STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
) KAREN PEEK, BETH WEATHERSTONE, ) AND FLORIDA EDUCATION )
ASSOCIATION, )
)
Petitioners, )
)
vs. )
) STATE BOARD OF EDUCATION AND ) DEPARTMENT OF EDUCATION, )
)
Respondents. )
Case No. 12-1111RP
)
FINAL ORDER
Administrative Law Judge John G. Van Laningham conducted the final hearing in this rule challenge, which was brought pursuant to section 120.56(2), Florida Statutes, at the Division of Administrative Hearings in Tallahassee on May 30, 2012.
APPEARANCES
For Petitioner: Anthony D. Demma, Esquire
Meyer, Brooks, Demma & Blohm, P.A. Post Office Box 1547
131 North Gadsden Street Tallahassee, Florida 32302
For Respondents: Jonathan A. Glogau, Esquire
Lisa Raleigh, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUE
The ultimate issue in this case is whether Respondents' proposed amendment to Florida Administrative Code Rule 6A-5.030, which would establish procedures and standards governing the submission, review, and approval (or disapproval) of each school district's instructional personnel and school administrator evaluation systems, constitutes an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
On March 30, 2012, Petitioners filed with the Division of Administrative Hearings ("DOAH") an Amended Petition to Invalidate Proposed Rule and to Invalidate Agency Statement Defined As a Rule. Petitioners alleged that Respondents' proposed amendment to Florida Administrative Code Rule 6A-5.030 is an invalid exercise of delegated legislative authority.
The parties agreed to waive the deadline imposed by section 120.56(1)(c), Florida Statutes. Consequently, the undersigned scheduled the final hearing for May 30-31, 2012.
The final hearing began, and was completed, on May 30, taking less time than had been anticipated due to the parties' having agreed to a number of facts, which were set forth in their Prehearing Stipulation filed on May 29, 2012. The relevant stipulations of fact have been incorporated in the findings below.
Petitioners presented two witnesses (Pamela Burtnett and Kathryn S. Hebda) and offered Petitioner's Exhibits 1-4, which were received in evidence. Respondents brought Ms. Hebda——who is the Department of Education's Deputy Chancellor for Educator Quality——back to testify during their case. Joint Exhibits 1-5 were admitted. Official recognition was taken of Florida Administrative Code Rule 6A-5.065.
Before the adjournment, and after hearing from the parties (who agreed to waive the final order deadline imposed by section 120.56(1)(d) in exchange for additional time to review the transcript and prepare their respective proposed final orders), the undersigned established the deadline for filing proposed final orders, which was July 13, 2012. The final hearing transcript was filed on June 13, 2012. Each party timely filed a proposed final order.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2012 Florida Statutes.
FINDINGS OF FACT
Respondent Department of Education ("DOE") is the state agency responsible for administering and implementing educational policy under the direction and control of Respondent State Board
of Education (the "SBE"), a collegial body consisting of seven members appointed by the governor. DOE and the SBE will be
referred to collectively as "Respondents" except when it is necessary to identify a specific actor.
On September 30, 2011, DOE caused a Notice of Development of Rulemaking to be published in the Florida Administrative Weekly ("FAW"), which announced the agency's intent to substantially amend Florida Administrative Code Rule 6B-4.010 so as to establish procedures for the submission, review, and approval of district evaluation systems in accordance with section 1012.34(8), Florida Statutes.1
DOE caused a second Notice of Development of Rulemaking to be published in the FAW on November 23, 2011. This notice informed the public that the procedures for the submission, review, and approval of district evaluation systems would be set forth in an amendment to rule 6A-5.030, instead of rule 6B-
4.010. In addition, three rule development workshops were scheduled to occur between December 12 and December 14, 2011.
On February 24, 2012, a Notice of Proposed Rule was published in volume 38, no. 8, of the FAW, pages 804-07, https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2012/38 08/3808doc.pdf. The full text of proposed rule 6A-5.030 is included in this notice. Subparagraph (1)(a) of the proposed rule contains a statement that a document entitled "Review and Approval Checklist for Instructional Personnel and School Administrator Evaluation Systems, Form No. EQEVAL-2012"
("Checklist"), is incorporated by reference.2 (The published text of rule 6A-5.030 will be referred to as the "Rule Text" when necessary to distinguish between the Rule Text and any material incorporated by reference.) The Notice of Proposed Rule further advised that the rule would be presented to the SBE for its approval at a meeting on March 27, 2012.
By letter dated March 16, 2012, the Joint Administrative Procedures Committee ("JAPC") provided comments on the proposed rule to DOE. On March 26, 2012, Petitioners filed a Petition to Invalidate Proposed Rule with DOAH.
At the SBE meeting on March 27, 2012, which constituted the final public hearing on the proposed rule, DOE recommended that the proposed rule be revised to reflect JAPC's comments, and the SBE voted in favor of such revisions. The SBE approved nontechnical changes that modified both the Rule Text and the Checklist. Among the changes was the insertion into the Checklist of an incorporative reference to a document entitled "High Effect Size Indicators (2012)" ("HESI Document").
As a result of the SBE's action, proposed rule 6A- 5.030, as amended, comprises three separate documents: the amended Rule Text, the amended Checklist, and the HESI Document.3 Collectively, these three items will be called the "Rule." Respondents have not caused a notice of change concerning the Rule to be published in the FAW pursuant to section
120.54(3)(d), Florida Statutes. The documents which constitute the Rule can be found, however, online at Florida Department of Education, District Performance Evaluation Systems, http://www.fldoe.org/profdev/pa.asp (last visited Aug. 20, 2012).
On March 30, 2012, Petitioners filed an Amended Petition to Invalidate Proposed Rule, which revised their original petition to take account of the changes to the Rule that had been made by the SBE on March 27, 2012.4
Petitioner Karen Peek ("Peek") is a teacher employed by the Okaloosa County School Board. During the 2011-12 school year, Peek taught Language Arts and Science to fifth-grade students who took the Reading and Math portions of the Florida Comprehensive Assessment Test ("FCAT"). A portion of Peek's performance evaluation for 2011-12 school year will be based upon her students' FCAT Reading scores according to the formula approved by the Commissioner of Education pursuant to section 1012.34(7), which formula is mentioned in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations. The Rule requires school districts to make significant changes in their personnel evaluation systems. These changes will affect the evaluation criteria that will be used to measure Peek's level of performance and determine whether she is rated highly effective, effective,
needs improvement, or unsatisfactory. A rating of unsatisfactory could be grounds for dismissal.
Petitioner Beth Weatherstone ("Weatherstone") is a teacher employed by the Indian River County School Board.
During the 2011-12 school year, Weatherstone taught Algebra I to eighth-grade students who were tested on the Math portion of the FCAT during the school year. A portion of Weatherstone's 2011-
12 performance evaluation will be calculated using her Algebra I students' FCAT Math scores according to the formula referenced in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations conducted according to an evaluation system that will need to conform to the requirements of the Rule.
The Florida Education Association (the "FEA") is a professional association of educators and education support employees which works with and through affiliated local unions around the state in representing public school teachers in collective bargaining. The FEA and its local affiliates represent approximately 135,000 member educators in Florida on all matters associated with the wages they earn and how their performance is assessed, in addition to other issues related to their working conditions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.56, 120.569, and 120.57(1), Florida Statutes.
In administrative proceedings, standing is a matter of subject matter jurisdiction. Abbott Labs. v. Mylan Pharms., Inc., 15 So. 3d 642, 651 n.1 (Fla. 1st DCA 2009). To have standing to challenge the validity of an administrative rule in a proceeding before an administrative law judge, a person must be "substantially affected" by the rule in question.
§ 120.56(1)(a), Fla. Stat. ("Any person substantially affected by a rule or a proposed 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.")
