged to developers constructing new homes in the county. The recommendation was accepted and adopted by Volusia County Council, resulting in an increased school impact fee that VHBA's members would have to pay. 946 So. 2d at 1087. The court analyzed the unadopted rule claim as follows:
The recommendation had, at most, an indirect effect on VHBA. . . [T]he recommendation, standing alone, did not require compliance, create certain rights while adversely affecting others, or otherwise have the direct and consistent effect of law. The record shows it had no immediate or binding effect on either the County Council or the VHBA. Rather, the recommendation was considered by the County Council . . . Ultimately, the County Council
elected to increase the impact fee to the amount requested by the School Board, but
. . . the County Council was free to modify or reject the proposed impact fee.
The County Council's February 2005 decision to impose the increased impact fees-which, in contrast to the recommendation, did affect the VHBA's rights-did not retroactively render the
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.
Id. at 1090 (emphasis added).
As in Volusia Homes Builders, in this case the challenged statement was nothing more than the Department's opinion regarding denial of enrollment to certain students, based on an inquiry by the District. The Letter, standing alone, had no impact on Harid's rights or on the District's rights. The Letter did not deny enrollment to Harid students, nor did it require the District to deny enrollment to Harid students.
As was true with respect to the School Board's recommendation in Volusia Homes Builders, the Letter was not retroactively transformed into a rule when the District considered the Department's opinion (as the District interpreted it) and relied, in part, on the opinion to take action that was
dictated by the District's rules. The District was under no legal obligation to accept the Department's opinion, and, indeed, demonstrated that by not accepting the Department's view in its entirety and deciding instead to allow limited enrollment of some Harid students.
Harid argues that the Department's opinion carried sway with the District, because the Department has certain oversight roles with respect to the District. Harid points to the Letter's reference to the OPPAGA report, addressing an analogous residency question in the context of exceptional education students. The OPPAGA report suggested that the residency question not only answers the question of whether a student is properly enrolled, but also whether it is proper to include a student in the count of FTE (full-time equivalent) students. The FTE count for a school district is used to establish state-level funding for public school operations. Thus, Harid argues that the reference to the OPPAGA report in the Letter should be viewed as at least a threat, and perhaps even a determination, that the Department will withhold funding from the District if the District enrolls Harid students. That is quite a leap--and an examination of the governing law and procedure for FTE accounting, audits, and state funding decisions shows that Harid's leap is unwarranted.
The Florida Constitution designates district school boards as the entities authorized to operate, control, and supervise public schools within their district boundaries.
Art. IX, § 4(b), Fla. Const. ("district school boards shall operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.").
Section 1001.42 provides some detail to this constitutional authority by enumerating specific powers and duties of the district school boards. These include the power to adopt and provide for execution of plans for the establishment, organization, and operation of district schools. A specific component of this authority is the adoption of enrollment plans for students who will attend the district public schools. § 1001.42(4)(a). This statutory authority is specifically invoked in the history notes to the District's promulgated policies discussed above. See also § 1003.02(1)(a) (school districts to adopt rules for admitting students to district schools.). While certain powers and duties of district school boards are expressly subject to supervisory oversight by the Department, no supervisory or oversight role is delegated to the Department with respect to the districts' exercise of powers
to adopt enrollment plans and rules for student attendance at district public schools.
Harid has not identified any statutory authority that would empower the Department to make the sort of enrollment determinations for a school district at issue here, or to compel a district to enroll students, or to prohibit a district from enrolling students.
Once the decision is made in accordance with district rules to enroll a student in a district public school, that student goes on the membership roll for the particular school program in which the student is enrolled. Pursuant to section 1011.61(1)(a), Florida Statutes, a "full-time equivalent student" is a student "on the membership roll" of a public school program.
The annual allocation of state funds to school districts for their operations is made upon consideration of the FTE student composition in each district based on district program membership surveys of each school and aggregate FTE student membership by school and by district. § 1011.62(1)(a).
The Office of the Auditor General, which, like OPPAGA, is a legislative body that is entirely separate from the District and from the Department, conducts audits of school district FTE enrollment counts for compliance with approved criteria and procedures for placement of students. § 1010.305,
Fla. Stat. As previously noted, the District's criteria for enrolling students in its public schools are set forth in its adopted rules.
