STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA A. BURNEY,

vs.

Petitioner,

Case No. 14-2205RX

STATE BOARD OF EDUCATION,

Respondent.

/

FINAL ORDER

Pursuant to notice, a final hearing was held in this case on June 6, 2014, in Tallahassee, Florida, before Lisa Shearer Nelson, an administrative law judge appointed by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas A. “Tad” Delegal, III, Esquire Delegal Law Offices

424 East Monroe Street Jacksonville, Florida 32202

For Respondent: David Jordan, Esquire

Paul Rendleman, Esquire Matthew J. Carson, Esquire Department of Education

325 West Gaines Street, Suite 1232 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be determined is whether the Division of Administrative Hearings has jurisdiction to determine whether Florida Administrative Code Rule 6B-4.009 is an invalid exercise

of delegated legislative authority in violation of section 120.52(8)(d), Florida Statutes (2013).

PRELIMINARY STATEMENT

On May 14, 2014, Petitioner filed a Rule Challenge, asserting that the definition of “incompetency” contained in rule 6B-4.009 is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the agency.

By Order of Assignment dated May 15, 2014, the case was assigned to an administrative law judge, and that same day a Notice of Hearing was issued scheduling the case for hearing on June 6, 2014.

The original petition named Pam Stewart, Commissioner of Education, as the Respondent. Respondent filed an unopposed motion to substitute the State Board of Education as the party- Respondent, and the motion was granted May 23, 2014.

The parties filed a Prehearing Stipulation which contains a stipulation regarding agreed-upon facts that, where relevant, have been incorporated into the Findings of Fact below. The hearing commenced and was completed June 6, 2014. Neither Petitioner nor Respondent presented any witnesses, and the parties filed Joint Exhibits 1-7. No transcript was filed. The parties filed Proposed Final Orders on June 16, 2014, which have been carefully considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Petitioner, Donna Burney (Petitioner or Ms. Burney), is a teacher in Duval County. She is also the subject of an Administrative Complaint in DOAH Case No. 13-4958PL, by which the Education Practices Commission seeks to discipline her educator certificate pursuant to section 1012.795, Florida Statutes. The Administrative Complaint alleges that Petitioner is incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school.

2. Respondent, the State Board of Education, is the chief implementing and coordinating body of public education in Florida. The Board adopted the rule which is the subject of this proceeding.

3. At all times material to the issues alleged in the Administrative Complaint in DOAH Case No. 13-4958PL, Florida Administrative Code Rule 6B-4.009 was the rule applied in those cases where alleged conduct forming the basis for dismissal from employment or discipline against an instructor’s license occurred prior to the amendment to and transfer of the rule in 2012.

4. Rule 6B-4.009 provided definitions for the basis of charges upon which a district school board could pursue a dismissal action against instructional personnel. “Incompetency” is one of the bases for charges defined by rule 6B-4.009. Incompetency was defined as follows:

   
   

   1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

      
      

      1. Inefficiency: (1) repeated failure to perform duties prescribed by law (section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

         
         

      2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

         
         

5. The specific authority for and law implemented by the rule are all provisions from chapters 229 and 231, Florida Statutes. Section 231.09, referenced in the rule, as well as all of chapters 229 and 231, were repealed in 2002. § 1058, ch.

   2002-387, Laws of Fla. At the time of rule 6A-4.009’s final

   
   

   amendment in 1983, section 231.09, Florida Statutes (1983),

   
   

   provided:

   
   

   Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

   
   

6. Prior to its repeal in 2002, section 231.09, Florida Statutes (2001), provided:

   1. The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.

      
      

   2. Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher’s duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board.

      
      

7. The rule was not amended between 1983 and 2012 to address the repeal of section 231.09. Nor was it amended to provide new statutory authority or law implemented.

8. Rule 6B-4.009 on its face applied to actions by district school boards seeking to dismiss instructional personnel, as opposed to cases brought by the Education Practices Commission seeking to discipline certified educators. However, administrative law judges have referred to the definition of incompetency in educator certificate discipline cases. While section 1012.795(1)(c) authorizes discipline for incompetence, rules 6B-4.009 and 6A-5.056 appear to be the only rules adopted by the State Board of Education to define the term.

9. Effective July 8, 2012, rule 6B-4.009 was transferred to rule 6A-5.056 and amended. Rule 6A-5.056 presently defines incompetency as follows:

   1. “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

      
      

      1. “Inefficiency” means one or more of the following:

         
         

         1. Failure to perform duties described by law;

         2. Failure to communicate appropriately with and relate to students;

         3. Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;

            
            

         4. Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or

         5. Excessive absences or tardiness.

            
            

      2. “Incapacity” means one or more of the following:

         
         

         1. Lack of emotional stability;

         2. Lack of adequate physical ability;

         3. Lack of general educational background; or

         4. Lack of adequate command of his or her area of specialization.

   
   

10. Petitioner has not challenged rule 6A-5.056.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties but not the subject matter of this proceeding pursuant to section 120.56(1) and (3), Florida Statutes (2013).

12. “Any person substantially affected by a rule . . . may seek a determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.” § 120.56(1)(a), Fla. Stat.; Dep’t of Fin. Svcs. v. Peter Brown Construction, Inc., 108 So. 3d 723, 725 (Fla. 1st DCA

    2013). Section 120.56(3)(a) provides that “a substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule.” (emphasis added). The parties stipulated that this

    proceeding is a challenge to an existing rule. (Prehearing

    
    

    stipulation, p. 5). However, rule 6B-4.009 has been transferred and amended. More importantly, the laws providing specific authority and law implemented have been repealed.