Generally speaking, the petitioner must show that he or she will suffer an immediate "injury in fact" within the "zone of interest" protected by the statute the challenged rule is implementing or by other related statutes. See, e.g., Fla. Medical Ass'n, Inc. v. Dep't of Prof'l Reg., 426 So.2d 1112, 1114 (Fla. 1st DCA 1983). However, there "can be a difference between the concept of 'substantially affected' under section 120.56(1), and 'substantial interests' under section 120.57(1)." Dep't of Prof'l Reg., Bd. of Dentistry v. Fla. Dental Hygienist Ass'n, Inc., 612 So. 2d 646, 651 (Fla. 1st DCA 1993). Thus, for example, "decisions in licensing and permitting cases[, which]
have made it clear that a claim of standing by third parties based solely upon economic interests is not sufficient unless the permitting or licensing statute itself contemplates consideration of such interests, or unless standing is conferred by rule, statute, or based on constitutional grounds[,]" are not controlling in actions brought under section 120.56. Id.; see also Cole Vision Corp. v. Dep't of Bus. & Prof'l Reg., 688 So. 2d 404, 407 (Fla. 1st DCA 1997)("[T]his court has recognized that a less demanding standard applies in a rule challenge proceeding than in an action at law, and that the standard differs from the 'substantial interest' standard of a licensure proceeding.").
It has long been recognized that a trade or professional association is entitled to bring a rule challenge in a purely representative capacity provided it demonstrates
that [1] a substantial number of its members, although not necessarily a majority, are substantially affected by the challenged rule, [2] that the subject matter of the rule is within the association's general scope of interest and activity, and [3] that the relief requested is of the type appropriate for a trade association to receive on behalf of its members.
See Fla. League of Cities, Inc. v. Dep't of Envtl. Reg., 603 So. 2d 1363, 1366 (Fla. 1st DCA 1992) (citing Fla. Home Builders Ass'n v. Dep't of Labor & Emp't Sec., 412 So. 2d 351, 352-53 (Fla. 1982)); see also NAACP, Inc. v. Fla. Bd. of Regents, 863 So.2d 294 (Fla. 2003).
Although neither Peek nor Weatherstone is immediately regulated by the Rule (which operates directly on the school districts who employ teachers), as public school teachers they
both will be individually evaluated pursuant to district evaluation systems that must conform to the standards prescribed in the Rule. Receiving a performance rating of unsatisfactory under such an evaluation system could result in termination of employment. See § 1012.34(4), Fla. Stat. These individual teachers are, therefore, substantially affected by the Rule and have standing to challenge it.
A substantial number of the FEA's members are teachers who, like Peek and Weatherstone, are substantially affected by the Rule. The subject matter of the Rule, which affects the working conditions of teachers, is within the scope of the FEA's general interests, and challenging proposed rules affecting teachers is the sort of thing a teachers union is expected to do. The FEA has associational standing to challenge the Rule.
In a challenge to a proposed rule, the "petition must state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority." § 120.56(2)(a), Fla. Stat. The petitioner bears the initial burden of going forward with
evidence in support of its allegations. Id. After the petitioner has produced legally sufficient evidence, the burden shifts to the agency, which must "prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised." Id. In other words (eliminating the double negative), to overcome any
objection for which the petitioner has offered some legally sufficient proof, the agency must affirmatively demonstrate that, as to such objection, the proposed rule is, more likely than not, valid. In weighing the evidence and evaluating the parties' arguments, the administrative law judge must not presume the rule to be either valid or invalid. See § 120.56(2)(c).
The starting point for determining whether an existing or proposed rule is invalid is section 120.52(8), in which the legislature defined the term "invalid exercise of delegated legislative authority." Pertinent to this case are the following provisions:
A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s.120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; . . .
§ 120.52(8), Fla. Stat.
In Whiley v. Scott, 79 So. 3d 702 (Fla. 2011), the Florida Supreme Court examined the rulemaking procedures set forth in chapter 120 in the context of a challenge to certain executive orders that the Governor had issued, which the Court held violated the separation of powers doctrine to the extent they operated to suspend agency rulemaking. Id. at 716-17. Although he did not write for the Court, Justice Polston penned a primer on the rulemaking requirements, which constitutes a useful overview of the process by which rules are made in Florida. He explained:
An agency can only engage in rulemaking if it has been granted the authority to do so from the Legislature. See § 120.52(17), Fla. Stat. (2010). Further, "[a] grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required." § 120.536(1), Fla.
Stat. (2010). And "[a]n agency may only adopt rules that implement or interpret the specific powers and duties granted by the enabling statute." Id.
* * *
The rulemaking process (with the exception of emergency rules) begins in one of three ways. First, an agency on its own must initiate the process "as soon as practicable and feasible" after an agency statement becomes a rule of general applicability. § 120.54(1)(a), Fla.
Stat. (2010). Second, the Legislature may require implementation of a statute by agency rules, and "such rules shall be drafted and formally proposed as provided in [the APA] within 180 days after the
effective date of the act, unless the act provides otherwise." § 120.54(1)(b), Fla. Stat. (2010). Finally, the process to adopt, amend, or repeal a rule can begin upon a petition to initiate rulemaking filed by a regulated person or a person having a substantial interest in a rule. § 120.54(7), Fla. Stat. (2010). An agency must initiate the rulemaking process or deny the petition in writing no later than thirty days after the petition is filed. Id.
An agency must provide notice of the development of proposed rules (with the exception of an intention to repeal a rule) in the Florida Administrative Weekly. § 120.54(2)(a), Fla. Stat. (2010). However, "[t]he APA establishes no particular procedure to be followed by an agency during the original drafting of the proposed rule." Adam Smith [Enters., Inc. v. State Dep't of Envtl. Regulation], 553 So. 2d [1260,] 1265 n.4 [(Fla. 1st DCA 1989)]. An
agency may choose to develop a proposed rule on its own, or it may choose to hold a public workshop or to utilize negotiated rulemaking between interested parties.
See § 120.54(2)(c)-(d), Fla. Stat. (2010).
However, if an affected person requests in writing a public workshop, an agency must hold one unless the agency head explains in writing why a workshop is not necessary. § 120.54(2)(c), Fla. Stat. Additionally, "[a]n agency head may delegate the authority to initiate rule development." § 120.54(1)(k), Fla. Stat. (2010).
At least twenty-eight days prior to adoption and upon the agency head's approval, a notice of the proposed rule must be published in the Florida Administrative Weekly, including the proposed rule's text and a reference to the statute being implemented. § 120.54(3)(a), Fla.
Stat. (2010). The agency may schedule a public hearing on the proposed rule and must do so if an affected party requests a public
hearing within 21 days of the publication of intended agency action. § 120.54(3)(c)1, Fla. Stat. (2010).
As a legislative check, the agency must also file the proposed rule with the Administrative Procedures Committee. § 120.54(3)(a)4, Fla. Stat. (2010); §
120.545(1), Fla. Stat. (2010). If the
Administrative Procedures Committee objects to the proposed rule, the agency must respond. § 120.545(3), Fla. Stat. (2010).
And if the agency does not initiate administrative action to address the committee's objection, the committee may recommend legislative action to address it. § 120.545(8)(a), Fla. Stat.(2010).
* * *
A substantially affected person may also "seek an administrative determination of the invalidity of the [proposed rule or an existing] rule on the ground that the rule is an invalid exercise of delegated legislative authority." § 120.56(1)(a), Fla. Stat. (2010). . . . [A]n administrative law judge (ALJ) must hold a hearing on the petition challenging the rule within a specified timeframe. § 120.56(1)(c), Fla.
Stat. (2010). If the ALJ determines that a proposed rule is partially or wholly invalid, the proposed rule may not be adopted unless the ALJ's determination is reversed on appeal. § 120.56(2)(b), Fla.
Stat. (2010).
A proposed rule is adopted when it is filed, upon the agency head's approval, with the Department of State. § 120.54(3)(e), Fla. Stat. (2010). It cannot be filed for adoption less than 28 days or more than 90 days after the publication of the notice of proposed rulemaking, "until 14 days after the final public hearing, until 21 days after a statement of estimated regulatory costs . . . or until the administrative law
judge has rendered a decision" in a challenge to a proposed rule, whichever is applicable. § 120.54(3)(e)2., Fla.