Florida Administrative Code Rule 6A-1.0453 sets forth procedures for educational program audits. Paragraph (2)(e)1. provides for issuance of a written audit report by the Office of the Auditor General to be conveyed to the Department's deputy commissioner for Finance and Operations. The audit report must identify "[e]rrors in the reported full-time equivalent membership by program category[.]" It is not clear whether this rule contemplates that the audit report should flag as "errors" the inclusion in the FTE count of students who should not have been enrolled at all based on the school district's enrollment criteria, or whether the rule only contemplates flagging as "errors" the miscounting of enrolled students and the misallocation of FTEs to the wrong program category. But it is clear from this rule that the identification of an FTE error by the Auditor General in an audit report is a prerequisite to corrective action by the Department.
If an FTE error is identified in the audit report, then the deputy commissioner computes the adjustment to the school district's state funding allocation "to compensate for the errors" identified by the audit report. The Department then must provide official notice to the school district and provide
an opportunity for the district to request a hearing pursuant to sections 120.569 and 120.57, prior to any final action being taken. Fla. Admin. Code R. 6A-1.0453(3), (4), (5).
Based on the foregoing statutory structure and allocation of responsibilities, the Department's Letter could not be considered a binding determination that if the District enrolls Harid students in the future and if the District counts those students as FTEs in the future, then there will be FTE errors for which the Department will adjust (reduce) the District's state funding allocation. At most (and ignoring for now the fact that the Letter does not apply to Harid students, whose parents do not execute "guardianship over the education" forms), the Letter raises the possibility that in the future, the Auditor General could flag the District's FTE counts for errors based on failure to follow the approved (District) enrollment criteria; and that if the Auditor General's audit report flags such FTE errors, the Department would propose a state-funding adjustment to compensate for the errors, in accordance with rule 6A-1.0453. If all of these possibilities were to occur, only at that point would there be a proposed
binding determination, and the District would be entitled to an administrative hearing to challenge the proposed agency action.
The District demonstrated by its own words and actions that it did not consider the Letter to be any sort of conclusive
or binding determination that the District would not be entitled to state funding for future enrolled Harid students. The District also confirmed by its words and actions that the enrollment decision was its decision to make. As a result, even though the District believed the Department's opinion expressed in the Letter was that Harid students should not be enrolled in District public schools, the District made the decision that it was not going to deny enrollment to all Harid students.
Instead, then-current seniors and juniors from Harid could continue at Spanish River through their graduation. As Mr. Glassman recognized:
It should be understood that there is no certainty that those [Harid] students that are registered next year will be eligible for FTE funding. This is a risk the District would need to accept if it allows those students identified above [i.e., Harid juniors and seniors] to be registered.
If, as Petitioner argues, the Letter was a binding determination with the force and effect of law or was perceived as such by the District, then Mr. Glassman's observation would have been: "It should be understood that those [Harid] students that are registered next year will certainly not be eligible for
FTE funding; this is more than a risk, it is a certainty."
With regard to the FTE funding implications, the Letter is similar to the challenged Horn Report in Florida Department of Financial Services v. Capital Collateral Regional
Counsel, supra. In Capital Collateral, the Department of Financial Services (DFS) received several "whistleblower" complaints regarding improper use of state funds for lobbying by the heads of two capital collateral regional counsel ("CCRC") offices. 969 So. 2d at 528. Following an investigation, an office within DFS issued a report that became known as "the Horn Report." The Horn Report concluded that the CCRC offices were executive agencies and were, therefore, prohibited by section 11.062, Florida Statutes, from using state funds to lobby the Legislature. Id. at 529. The Horn Report further recommended that DFS legal staff initiate action against the CCRC offices to recover the funds improperly paid to lobbyists. Id. The CCRC for the Middle Region subsequently filed an unpromulgated rule challenge pursuant to section 120.56(4). The final order in that proceeding concluded that the agency's report constituted a rule, because the "agency statement of general applicability interprets and implements section 11.062." Id. at 530.