13. This proceeding is a challenge to rule 6B-4.009.

    
    

    Petitioner has not challenged rule 6A-5.056, which is the successor to rule 6B-4.009. Accordingly, Petitioner would have the burden of proving, by a preponderance of the evidence, that rule 6B-4.009 is an existing rule and is an invalid exercise of delegated legislative authority with respect to the objections raised. Dep’t of Health v. Merritt, 919 So. 2d 561, 564 (Fla. 1st

    DCA 2006); St. Johns River Water Mgm’t Dist. v. Consolidated Tomoka Land Co., 717 So. 2d 72, 76-77 (Fla. 1st DCA 1998);

    § 120.56(3)(a), Fla. Stat.

    
    

14. In Office of Insurance Regulation v. Service Insurance

    
    

    Co., 50 So. 3d 637, 638 (Fla. 1st DCA 2010), rev. denied, 63 So. 3d 750 (Fla. 2011), the First District considered a decision in which the administrative law judge found a rule of the Office of Insurance Regulation related to arbitration to be invalid. In reversing the final order, the Court stated:

    Section 120.56(3)(a), Florida

    Statutes (2008), sets forth the parameters of an ALJ's jurisdiction to entertain a rule challenge. It provides that "[a] substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule."

    § 120.56(3)(a) (emphasis added). This

    
    

    statute does not authorize a rule challenge to a rule that is no longer in existence.

    See id.; Dep’t of Revenue v. Sheraton Bal Harbour Ass’n, Ltd., 864 So. 2d 454 (Fla. 1st DCA 2003). Once a rule's enabling statute is repealed, the rule itself automatically expires. Canal Ins. Co. v. Cont’l Cas. Co., 489 So. 2d 136, 138 (Fla. 2d DCA 1986) (citing Hulmes v. Div. of Ret., Dep’t of Admin., 418 So. 2d 269 (Fla. 1st DCA 1982)). Therefore, even if the rule is still in print, it is no longer effective and does not meaningfully "exist."

    
    

    We recognize that our sister court in Witmer v. Department of Business and Professional Regulation, 662 So. 2d 1299 (Fla. 4th DCA 1995), held that an expired rule could be challenged as long as it was still being applied to the petitioner. While this holding may be a good policy, it does not reflect the plain language of section 120.56(3), which requires that a challenge be initiated during the existence of the rule. The plain language of the statute makes this requirement an issue of timing rather than substance.

    See § 120.56(3)(a) ("A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule.") (emphasis added). For this reason, we disagree with the Witmer court and hold that the ALJ in the instant case erred in reviewing the expired rule.

    Because Appellee did not file its challenge during the rule's eleven years of existence, the challenge was too late, and the ALJ should have declined to review it.

    Consequently, we reverse.

    
    

15. Besides the holding in Service Insurance Company, the repeal of chapters 229 and 231 implicates section 120.536(2), which provides:

    
    

    1. Unless otherwise expressly provided by law:

       
       

       1. The repeal of one or more provisions of law implemented by a rule that on its face implements only the provision or provisions repealed and no other provision of law nullifies the rule. Whenever notice of the nullification of a rule under this subsection is received from the committee or otherwise, the Department of State shall remove the rule from the Florida Administrative Code as of the effective date of the law effecting the nullification and update the historical notes for the code to show the rule repealed by operation of law.

          
          

       2. The repeal of one or more provisions of law implemented by a rule that on its face implements the provision or provisions repealed and one or more other provisions of law nullifies the rule or applicable portion of the rule to the extent that it implements the repealed law. The agency having authority to repeal or amend the rule shall, within 180 days after the effective date of the repealing law, publish a notice of rule development identifying all portions of rules affected by the repealing law, and if no notice is timely published the operation of each rule implementing a repealed provision of law shall be suspended until such notice is published.

          
          

       3. The repeal of one or more provisions of law that, other than as provided in paragraph (a) or paragraph (b), causes a rule or portion of a rule to be of uncertain enforceability requires the Department of State to treat the rule as provided by

    s. 120.555. A rule shall be considered to be of uncertain enforceability under this paragraph if the division notifies the

    
    

    Department of State that a rule or a portion of the rule has been invalidated in a division proceeding based upon a repeal of law, or the committee gives written notification to the Department of State and the agency having power to amend or repeal the rule that a law has been repealed creating doubt about whether the rule is still in full force and effect. (emphasis added).

    
    

16. This directive in section 120.536(2) was created in 2012, and became effective May 27, 2012. Ch. 2012-31, Laws of Fla. Therefore, after consideration of section 120.536 and the decision in Office of Insurance Regulation v. Service Insurance Company, the Division does not have jurisdiction to consider the

merits of Petitioner’s challenge to rule 6B-4.009.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner’s challenge to rule 6B-4.009 be dismissed.

DONE AND ORDERED this 7th day of July, 2014, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 7th day of July, 2014.

COPIES FURNISHED:

T. A. Delegal, Esquire Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

Paul Nathan Rendleman, Esquire Department of Education

325 West Gaines Street, Suite 1232 Tallahassee, Florida 32399

Gary Chartrand, Chairman State Board of Education

Turlington Building, Suite 1520

325 West Gaines Street Tallahassee, Florida 32399-0400

Pam Stewart

Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Liz Cloud, Program Administrator Administrative Code

Department of State

R.A. Gray Building, Suite 101 Tallahassee, Florida 32399

Mr. Ken Plante, Coordinator

Joint Administrative Procedural Committee Room 680, Pepper Building

111 West Madison Street Tallahassee, Florida 32399-1400

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 administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 14-002205RX

Orders for Case No: 14-002205RX