Stat. (2010).
Importantly, an agency has the discretion to withdraw or modify a proposed rule after the publication of the notice of the proposed rule but before the rule is adopted. § 120.54(3)(d), Fla. Stat. (2010). An agency is required to withdraw a proposed rule if the time limits and other requirements of the APA have not been satisfied. § 120.54(3)(e)5., Fla.
Stat. (2010). Thereafter, an agency must notice its withdrawal or modification in the Florida Administrative Weekly. § 120.54(3)(d), Fla. Stat.; § 120.54(3)(e)5.,
Fla. Stat. But once a rule has become effective, it can only be repealed or amended through the rulemaking process. § 120.54(3)(d)5., Fla. Stat. (2010).
Whiley, 79 So. 3d at 721-23 (Polston, J., dissenting)(footnote omitted).5
Petitioners have objected to Respondents' use, in the Rule Text and the Checklist, of a drafting technique known as incorporation by reference. "An incorporative reference occurs whenever legislation references material outside of itself and indicates expressly or by implication that this material should be treated as if it were fully set forth at that point in the legislation." F. Scott Boyd, Looking Glass Law: Legislation by Reference in the States, 68 La. L. Rev. 1201, 1210 (2008)("Legislation By Reference")(emphasis added). Thus, a "reference is incorporative if its effect is to adopt the
standards, requirements, or prohibitions of the referenced material as its own standards, requirements, or prohibitions." Id. (emphasis added). "The requirements of the referenced material are then said to be 'incorporated into' or 'adopted into' the legislation that adopted them, without the necessity of printing the text verbatim." Id.
The Administrative Procedure Act ("APA") addresses the subject of incorporative references in its provisions governing rulemaking. Section 120.54(1)(i) provides, in relevant part, as
follows:
A rule may incorporate material by reference but only as the material exists on the date the rule is adopted. For purposes of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes.
An agency rule that incorporates by specific reference another rule of that agency automatically incorporates subsequent amendments to the referenced rule unless a contrary intent is clearly indicated in the referencing rule. A notice of amendments to a rule that has been incorporated by specific reference in other rules of that agency must explain the effect of those amendments on the referencing rules.
In rules adopted after December 31, 2010, material may not be incorporated by reference unless:
a. The material has been submitted in the prescribed electronic format to the Department of State and the full text of the material can be made available for free public access through an electronic
hyperlink from the rule making the reference in the Florida Administrative Code[.]
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6. The Department of State may adopt by rule requirements for incorporating materials pursuant to this paragraph.
(Emphasis added).
Exercising the rulemaking authority provided in section 120.54(1)(i)6., Florida Statutes, the Department of State has placed additional conditions on incorporative references. In relevant part, Florida Administrative Code Rule 1-1.013 states as follows:
Any ordinance, standard, specification, guideline, manual, handbook, map, chart, graph, report, form or instructions to forms, or other similar material that meets the definition of rule provided in Section 120.52(16), F.S., and is generally available to affected persons may be incorporated by reference in a rule adopted pursuant to Section 120.54, F.S., and Rule 1-1.010, F.A.C.
A reference to material incorporated in a rule must include:
Specific identification of the incorporated material, along with an effective date. Forms and their instructions should be identified by title, the form number, and effective date. In addition, incorporated forms and instructions should clearly display the form title, form number, effective date, and the number of the rule in which it is incorporated.
A statement that the material is incorporated by reference.
A statement describing how an affected person may obtain a copy of the incorporated material.
(Notice: agencies or units of government not within the Department of State may not indicate the Department of State or the Administrative Code and Weekly Section as the agency responsible for providing copies of incorporated materials.)
A rule may incorporate material by reference, but only in the form that the material exists on the date that the rule is adopted. . . . .
An agency may incorporate another of its own rules by reference. Unlike other incorporated materials, however, such an incorporation will automatically incorporate subsequent amendments of the incorporated rule(s), unless the agency clearly expresses a contrary intent within the rule that incorporates other rule(s). . . . .
(5)(a) [T]he submitting agency shall electronically file a complete and correct copy of all materials incorporated by reference in its rules through the Department of State's e-rulemaking website at www.flrules.org, no later than three (3) business days prior to the rule adoption. .
. . . At the time the agency submits its rule certification package for adoption in accordance with Rule 1-1.010, F.A.C., the agency shall also provide a paper copy of the Certification of Materials Incorporated by Reference form, as provided in this rule, stating that the materials incorporated were filed electronically, but shall not provide a paper copy of the materials incorporated.
* * *
When incorporated materials are filed electronically through the Department of State's e-rulemaking Internet website, the Department shall make the full text of
incorporated materials available free for public access through an electronic hyperlink from the rule that references the material, directly to the material incorporated. Hyperlinks from rules in the Florida Administrative Code to any material other than incorporated materials are prohibited.
Although incorporated materials will be made available electronically on the Department of State's e-rulemaking Internet website, incorporated materials shall not be published in the Florida Administrative Code or Administrative Weekly.
(Emphasis added).
Other requirements bearing on incorporative references reside in the APA section governing the publication of rules in the Florida Administrative Code ("FAC"), which statute provides in part as follows:
The Department of State shall: (a)1. Through a continuous revision and publication system, compile and publish electronically, on an Internet website managed by the department, the "Florida Administrative Code." The Florida
Administrative Code shall contain all rules adopted by each agency, citing the grant of rulemaking authority and the specific law implemented pursuant to which each rule was adopted, all history notes as authorized in
s. 120.545(7), complete indexes to all rules contained in the code, and any other material required or authorized by law or deemed useful by the department. The electronic code shall display each rule chapter currently in effect in browse mode and allow full text search of the code and each rule chapter. The department may
contract with a publishing firm for a printed publication; however, the department shall retain responsibility for the code as provided in this section. The electronic publication shall be the official compilation of the administrative rules of this state. The Department of State shall retain the copyright over the Florida Administrative Code.
* * *
Forms shall not be published in the Florida Administrative Code; but any form which an agency uses in its dealings with the public, along with any accompanying instructions, shall be filed with the committee before it is used. Any form or instruction which meets the definition of "rule" provided in s. 120.52 shall be incorporated by reference into the appropriate rule. The reference shall specifically state that the form is being incorporated by reference and shall include the number, title, and effective date of the form and an explanation of how the form may be obtained. Each form created by an agency which is incorporated by reference in a rule notice of which is given under
s. 120.54(3)(a) after December 31, 2007, must clearly display the number, title, and effective date of the form and the number of the rule in which the form is incorporated.
The department shall allow adopted rules and material incorporated by reference to be filed in electronic form as prescribed by department rule. When a rule is filed for adoption with incorporated material in electronic form, the department's publication of the Florida Administrative Code on its Internet website must contain a hyperlink from the incorporating reference in the rule directly to that material. The department may not allow hyperlinks from rules in the Florida Administrative Code to any material other than that filed with and
maintained by the department, but may allow hyperlinks to incorporated material maintained by the department from the adopting agency's website or other sites.
Electronically publish on an Internet website managed by the department a continuous revision and publication entitled the "Florida Administrative Register," which shall serve as the official publication and must contain:
All notices required by s. 120.54(3)(a), showing the text of all rules proposed for consideration.
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The Florida Administrative Register Internet website must allow users to:
* * *
(d)View agency forms and other materials submitted to the department in electronic form and incorporated by reference in proposed rules.
§ 120.55, Fla. Stat. (emphasis added).
Petitioners have identified seven incorporative references, which they contend are invalid. Two of these are located in the Rule Text. The five others are found in the Checklist, which is itself incorporated by reference into the Rule Text. (The Checklist, in other words, is both referenced material and referential rule.) In their Proposed Final Order, Petitioners allude, additionally, to the possibility that the Rule Text's incorporation of the Checklist is invalid.