On appeal, the First District recited the well-settled principle that when "deciding whether a challenged action constitutes a rule, a court analyzes the action's general applicability, requirement of compliance, or direct and consistent effect of law." Id. Emphasizing that the statements contained within the Horn Report were not self-executing and that the agency had taken no action against the CCRC, the court
held that the Administrative Law Judge erred in concluding that the report was a rule:
The statements contained in the Horn report do not amount to a rule. The statements were never self-executing or capable of granting or taking away rights of any person by its own terms. The Horn report merely represents a recommendation by OFI staff that legal action be instituted to collect funds spent in violation of section 11.062. A recommendation 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. Neither the opinion of OFI that CCRC-M is an executive branch agency, nor the recommendation that action be taken . . . to recover funds used in violation of the anti- lobbying statute, affected any substantive rights of CCRC-M or Mr. Jennings. As noted, no action was taken against either CCRC-M or Mr. Jennings, based upon the Department's alleged "rule" that CCRC-M constituted an executive agency. The Department has not issued an Administrative Complaint or a Notice of Intended Agency Action seeking reimbursement for funds expended for the lobbyist. . . .
Id. at 530-31 (internal citations omitted).
As the Capital Collateral court recognized, an agency's conduct of, and report on, an investigation "does not amount to promulgating a rule which can be preemptively challenged prior to any attempt" by the agency at enforcement. Id. at 531. "If the Department had tried to enforce the Horn Report's recommendation, clearly the Department would have to allow a point of entry for Mr. Jennings, because at that point
he would be personally affected." Id. The same analysis applies here. The Department made no determination regarding the District's future entitlement to FTE funding for possible future enrollment of Harid students. An attorney for the Department simply looked into a question raised by the District and provided the District with her opinion. If the Department decides in the future to seek adjustments for future FTE funding errors, then the Department will have to provide the District a point of entry to administrative proceedings, because at that point, it would be substantially affected.
As an ultimate litmus test for whether the Letter could be said to have the sort of generally applicable direct force of law that would require its promulgation as a rule, it is worth considering whether the remedy authorized for a successful section 120.56(4) challenge would be meaningful. In this regard, it is significant to note Harid's own shift in the relief it has asked for in this proceeding. The statute authorizes as a remedy for an unpromulgated rule, an order directing the agency whose statement is challenged to immediately discontinue its reliance on the unadopted statement. As suggested in the Findings of Fact above, Harid appears to have recognized that its concerns raised in this case would not be addressed if the relief it obtained were only an order directing the Department to discontinue its reliance on the
Letter. Nothing in the record suggests that the Department has relied in any way on the Letter as the basis for any Department action.
Harid has attempted to shift the relief to a different (and unauthorized) remedy: Harid now asks for an order broadly stating that reliance (in any way, by any agency) on the Letter shall be discontinued. This shift underscores the flaw in Harid's attempted challenge: Harid's real beef is with the District action, which was taken after consideration of the Letter and which may have been partially influenced by that letter, but not so influenced as to completely follow what the District believed was the Department's opinion (which simply supported the District's own rules). The Letter, standing alone, had no direct or immediate impact on Harid or on the District and was binding on no one. An order directing the Department to discontinue its reliance on the Letter, which is the corrective remedy available for an unadopted rule, would be a meaningless order.
The Department also argues that its Letter is not a "rule," because it is simply an application of existing statute and rule provisions to a set of facts set forth in the Letter. In this regard, Environmental Trust v. Department of Environmental Protection, 714 So. 2d 493 (Fla. 1st DCA 1998), is instructive. Environmental Trust involved a challenge to an
alleged unadopted rule, which was in the form of a memorandum applying a statute and an existing DEP rule to a particular fact pattern. The statute authorized reimbursement of the "actual and reasonable costs" of cleaning up petroleum contamination.
DEP's implementing rule set forth qualifications for reimbursement, including a prohibition against reimbursement for "interest or carrying charges of any kind." Id. at 497.
The memorandum, challenged as an unadopted rule in Environmental Trust, addressed whether discounts under a factoring arrangement, whereby a factoring company advanced capital at a discounted rate to contractors, subcontractors, and investment companies to finance the petroleum contamination clean-up, could be claimed as costs of the clean-up in applications for reimbursement of the face amount of the invoices and not the discounted rates actually paid under the factoring arrangement. In the memorandum, the Department concluded that the cost of the discounts "amounted to interest" and that the "interest was not transformed into a reimbursable item merely because the claimant elects to characterize it as a discount." Id. at 498.
