The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Findings Of Fact This proceeding arises from a petition filed pursuant to Section 120.54, Florida Statutes, that challenges the validity of Proposed Rule 6C2- 5.0021. STIPULATED FACTS Findings contained in paragraphs 2-9 were stipulated by the parties, and with minor editorial changes, are set forth as follows: Petitioner is Douglas A. Charity, a former doctoral graduate student in the Department of Economics at Florida State University. The parties have stipulated to Petitioner's standing to bring this action. Respondent is Florida State University. Respondent began a review of academic rules during 1992. By memorandum dated December 10, 1992, Steve Edwards, Dean of the Faculties, wrote to all Academic Deans on the subject of academic rules in the Florida Administrative Code. In this memorandum, Dean Edwards refers to the repeal of the academic rules and the incorporation of the University bulletin by reference. Attached to Dean Edward's memorandum is a draft list of those academic rules in Rule Chapter 6C2 - Academic Matters proposed to be repealed. An additional attachment to Dean Edwards' memorandum is a "Notice of Proposed Rule Amendment (Repeal)." [T]he memorandum provides [t]he purpose and effect of the proposed rule is: In that section 120.52(16), Florida Statutes, excludes curricula from the definition of a rule, all rules setting out university curricula are being repealed, as are the rules setting out admission requirements and graduation requirements. All subject matter set out in the repealed rules are contained in the various university bulletins, which are being adopted by reference. (Prehearing Stipulation paragraph 20). On April 1, 1992, Gerald B. Jaski [Respondent's General Counsel] wrote a memorandum on the subject of Administrative Rule Revisions to Dr. Robert B. Glidden, Provost and Vice President for Academic Affairs, and Dr. Steve Edwards, Dean of the Faculties. In this memorandum, Mr. Jaski states "Dean Elizabeth Muhlenfeld and Dr. Pete Metarko have suggested rule revisions which will greatly streamline the university rule scheme. According to Dr. Metarko, Mr. Carraway has been consulted and concurs with the suggestion." Mr. Jaski's memorandum also refers to the specific rules to be repealed and provides that rule 6C2- 5.002 will be amended to adopt by reference the General Bulletin, the Graduate Bulletin and the Florida State University Bulletin: Directory of Classes. Attached to Mr. Jaski's memorandum is a draft list of those academic rules in Rule Chapter 6C2 - Academic Matters, proposed to be repealed. An additional attachment to Mr. Jaski's memorandum is a "Notice of Proposed Rule Amendment (Repeal)". The purpose and effect of the proposed rule is provided as: In that section 120.52(16), Florida Statutes, excludes curricula from the definition of a rule, all rules setting out university curricula are being repealed, as are the rules setting out admission requirements and graduation requirements. All subject matter set out in the repealed rules are contained in the various university bulletins, which are being adopted by reference. The summary of this attachment provides that: The repeals shall be accommodated by the simul- taneous amendment of 6C2-5.002, Florida Adminis- trative Code, adopting by reference the university bulletin series. The various bulletins cover all subject matter presently addressed in the rules which are being repealed. (Prehearing Stipulation paragraph 21). By memorandums dated February 7, and 14, 1994, Gerald B. Jaski, advised the University President, Provost and various Vice Presidents on an update of the FSU Rule proposal. Mr. Jaski's memorandum of February 7, 1994, contained attachments titled "The Rulemaking Process Summary," "Document Requirements For Rulemaking," "Rulemaking Time Line," and "JAPC Checklist." (Prehearing Stipulation paragraph 22). By memorandum dated March 31, 1994, Gerald B. Jaski and Bjarne Andersen wrote to various academic program administrators, such as Dr. Charles F. Cnudde, Dean of the College of Social Sciences, on the subject of University FAC Rule update. This memorandum requested the administrators to review their rules currently published in the Florida Administrative Code as part of the process of repealing academic rules in the F.A.C. and incorporating the university catalogs and bulletins by reference. (Prehearing Stipulation paragraph 23). By memorandum dated April 8, 1994, Dean of the Faculties Steve Edwards wrote to Academic Deans on the subject of Academic Rules in the Florida Administrative Code. In this memorandum, Dean Edwards refers to his previous memorandum of December 10, 1992, on the same subject and requests a response