Regarding the incorporation of the Checklist, the following provisions of the Rule Text are pertinent:
Submission Process.
(a) Evaluation systems shall be submitted to the Department's Division of Educator Quality for review and approval accompanied by the document entitled Review and Approval Checklist for Instructional Personnel and School Administrator Evaluation Systems, Form No. EQEVAL-2012, (http://www.flrules.org/Gateway/reference.as p?No=Ref-01023) effective March 2012. The form and documentation required by the form shall be submitted electronically to EdQualityEvalSystems@fldoe.org. This form is incorporated by reference and can be obtained on the Department's website at www.fldoe.org/profdev/pa.asp.
* * *
Content of Approved Evaluation Systems. In order to be approved by the Department, an evaluation system shall:
Contain evidence of each of the elements as described in the Review and Approval Checklist for Instructional Personnel and School Administrator Evaluation Systems, Form No. EQEVAL-2012[.]
(Emphasis added).
Although nominally a form, the Checklist contains considerable prescriptive content. The meat of the Checklist is presented in a table having two columns and 67 rows. In the left-hand column, under the heading "Element Name," each of the mandatory elements——which a district's evaluation systems must include in order to receive DOE's approval——is set forth in detail, in respective descending rows, together with some
optional elements. In the right-hand column, entitled "Page number(s)/document title(s)," districts are required to inscribe citations, row by row, to the provisions of their respective proposed evaluation systems that evidence compliance with the criteria specified in the corresponding rows of the left-hand column, in accordance with the following instructions, which are given on page 3 of the Checklist:
For each element of an evaluation system shown below, provide the page number(s) where that element is addressed in your evaluation system documentation. If more than one document is included in your submission, note the title of the document as well as the page number. Documentation includes handbooks, manuals, forms, and such district policies and regulations that inform employees and evaluators of the processes, practices, and criteria of the district evaluation system.
For optional elements of an evaluation system, mark N/A in the page number column for any checklist element that does not apply to the evaluation system submitted for review. Elements where N/A may be marked are noted in the checklist. Do not mark any item N/A unless the directions for that element indicate it is a district option.
The Checklist contains dozens of mandatory elements.
Ascertaining the precise number would be difficult or impossible because reasonable people could disagree about whether some specific criterion constitutes a separate element or merely a subpart of a single element. It suffices for present purposes to observe that there are a substantial number of required
elements——approximately 50. These elements are not included in the Rule Text.
Subparagraph (4)(a) of the Rule Text provides that DOE approval of a district's evaluation system is contingent upon the system's "meet[ing] all criteria found in paragraph (2)," the bulk of which are described in the incorporated Checklist and nowhere else. The Checklist's prescriptive content, therefore, is not incidental or secondary to a primary instrumental purpose——as a form's substantive contents usually are——but rather constitutes the document's raison d'être. That is, in a reversal of ordinary expectations, the Checklist's instrumental purpose——to be the common instrument upon which districts must supply proof of compliance with the Rule's requirements regarding evaluation system content——is secondary to the "form"'s primary function, i.e., being the official compilation of the content criteria.
Collectively, the content criteria are a critical component of the Rule. In drafting the Rule, Respondents elected to hive off these criteria from the Rule Text and store them off-site, in the incorporated Checklist. To be sure, the incorporative reference to the Checklist shortens the Rule Text, making it easier to read. This benefit comes at a cost, however, which is that the rule "as published is now incomplete, and the reader must obtain a copy of the adopted material to
determine the meaning of the [rule]." Legislation By Reference,
68 La. L. Rev. at 1216.
The question of whether the Rule Text's incorporation of the Checklist is valid is an interesting one whose answer seems obvious at first blush but becomes a bit elusive upon reflection. The difficulty arises from the special treatment vis-à-vis publication that the APA gives to forms which meet the definition of the term "rule."
Referring to rules generally, section 120.54(3)(a)1., Florida Statutes, requires that "the full text of [a] proposed rule or amendment" be published in the FAW at least 28 days ahead of adoption. Similarly, "all rules adopted by each agency" must be published in the FAC. See § 120.55(1)(a)1., Fla. Stat. Forms which "impose[] any requirement or solicit[] any information not specifically required by statute or by an existing rule"——and the Checklist clearly does so——fall within the definition of the term "rule." See § 120.52(16), Fla. Stat. These provisions suggest that forms, like all rules, must be published in the FAW and the FAC.
Yet, the APA prohibits the publication of forms in the FAC and requires that forms meeting the definition of rule be incorporated by reference "into the appropriate rule." See
§ 120.55(1)(a)4., Fla. Stat. Similarly, but more broadly, rule 1-1.013(7) provides that incorporated materials "shall not be
published in the Florida Administrative Code or Administrative Weekly." Thus, forms that come within the definition of rule—— forms with a touch of prescriptive content ("ruleish" forms)—— comprise a unique type of rule that, unlike other rules, (1) must be incorporated by reference into a rule published in the FAC and, for that reason, (2) is exempt from the APA's publication requirements respecting forms generally.
Superficially, at least, the incorporation of the Checklist appears not only to be valid (procedurally speaking), but necessary.
Creating the potential for disagreement, however, is the fact that the APA does not define the term "form." What can be said with confidence is that forms are a subset of the universe of rules. That is, while all forms which meet the definition of rule provided in section 120.52(16) are rules, not all rules are forms.6 And if, as seems to be the case, the APA makes a meaningful distinction between rules and forms, then there should be some limiting principle or principles that prevent agencies from deeming some rules "forms" to avoid the necessity of publishing the texts of such "forms" in the FAW and the FAC. Absent such limits, an entire rule could be adopted merely by an incorporative reference to the document——labeled a "form"——containing all of the relevant prescriptive content: e.g., "THE FULL TEXT OF THE PROPOSED RULE IS: 6A-5.030
Instructional Personnel and School Administrator Evaluation Systems. The document entitled Rules Relating to Instructional
Personnel and School Administrator Evaluation Systems, Form No., etc., is incorporated by reference." It is debatable whether such an incorporative reference would be valid. Such incorporated material would be a form in name only——a "formish" rule, i.e., a rule having just a trace of a form's attributes.
The APA unfortunately gives no guidance with regard to (a) whether there actually is a distinction between "ruleish" forms and "formish" rules (and how to tell the difference if there is); and (b) whether "formish" rules (if such category exists) are subject to the same publication requirements as other, non- form rules.
The incorporative reference to the Checklist obviously does not pose as extreme a test of the boundaries of incorporation as the foregoing example does. The undersigned need not decide whether the Rule Text's incorporative reference to the Checklist is invalid, however, because Petitioners did not state this objection with sufficient particularity in their petition. At a minimum, though, it seems a questionable practice to place, as Respondents have done here, so much of a rule's prescriptive content in a form that the form's utility as a tool for those who must follow or enforce the rule is secondary to its function as the locus of some essential part of
the rule, which anyone wanting to comprehend the rule's full meaning must obtain.
Apart from the disadvantage of having essential pieces of the Rule located in separate documents, another consequence of incorporating the Checklist into the Rule Text by reference is that the Checklist will not (indeed, cannot) be published in the FAC. E.g., § 120.55(1)(a)4., Fla. Stat. ("Forms shall not be published in the Florida Administrative Code."). This means that none of the materials to which the Checklist makes incorporating references can be made available through hyperlinks from the rule as published in the FAC directly to such materials. Material may not lawfully be incorporated by reference, however, unless "the full text of the material can be made available for free public access through an electronic hyperlink from the rule making the reference in the Florida Administrative Code." § 120.54(1)(i)3.a., Fla. Stat.; see also
§ 120.55(1)(a)5., Fla. Stat. (The "department's publication of the Florida Administrative Code on its Internet website must contain a hyperlink from the incorporating reference in the rule directly to that material[,]" i.e., the referenced material in electronic form on file with the Department of State.)(emphasis added); Fla. Admin. Code R. 1-1.013(6).