The Environmental Trust majority recited the following principle to assess the challenge to the agency statement regarding factoring discounts: "An agency statement explaining how an existing rule will be applied in a particular set of
facts is not itself a rule. . . . Instead, these matters are left for the adjudication process under section 120.57, Florida Statutes." Id. at 498. Applying that principle, the court determined that "[t]his statement appears to be nothing more than an analysis of how the existing prohibition against interest and carrying charges would be applied to a factoring scheme." Id. at 499. As such, the unadopted rule challenge failed.
The controversy in this case is similar. The challenged Letter considered whether use of a form "guardianship over the education," executed by out-of-state parents in favor of a staff person at a private extracurricular training academy created a true guardianship. Although the Letter did not cite the statute or the District rule implicated by those facts, the context of the District's request and the Department's response was the District's rules on student residence enrollment requirements, which incorporate by reference the definition of "parent" in section 1000.21(5). The Letter does not purport to be a detailed interpretation of the statutory definition of "parent" or of the District's rules which elaborate on the requirements to meet each of the alternative categories of the statutory term, "parent." Rather, the Letter, responding to the question posed, considered whether a "guardianship over the education" described constituted a true "guardianship"-–one of
the alternative tests for "parent." Thus, the Letter appears to be a direct application of one term in the statute, incorporated by reference into the District's rule, to the fact pattern described by the District. For this reason as well, Harid's challenge fails under the logic of Environmental Trust.5/ Petitioner's Request For Attorney's Fees and Costs
Even if Harid prevailed in its challenge to Respondent's Letter, it would not be entitled to attorney's fees and costs pursuant to section 120.595(4), as requested. That statute provides in pertinent part:
If the appellate court or administrative law judge determines that all or part of an agency statement violates
s. 120.54(1)(a), or that the agency must immediately discontinue reliance on the statement and any substantially similar statement pursuant to s. 120.56(4)(e), a judgment or order shall be entered against the agency for reasonable costs and reasonable attorney's fees, 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.
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)(a), such notice shall automatically operate as a stay of proceedings pending rulemaking. The administrative law judge may vacate the stay for good cause shown. A stay of proceedings under this paragraph remains in effect so long as the agency is proceeding
expeditiously and in good faith to adopt the statement as a rule. The administrative law judge shall award reasonable costs and reasonable attorney's fees accrued by the petitioner prior to the date the notice was published, unless the agency proves to the administrative law judge that it did not know and should not have known that the statement was an unadopted rule. Attorneys' fees and costs under this paragraph and paragraph (a) shall be awarded only upon a finding that the agency received notice that the statement may constitute an unadopted rule at least 30 days before a petition under s. 120.56(4) was filed and that the agency failed to publish the required notice of rulemaking pursuant to s. 120.54(3) that addresses the statement within that 30-day period. Notice to the agency may be satisfied by its receipt of a copy of the
s. 120.56(4) petition, a notice or other paper containing substantially the same information, or a petition filed pursuant to
s. 120.54(7). An award of attorney's fees as provided by this paragraph may not exceed
$50,000. (Emphasis added).
Petitioner claims that an award of attorney's fees and costs is mandatory under paragraph (a) quoted above. However, a condition precedent to an award under paragraph (a) is the
30-day advance notice set forth in paragraph (b), in the emphasized language above. See Sellers, The 2008 Amendments to
the APA: Open Government Act, 82 Fla. Bar Journal 43 ("The act amends F.S. §120.595(4) to allow for the award of attorneys' fees and costs in challenges to unadopted statements only upon a finding that the agency received notice at least 30 days before the petition was filed that the statement may constitute an
unadopted rule and the agency failed to publish the required notice of rulemaking that addresses the statement within that 30-day period.").
No evidence was presented that would allow the undersigned to make the requisite finding in accordance with section 120.595(4)(b) that Respondent was given notice at least
30 days before the petition initiating this proceeding was filed at the Division of Administrative Hearings that the statements made in its Letter may constitute an unadopted rule.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petition for Administrative Determination that a Statement Violates § 120.54(1)(a) is dismissed.
DONE AND ORDERED this 29th day of July, 2011, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2011.