Thus, the APA's rulemaking requirements plainly forbid an incorporative chain whereby incorporated material contains
incorporative references to other material. Put another way, the APA only allows incorporated material to be one step removed from the published rule containing the incorporative reference. To the extent the Checklist purports to incorporate material that would be two steps removed from the published Rule Text, it is an invalid exercise of delegated legislative authority pursuant to section 120.52(8)(a). As mentioned, Petitioners complain about five such references in the Checklist.
The simplest of these to identify is the express incorporative reference to the HESI Document, which is a three- page white paper setting forth specific educational practices DOE considers highly effective. By itself, the HESI Document has no legal effect, e.g., requiring that school districts make use of the findings contained therein. Article II, section B, paragraph 1 of the Checklist provides in relevant part, however, as follows:
The indicators [of proficiency] in an evaluation system shall be based on evidence of instructional or leadership practice and shall include the following:
1. The Department's identified set of indicators on high effect size instructional and leadership strategies with a causal relationship to student learning growth. These indicators are incorporated by reference and posted on www.fldoe.org/profdev/pa.asp, labeled High Effect Size Indicators.
Checklist at 6-7. This incorporative reference, which is coupled with a mandate that districts include the high effect size indicators in their respective evaluation systems, makes the HESI Document operative as a rule requiring obedience: failure to include the high effect size indicators would be grounds for disapproval of a district's system.
Respondents assert that the HESI Document is "properly incorporated by reference" because this material "meet[s] the definition of a rule as it is an enforceable requirement for the approval of the districts' evaluation systems." Resp. Prop. Final Order at 14. This assertion is premised in part on Respondents' contention that "only material that meets the definition of a rule provided in Section 120.52(16) [can] be incorporated by reference in a proposed rule." Id. at 13 (emphasis added). This contention, which is based on rule 1- 1.013(1), is incorrect.
Rule 1-1.013(1) provides the following enumeration of materials that may be incorporated by reference: "Any ordinance, standard, specification, guideline, manual, handbook, map, chart, graph, report, form or instructions to forms, or
other similar material that meets the definition of
rule . . . ." (emphasis added). The underscored language is somewhat awkward,7 but contrary to Respondents' contention, it is clear that the modifying clause——"that meets the definition of
rule"——refers not to the entire list, but rather to the last antecedent, namely "other similar material." This is the grammatically proper understanding of the sentence, reinforced by the observation that the modifying clause is not as applicable to the other items in the list, as to the last. This is because only one or two of the first dozen items listed (i.e., ordinances, standards) would typically contain the type of prescriptive content that marks a rule, and many would rarely contain such language (e.g., maps, charts, graphs, reports).
Indeed, the HESI Document, as mentioned above, is not, within its four corners, a rule by definition; its terms become enforceable only through the incorporative reference in the Checklist. In sum, if Respondents' interpretation of rule 1- 1.013(1) were correct, which it is not, then ironically the incorporation of the HESI Document would be forbidden by rule 1- 1.013(1)——but it is not.
Respondents' misreading of rule 1-1.013(1) gives rise to their erroneous claim that the incorporative reference to the HESI Document was necessary because the referenced material specifies enforceable requirements. The truth is somewhat the reverse——the HESI Document specifies enforceable requirements because the incorporative reference includes a directive that use of the indicators described in the referenced material is necessary. Respondents are mistaken, too, in claiming that the
HESI Document was "properly incorporated." It was not, for two reasons.
First, the link to the referenced material points to a page at DOE's web site——not to a site maintained by the Department of State, as required. See § 120.55(1)(a)5., Fla. Stat. ("The department may not allow hyperlinks from rules in the Florida Administrative Code to any material other than that filed with and maintained by the department . . . .").8 Material that resides on DOE's web site is not under the control of, and therefore is not maintained by, the Department of State.
Second, the incorporative reference appears only in the Checklist, which is itself incorporated material. For reasons discussed at length above, this is statutorily prohibited.
Accordingly, the Checklist's incorporative reference to the HESI Document constitutes a material failure to follow the APA's rulemaking requirements.
Unlike the express incorporative reference to the HESI Document, the other references in the Checklist about which Petitioners complain mention external material without specifying that such material is incorporated by reference.
Both sides agree that the failure to use explicit "incorporating language" means that the referenced material has not been incorporated. Respondents argue that the materials in question were not incorporated because they are not in themselves rules
and thus cannot be incorporated lawfully in light of the limiting clause (as Respondents see it) in rule 1-1.013(1). Petitioners contend that the Checklist directs persons to consult external materials without incorporating such materials by reference, which constitutes noncompliance with the rulemaking procedures. Although neither side is completely correct in this regard, Petitioners have the advantage.
To begin, "[n]o special 'incorporating' language is required in the reference itself, and the mere mention of external material constitutes an incorporation if it is necessary to consult the material to complete the meaning of the referencing legislation." Legislation By Reference, 68 La. L. Rev. at 1212-13. Thus, contrary to both sides' view, the absence of a statement that the material is incorporated by reference does not determine the question of whether such material has been incorporated by reference. Petitioners are correct, however, that in situations where the mention of external material in a rule constitutes an incorporation, the de facto incorporative reference runs afoul of the requirement that a reference to material incorporated in a rule "must include" a "statement that the material is incorporated by reference."
Fla. Admin. Code R. 1-1.013(2)(b). In other words, therefore, while it is possible implicitly to incorporate material by
reference, implicit incorporative references are not permitted in Florida rules.
Respondents' argument, that rule 1-1.013(1) restricts——to "material that meets the definition of rule"——the type of material that can be incorporated into rules, was discussed and rejected above. It is therefore irrelevant whether the materials mentioned in the Checklist meet the APA's definition of rule. The real question is whether any such materials must be consulted to complete the meaning of the Checklist. If so, then the operative reference is de facto incorporative, and its inclusion in the Checklist violates the rulemaking requirements.
Petitioners object to the Checklist's references to a 30-page document entitled Florida's Common Language of Instruction ("CLI"). The CLI lists 213 terms in alphabetical order and provides a definition for each term. The Checklist's first reference to the CLI appears on page 1, which contains the following definition:
"Common language of instruction" means the Department's core set of terms and definitions to be used uniformly in evaluation and professional development systems by districts and the Department, posted on www.fldoe.org/profdev/pa.asp.
(Emphasis added). Other references to the CLI are made in Article IX, which provides as follows:
Systemic processes to inform workforce, using Florida's common language of instruction, on what they are to know and be able to do based on elements in the evaluation system.
Systemic processes to provide initial training and continuously improve the capacities of workforce and evaluators, using Florida's common language of instruction, found at www.fldoe.org/profdev/pa.asp, to understand and implement the performance expectations in the evaluation system indicators. Florida's common language of instruction will be incorporated in rule by reference, and entitled as follows: Florida's Common Language of Instruction, Form No. EQEVAL- 2012-4.
District process for providing training programs to ensure that all individuals with evaluation responsibilities understand the proper use of the evaluation criteria and procedures. The Department's guidance on training evaluators is posted at www.fldoe.org/profdev/pa.asp, labeled Training Evaluators in District Instructional and Administrator Evaluation Systems.
Checklist at 10-11 (emphasis added).
Respondents argue that "[c]ompliance with or use of the [CLI] document is not required for approval of an evaluation
system." Resp. Prop. Final Order at 7. The plain language of the Checklist, however, provides otherwise. Districts are instructed that they must use the definitions set forth in the CLI. Failure to do so clearly would be a basis for disapproval of an evaluation system. It is beyond reasonable dispute that, to understand the complete meaning of the "training" element, the CLI must be consulted. Thus, the CLI is incorporated implicitly by the present reference, notwithstanding the unusual attempt to defer the incorporative reference to a future rulemaking exercise.
The incorporation of the CLI constitutes a material failure to follow the rulemaking requirements because: (a) the APA does not allow incorporated materials to contain incorporative references; (b) the link to the referenced material (which appears twice, once on page 1 and again on page
10 of the Checklist) points to a page at DOE's web site——not to a site maintained by the Department of State; and (c) the statement that the CLI "will be incorporated" by reference does not conform to the requirement that there be a statement that the material is incorporated by reference.
Article IX, section B, contains another reference to which Petitioners object, namely to the training guidelines set forth in the document entitled "Training Evaluators in District Instructional and Administrator Evaluation Systems," which is
posted at DOE's web site. To comply with the "training" element, districts are required to include in their evaluation systems "training programs that are based upon guidelines provided by the Department." Obviously, it is necessary to consult the training guidelines contained in the referenced document to complete the meaning of this requirement. A district's failure to base its training programs upon DOE's referenced guidelines would be grounds for disapproval of the district's proposed evaluation systems. Consequently, it is concluded that the document setting forth the training guidelines mentioned in Article IX, section B, is implicitly incorporated by reference.
The incorporation of the document entitled "Training Evaluators in District Instructional and Administrator Evaluation Systems" constitutes a material failure to follow the rulemaking requirements because: (a) the APA does not allow incorporated materials to contain incorporative references; (b) the link to the referenced material (on page 11 of the Checklist) points to a page at DOE's web site——not to a site maintained by the Department of State; and (c) the Checklist lacks a statement that the material is incorporated by reference.
Article II, section A, of the Checklist provides as follows:
A. Performance evaluations must be based upon sound educational principles and contemporary research in effective educational practices. The evaluation system shall be based on a research framework that supports student learning and effective instruction. The district's research framework must implement the core standards of the FEAPs, Rule 6A-5.065, F.A.C., for instructional systems and the core expectations of the FPLS, Rule 6A- 5.080, F.A.C., for school administrators.
Research frameworks for evaluation that are aligned with the FEAPs, Rule 6A-5.065, F.A.C., and FPLS, Rule 6A-5.080, F.A.C., are
posted on www.fldoe.org/profdev/pa.asp. Districts using these frameworks satisfy this element of the evaluation system review by listing the name of the framework.
Districts using research frameworks not on the Department's core list shall provide citations to published material that conveys the frameworks preferred methods and strategies for student learning and faculty development, and a crosswalk demonstrating the alignment of the district's selected framework with the FEAPs, Rule 6A-5.065, F.A.C., or FPLS, Rule 6A-5.080, F.A.C.
Checklist at 6 (emphasis added). Petitioners object to the foregoing reference to DOE's preapproved research frameworks, as described in the document entitled "Research Frameworks," which is posted at DOE's web site.
Respondents contend as follows:
The research framework document on the DOE website is not incorporated by reference in the proposed rule and constitutes a resource document or guidance for the
districts. . . . The document provides examples of frameworks that the Department reviewed and determined do implement the [Florida Educator Accomplished Practices]. These frameworks were then pre-approved; however the districts do not have to adopt any of these pre-approved frameworks. They are just examples.
Resp. Prop. Final Order at 7.
Respondents thus characterize the reference to the Research Frameworks document as an "informational reference."
An informational reference is one whose
only effect is to alert the reader to the existence of additional information or other material that might be of interest. An informational reference therefore neither affects the material to which it refers nor is in any way affected by it. In one sense, then, informational references have no real legal effect at all.
Legislation By Reference, 68 La. L. Rev. at 1205 (footnote omitted). Because informational references have no legal effect, the entity making such a reference cannot assess a penalty, or grant or withhold a benefit, in consequence of
someone's failure to meet, or violation of, the referenced standards, requirements, or prohibitions. See id. at n.13.
The Checklist's reference to DOE's favored frameworks is coupled with a directive that use of the preapproved frameworks satisfies the requirement that evaluation systems must be based on research frameworks aligned with certain core standards and expectations. Therefore, districts using the preapproved frameworks are entitled to a benefit that districts using other frameworks do not receive: assurance that their evaluation systems will meet this particular element upon review. While it is not necessary for districts to use a preapproved framework, as Respondents assert, it is legally sufficient for them to do so. That there is a legal consequence of compliance with the referenced material——which must be consulted to complete the meaning of Article II, section A—— makes the mention of the Research Frameworks document implicitly incorporative rather than merely informational.
The incorporation of the document entitled "Research Frameworks" constitutes a material failure to follow the rulemaking requirements because: (a) the APA does not allow incorporated materials to contain incorporative references; (b) the link to the referenced material (on page 6 of the Checklist) points to a page at DOE's web site——not to a site maintained by
the Department of State; and (c) the Checklist lacks a statement that the material is incorporated by reference.
Article I of the Checklist, entitled "Performance of Student Elements," provides in relevant part as follows:
A. For classroom teachers of courses associated with state assessments under Section 1008.22, F.S.: Verification that state assessment data and the associated learning growth model approved pursuant to Section 1012.34(7), F.S. are used in the evaluation of teachers assigned to teach the courses associated with a state assessment.
* * *
D. For school administrators, student learning growth based on statewide assessment results as calculated by the learning growth model approved pursuant to Section 1012.34, F.S. and if employed, student learning growth results that are included in addition to statewide assessment results.
Checklist at 3-4 (emphasis added).
The "learning growth model" to which the Checklist refers——which is sometimes also called the "value-added model" or simply the "formula"——is a method by which the FCAT (or other statewide assessment) results of a teacher's students are converted into an individualized "value-added" score that is supposed to reflect that teacher's personal contribution to his or her students' "learning growth." Section 1012.34(7)(a) directs the Commissioner of Education to approve such a formula no later than June 1, 2011. "After the commissioner approves
the formula to measure individual student learning growth on the FCAT . . . , the State Board of Education shall adopt" it by rule." Id.
The SBE caused a Notice of Proposed Rule to be published on January 6, 2012, in the FAW, pages 17-19, https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2012/38 01/3801doc.pdf, which informed the public of the agency's intent to adopt rule 6A-5.0411 addressing the formula for measuring student learning growth. Petitioners in this case challenged that proposed rule, giving rise to Weatherstone, et al. v. Florida State Board of Education, et al., DOAH Case No. 12- 0765RP. While the rule challenge was pending, a Notice of Change/Withdrawal of proposed rule 6A-5.0411 was published in the FAW on March 16, 2012. See Fla. Dep't of State,
Div. of Library & Info. Serv., https://www.flrules.org/gateway/ readFile.asp?sid=3&tid=11227379&type=1&File=6A-5.0411.htm (last
visited Aug. 20, 2012). The administrative challenge to proposed rule 6A-5.0411 was dismissed on March 21, 2012. As of
this writing, the SBE has not adopted, as a rule, the learning growth model approved by the commissioner.
Petitioners complain that the Checklist requires districts to use the learning growth model, which is an unadopted rule. Respondents do not disagree that the Checklist compels the use of the FCAT formula. They argue——based on
section 1012.34(7)(b), which states: "[b]eginning in the 2011- 2012 school year, each school district shall measure student learning growth using the formula approved by the commissioner under paragraph (a) for courses associated with the FCAT"——that "[u]ntil the adoption of the formula [as a rule], the statute is clear that the districts shall use the formula approved by the Commissioner." Resp. Prop. Final Order at 19. Respondents add that:
Id.
The legislature could have used the term adopted, to signify that the formula could not be used until adopted as a rule, but rather chose the term approved. This choice indicated the legislature's intent that the formula should be used even before it is adopted by rule. That is what is happening here.
Respondents may have read too much into the word
"approved." A similar provision in section 1012.34(3)(a)1., Florida Statutes, which is in pari materia, states that "[e]ach school district must use the formula adopted pursuant to paragraph (7)(a) for measuring student learning growth in all courses associated with statewide assessments "
(Emphasis added). The legislature probably intended that the approved formula would be adopted promptly as a rule, with the result that the terms "approved" and "adopted" would be interchangeable in this context.