ENDNOTES
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 codification.
2/ The Department had some reservations about agreeing with all of the facts describing Harid as set forth in an affidavit by Harid's director, such as whether the potential economic harm to Harid would be substantial. However, the parties agreed that the affidavit could be considered for purposes of deciding whether to grant or deny the cross-motions for summary final order. It is appropriate to rely on affidavits to determine whether there are disputed issues of material fact, and the Department did not create a disputed issue of material fact regarding the extent of potential economic harm by presenting a counter-affidavit or other evidence refuting the statements in Harid's affidavit. See § 120.57(1)(h).
3/ Although there was no direct evidence of which portions of Policy 5.01 were changed when the rule was amended in 2008, a reasonable inference is that the emphasized language regarding submitting a general power of attorney giving general custody of a student to a resident of Palm Beach County in accordance with Policy 5.011 must have been added in the 2008 amendment, because Policy 5.011 was not in existence at the time of previous amendments to Policy 5.01.
4/ OPPAGA is an abbreviation for the Office of Program Policy and Governmental Accountability. OPPAGA is a legislative office that conducts policy research on the performance of state programs and provides information and recommendations to the Legislature. § 11.51, Fla. Stat.
5/ The Department raised one additional argument--that even if the Letter otherwise meets the definition of a "rule," the letter falls within the exception in section 120.52(16)(b) for "[l]egal 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 Department notes that this exception was applied in Capital Collateral, supra, to an "interagency communication." 969 So. 2d at 531. However, this appears to be a mischaracterization, in that the legal opinion
to which this exception was deemed applicable in that case was written by a DFS attorney to DFS. The court concluded that the rule exception for legal opinions applied, because DFS never acted on the memorandum. Thus, the memorandum at issue was actually an intra-agency legal opinion.
It is not entirely clear whether the phrase "prior to their use in connection with an agency action" in section 120.52(16)(b) is intended to suggest that an exempted legal opinion could lose its exempt status if the legal opinion were used in connection with another agency's action. Harid asserts that the use of "an" before "agency" shows a clear intent that a legal opinion would lose its exempt status, if used by any agency in connection with agency action. However, another reasonable interpretation is that "an agency action" means "an action" by the agency issuing the legal opinion; that is, that "an" modifies "agency action," not just "agency." cf. Mcsherry, et al. v. Dep't of Cmty. Aff., Case No. 03-2711RU (DOAH Aug. 15, 2003), Summary Final Order at p. 3, aff'd per curiam, Case No.
1D03-3957 (Fla. 1st DCA, June 3, 2005) ("Counsel's statement of DCA's position [in an email advising the county attorney for Alachua County] is nothing more than his legal opinion and, without more, does not rise to the level of stated agency policy.").
The undersigned found no direct authority analyzing the legal opinion exception in section 120.52(16)(b) in a true interagency context similar to that presented here, where one agency gives its legal opinion to another agency, which uses the legal advice, in part, in connection with action of the agency receiving the opinion. It is not necessary to resolve this question here, because the controversy in this case is best answered by reference to the threshold issues set forth above, i.e., whether Harid is substantially affected by the Department's letter and whether that letter meets the definition of a rule.
COPIES FURNISHED:
Jesslyn Krouskroup, Acting Coordinator Joint Administrative Procedures Committee Pepper Building, Room 680
111 West Madison Street Tallahassee, Florida 32399-1400 KROUSKROUP.JESSLYN@leg.state.fl.us
Liz Cloud, Program Administrator Administrative Code
Department of State
R.A. Gray Building, Suite 101 Tallahassee, Florida 32399 lcloud@dos.state.fl.us
Lois Tepper, Interim General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Martha Harrell Chumbler, Esquire Carlton Fields, P.A.
215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190
Mari M. Presley, Esquire Department of Education
325 West Gaines Street Turlington Building, Suite 1232 Tallahassee, Florida 32399-0400
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 one copy of a Notice of Administrative Appeal with the agency clerk of the Division of Administrative Hearings and a second 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 Administrative Appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 29, 2011 | DOAH Final Order | Petitioner did not prove that it is substantially affected by challenged letter from Department attorney to school district attorney, or that letter meets the definition of a "rule." Petition is dismissed. |
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