Regardless, the question at hand is not whether districts must use the formula approved by the commissioner before the SBE adopts such formula as a rule.9 The question, rather, is whether the Checklist, by reference, implicitly incorporates the learning growth model approved pursuant to section 1012.34(7). If it does, then the referenced learning growth model, upon adoption of proposed rule 6A-5.030, would no longer be an unadopted rule; the learning growth model would be part of an existing rule, and the SBE would have fulfilled its duty to adopt this formula by rule. Stated another way, if the learning growth model is incorporated by reference into the Checklist, then the SBE is proposing to adopt the model——by incorporative reference——right now.
There is no genuine dispute that the Checklist mentions the learning growth model in the context of requiring districts to use the model. Therefore, it is unquestionably necessary to consult the learning growth model to complete the meaning of Article I. The Checklist implicitly incorporates the learning growth model by reference.
The undersigned doubts that the APA allows an agency to adopt its own statement meeting the definition of rule provided in section 120.52 by incorporative reference unless such statement is a form. See supra at 26; infra at 54-55 n.7. No one has suggested, moreover, that the learning growth model
is set forth in a form. Therefore, the undersigned believes that Respondents cannot lawfully adopt the learning growth model as a rule by an incorporative reference into a published rule.
It is not necessary to decide this case on that basis, however, for the incorporative reference at issue is contrary to law for several other reasons.
The incorporation of the learning growth model constitutes a material failure to follow the rulemaking requirements because: (a) the APA does not allow incorporated materials to contain incorporative references; (b) the Checklist lacks a statement that the material is incorporated by reference; and (c) there is no hyperlink to the referenced material nor a statement describing how affected persons may obtain a copy of the learning growth model. See Fla. Admin. Code R. 1-1.013(2)(c). Because the Checklist fails to specify where an interested person could find the particular learning growth model which it mentions, the incorporative reference is, additionally, vague, providing an independent basis for declaring at least part of the Checklist invalid. See § 120.52(8)(d), Fla. Stat.
The last two objected-to references are located in the Rule Text. The first of these is found in subparagraph (1)(b), which states:
The time period for submission [of a district's proposed evaluation systems for review by DOE] shall be posted on www.fldoe.org/profdev/pa.asp. The Department will notify districts of the due date of the submission no later than 60 days prior to the date the submission is due.
The foregoing mention of an online timetable (which might not yet exist) would be incorporative (and unlawful) but for the very next sentence, which requires DOE to give each district at least 60 days' prior notice of the submission deadline. Because each district must receive actual notice from DOE at least two months before the due date for the district's submission, it is the individual notice that triggers the enforceable deadline, not the online timetable. Thus, the reference to the online timetable is informational, not incorporative, and it complies with the rulemaking requirements.
Finally, subparagraph (6)(b) provides in relevant
part:
(b) The Department's monitoring elements are found in subparagraph (6)(b)1. a. through g.:
Coordination of Data Analysis. In order to assist the Department in monitoring implementation of district evaluation systems and their impact on student learning growth and the quality of instructional, administrative, and supervisory services, a district shall submit the . . . information [specified in subparagraph (6)(b)1. a. through g.] 30 days prior the [sic] district's scheduled review of its district evaluation systems pursuant to subparagraph (6)(b)2.
* * *
Five Year Continuous Improvement Cycle.
a. The Department shall publish a schedule for review of district evaluation systems for instructional personnel and school administrators in five-year cycles on the Department's website at www.fldoe.org/profdev/pa.asp. The cycle of review shall commence in the 2014-15 school year.
Petitioners complain about this reference to an online review schedule.
Unlike the online timetable referenced in subparagraph (1)(b), the online review schedule will not be merely a useful supplement to actual notice of a submission deadline, but rather will provide each district with the actionable information concerning the due date for submission of its compliance data. In other words, the online schedule will prescribe enforceable requirements, and it must be consulted to complete the meaning of the Rule Text. Consequently, the reference in subparagraph (6)(b) to an online schedule is de facto incorporative.
The incorporation of the online schedule constitutes a material failure to follow the rulemaking requirements because:
(a) the APA does not allow the incorporation of materials that have yet to be created; (b) The Rule Text lacks a statement that the material is incorporated by reference; and (c) the link to
the referenced material points to a page at DOE's web site——not to a site maintained by the Department of State.
Between the Checklist and the Rule Text, the Rule contains at least six incorporative references, each of which was identified and discussed above, that violate the statutory rulemaking requirements. Section 120.54(3)(e) delineates the consequences of failing to comply with all statutory rulemaking requirements:
At the time a rule is filed [for adoption with the Department of State], the agency shall certify that the time limitations prescribed by this paragraph have been complied with, that all statutory rulemaking requirements have been met, and that there is no administrative determination pending on the rule.
At the time a rule is filed, the [Joint Administrative Procedures] [C]ommittee shall certify whether the agency has responded in writing to all material and timely written comments or written inquiries made on behalf of the committee. The department shall reject any rule that is not filed within the prescribed time limits; that does not comply with all statutory rulemaking requirements and rules of the department; upon which an agency has not responded in writing to all material and timely written inquiries or written comments; upon which an administrative determination is pending; or which does not include a statement of estimated regulatory costs, if required.
If a rule has not been adopted within the time limits imposed by this paragraph or has not been adopted in compliance with all statutory rulemaking requirements, the agency proposing the rule shall withdraw the rule and give notice of its action in the next available issue of the Florida Administrative Weekly.
(Emphasis added). Respondents cannot presently certify with respect to the Rule that all statutory rulemaking requirements have been met, and, in any event, the Department of State cannot accept the Rule if Respondents attempt to file it. In light of this Final Order, section 120.54(3)(e) gives Respondents no choice but to withdraw the Rule.
In sum, it is concluded that Respondents have failed materially to follow the applicable rulemaking procedures in connection with the Rule, for which reason the Rule is an invalid exercise of delegated legislative authority pursuant to section 120.52(8)(a). Material procedural flaws, such as those described in this Final Order, taint the resulting rule in its entirety and cannot be cured without starting over and redoing the process. Therefore, exercising the authority conferred under section 120.54(2)(b), the undersigned declares the proposed Rule wholly invalid. See Fin. Serv. Comm'n v. The Fla.
Ins. Council, Inc., 938 So. 2d 545 (Fla. 1st DCA 2006); State Dep't of HRS v. Fla. Project Directors Ass'n, 368 So. 2d 954 (Fla. 1st DCA 1979).
Petitioners have stated other objections to the Rule, which focus on substantive matters besides the procedural deficiencies discussed at length above. Because the Rule is wholly invalid and must be withdrawn for failure to comply with all rulemaking requirements, however, the undersigned need not
decide at this juncture whether the Rule is invalid (or not) for these additional reasons. Indeed, the undersigned concludes that it would be improper to render an opinion regarding the substantive validity of this procedurally flawed Rule, even though Respondents must adopt a rule establishing "uniform procedures for the submission, review, and approval of district evaluation systems," see section 1012.34(8), and therefore will surely try again to promulgate a rule addressing the matters covered in the Rule at hand. This conclusion is based on the premise that the next proposed rule will not be identical to the instant Rule——and could be materially different in many respects, informed not only, perhaps, by Petitioners' objections, but also shaped by the ideas of other affected persons presented at public workshops and hearings held during the future rulemaking process.
In short, the substantive terms and conditions of any future proposed rule are currently unknowable, necessarily contingent on events yet to come. Accordingly, the undersigned declines to issue a decision that would amount to an advisory opinion, cf. Santa Roso Cnty. v. Admin. Comm'n, Div. of Admin.
Hearings, 661 So. 2d 1190, 1193 (Fla. 1995), and which might have the undesirable effect of intruding prematurely into a future rulemaking process, which should be permitted to unfold
with as little of an administrative law judge's involvement as possible.
Having determined that the Rule is invalid, the undersigned is required, pursuant to section 120.595(2), Florida Statutes, to award Petitioners reasonable costs and reasonable attorney's fees (up to $50,000), unless Respondents "demonstrate[] that [their] actions were substantially justified or special circumstances exist which would make the award unjust." If Petitioners timely request such relief in accordance with the instructions below, the undersigned will conduct further proceedings to determine whether such an award must be made, and if so in what amount.
ORDER
Based on the foregoing findings and conclusions, it is ORDERED and declared that proposed rule 6A-5.030 is an invalid exercise of delegated legislative authority, in its entirety. It is further ORDERED that Petitioners shall have 30 days from the date of this Final Order within which to file a motion for attorney's fees and costs, to which motion (if filed) Petitioners shall attach appropriate affidavits (e.g., attesting to the reasonableness of the fees) and essential documentation in support of the claim, such as time sheets, bills, and receipts.
DONE AND ORDERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
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 22nd day of August, 2012.
ENDNOTES
1/ In 2011, the Florida Legislature enacted a bill that amended
§ 1012.34, which legislation (among other things) revised the provisions relating to the evaluation of instructional personnel and school administrators. See 2011 Fla. Laws ch. 2011-1.
Under § 1012.34, each school district must submit its personnel and school administrator evaluation systems to DOE for review and approval. Section 1012.34(8), which grants the SBE specific rulemaking authority, provides as follows:
The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and
120.54 which establish uniform procedures for the submission, review, and approval of district evaluation systems and reporting requirements for the annual evaluation of instructional personnel and school administrators; specific, discrete standards for each performance level . . . to ensure clear and sufficient differentiation in the
performance levels and to provide consistency in meaning across school districts; the measurement of student learning growth and associated implementation procedures required under subsection (7); a process to permit instructional personnel to review the class roster for accuracy and to correct any mistakes relating to the identity of students for whom the individual is responsible; and a process for monitoring school district implementation of evaluation systems in accordance with this section.
Specifically, the rules shall establish a student learning growth standard that if not met will result in the employee receiving an unsatisfactory performance evaluation rating. In like manner, the rules shall establish a student learning growth standard that must be met in order for an employee to receive a highly effective rating and a student learning growth standard that must be met in order for an employee to receive an effective rating.
2/ The published text of the rule contains two internet hyperlinks which purport to allow public access to the Checklist. One is a link to the Department of State's web site. Clicking on that link brings up a page which contains the following announcement: "The reference material is not adopted." Fla. Dep't of State, Div. of Library & Info. Serv., https://www.flrules.org/Gateway/sysMessage.asp?ENO=E006 (last visited Aug. 20, 2012). The other is a link to a page at DOE's web site, namely, Fla. Dep't of Educ., District Performance Evaluation Systems, http://www.fldoe.org/profdev/pa.asp (last visited Aug. 20, 2012). Two similar (but not identical) versions of the Checklist are available for download there; neither version, however, is identical to the version of the Checklist as it existed on February 24, 2012, which is in evidence as Joint Exhibit 3.
3/ For simplicity's sake, subsequent references to the Rule Text and Checklist will denote those documents, respectively, as amended on March 27, 2012.
4/ Petitioners neither sought nor received leave to amend their petition. Respondents, however, never objected, and the parties
consistently have treated the amended petition as the operative pleading. In view of the circumstances, leave to amend is hereby granted nunc pro tunc, and the amended petition is deemed filed as of March 30, 2012.
5/ The dissent's discussion of the rulemaking procedures is consistent with the majority opinion in this regard.
6/ If this proposition were not true, then § 120.55(1)(a)1., Fla. Stat. (FAC "shall contain all [adopted] rules") and § 120.55(1)(a)4., Fla. Stat. (forms "shall not be published in the" FAC) would be repugnant——unless a rule may, under any circumstances, consist only of an incorporating reference.
7/ The modifying clause echoes § 120.55(1)(a)4., Fla. Stat., which provides that any "form or instruction which meets the definition of 'rule' provided in s. 120.52 shall be incorporated by reference into the appropriate rule." It is awkward because if the "other similar material" mentioned in rule 1-1.013(1) were the agency's own statement that met the definition of rule, then the agency would need to adopt the statement by the APA's rulemaking procedure, see § 120.54(1)(a), Fla. Stat., not incorporate its unadopted rule by reference; indeed, an incorporative reference to the agency's own unadopted rule would be impermissible unless the statement were a form, see supra at 26, ¶ 33, in which case the form would need to be incorporated by reference into the appropriate rule, see § 120.55(1)(a)4., Fla. Stat. An agency can incorporate by reference one of its own existing, adopted rules, see § 120.54(i)2., Fla. Stat., but rule 1-1.013(1)'s mention of "other similar material that meets the definition of rule" probably does not denote an existing rule——at least not an existing rule of the agency desiring to use an incorporative reference. Although to decide this case the undersigned need not fully explicate the meaning of the phrase "other similar material that meets the definition of rule," this language appears intended to encompass material not prepared, promulgated, or published under the direct legal control of the agency desiring to incorporate the material.
8/ DOE would be allowed, however, to create a hyperlink taking visitors from its web site to the referenced material at a site maintained by the Department of State. Id. (The department "may allow hyperlinks to incorporated material maintained by the department from the adopting agency's website or other sites.").
The bottom line is that there must be one official anchor hyperlink to the incorporated material (stored in electronic
form). The source document containing this official anchor link must be a page in the FAC (and only the FAC), which the Department of State publishes on the Internet. § 120.55(1)(a)5., Fla. Stat. There is, further, only one official target document——the target document being the web page to which the outbound anchor link contained in the source document causes a user's browser to jump, when the user activates the link (usually by clicking on it with his or her mouse). The sole, official target document must be a web page containing the incorporated material (in electronic form) on file with, and maintained by, the Department of State. Id. This material must be stored in the Department of State's computer, and only the Department of State's computer. Obviously, if the target document containing the incorporated material (in electronic form) could be stored on a computer other than that controlled by the Department of State——whether it be the adopting agency's computer or some other(s)——then the incorporated material would be subject to editing by anyone having access to such other computer(s), and there would be no assurance of the integrity of the incorporated material. That said, § 120.55(1)(a)5., Fla.
Stat., permits the adopting agency and others to create unofficial outbound hyperlinks on their web sites, which may provide alternative means of access to the incorporated material located in the official target document. But to be clear, if an agency or someone else creates an unofficial source document linking to the incorporated material, the unofficial anchor must cause a user to navigate to the web page in the Department of State's computer where the electronic material on file with, and maintained by, the Department of State is stored. There is no statutory warrant for an outbound hyperlink directing users to incorporated material which is stored in a computer other than that of the Department of State.
9/ Respondents might be correct that districts must use the approved formula before the SBE adopts a rule addressing the formula. Even so, a district which wanted to challenge DOE's use of the formula to determine its substantial interests would be in a better position if the formula had not yet been adopted by rule, because DOE would need to establish the efficacy of the formula——which prior to adoption as a rule would not have the force and effect of law——on a case-by-case basis. Moreover, if the formula met the definition of rule provided in § 120.52, then DOE would not be able to rely upon the formula at all in an administrative proceeding under §§ 120.569 and 120.57 unless it could satisfy several conditions precedent and prove that the unadopted rule was not an invalid exercise of delegated legislative authority. § 120.57(1)(e), Fla. Stat.
COPIES FURNISHED:
Anthony D. Demma, Esquire
Meyer, Brooks, Demma & Blohm, P.A. Post Office Box 1547
131 North Gadsden Street Tallahassee, Florida 32302
Jonathan A. Glogau, Esquire Lisa Raleigh, Esquire
Office of the Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Liz Cloud, Program Administrator Bureau of Administrative Code Department of State
R. A. Gray Building, Suite 101 Tallahassee, Florida 32399 lcloud@dos.state.fl.us
Ken Plante, Coordinator
Joint Administrative Procedures Committee Room 680, Pepper Building
111 West Madison Street Tallahassee, Florida 32399-1400 plante.ken@leg.state.fl.us
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of
appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 22, 2012 | DOAH Final Order | Respondents' proposed rule, which governs school district's teacher evaluation systems, is an invalid exercise of delegated legislative authority because Respondents failed materially to follow the rulemaking procedures. |