to whether the Academic Deans object to repealing their applicable rules in the Florida Administrative Code and incorporating them by reference in the University Bulletin. (Prehearing Stipulation paragraph 24). Proposed rule 6C2-5.0021 repeals some of the current rules in Rule Chapter 6C2-5 - Academic matters, which rules contain university curricula, and other rules which contain admission/readmission requirements and procedures, graduation requirements, retention requirements, etc. The proposed rule additionally provides for incorporation by reference of University Catalogs and Bulletins and other various publications which "establish, contain or prescribe various academic and curriculum matters that include admission and degree requirements, course offerings, fields of study, academic calendars, facilities available to students, faculty and staff of the university, and other matters of educational delivery." (Prehearing Stipulation paragraph 26). OTHER FACTS The proposed rule reads: 6C2-5.0021 Academic and Curriculum Information; Course Offerings, University Bulletins, Catalogs, and Applications In addition to the adopted Florida State University administrative and operational rules published in the Florida Administrative Code pursuant to Florida Statutes, Chapter 120, the University publishes the following listed documents that are incorporated herein by reference which establish, contain or prescribe various academic and curriculum matters that include admission and degree requirements, course offerings, fields of study, academic calendars, facilities available to students, faculty and staff of the University, and other matters of educational delivery: Florida State University General Bulletin, 1994/1995. Florida State University General Bulletin, Graduate Edition 1993/1995. The Florida State University College of Law 1994-1995, Catalogue & Application. Study Abroad Programs. Florence Study Center Course Descriptions, Fall Semester 1994 and Spring Semester 1995. London Program Course Description, Fall Semester 1994 and spring Semester 1995. Costa Rica Program Course Description and Meeting times, Summer 1994 Information Guide to the Florida State University Panama Canal Branch, with the 1994- 1995 Academic Calendar FSU Panama Canal Branch. Those portions of the University Bulletins or Catalogs, which are not included in, or addressed by, a specific University rule as published in the Florida Administrative Code, have the force and effect of a rule by the incorporation of the text of the documents listed herein. In the event of a conflict or an inconsistency between any provisions of a Bulletin or Catalog and any adopted rule of Florida State University as published in the Florida Administrative Code, such published rules of the University shall prevail. The Bulletins and Catalogs of the University may also contain the academic calendar as set by the Florida State University within the general guidelines of the Board of Regents. Copies of the catalogs or bulletins can be obtained from the Florida State University, Office of the Registrar, Tallahassee, Florida 32306-1011. The University utilizes the following referenced application forms which may be obtained from the Florida State University, Office of Admissions, Tallahassee, Florida 32306-1009, for admission consideration to Florida State University: The "Application for Admission, State University System of Florida, Entering Freshman or Undergraduate Transfer" and instructional information contained therein (Revised 1993). See BOR rules 6C-1.012, F.A.C. The "Application for Admission to a Graduate Program, Florida State University" (Eff. 8/94), including instructions. "Application for Admission as an Inter- national Student to Florida State University" (Revised 4/93), with the accompanying forms "Confidential Report on International Applicant" (3/92) and "Confidential Financial Statement" (3/92) including instructions and the attached document entitled "International Student Inform- ation 1993/1994." Study Abroad Programs, Application for Admission (Florence, London, or Costa Rica), Form SAPA-00l (Eff. 9/94). The University bulletins and catalogs shall have prospective effect only. A student entering an academic program of the University before the published catalog date, when requirements for degree programs where different from those under newer incorporated Bulletin catalog dates may elect to remain under the earlier requirements for such a program if the pursuit of such degree or program requirements are continuous. Curriculum of the institution and academic policies and procedures of a particular school, college, department or division, including among other academic subjects admission, registrations, withdrawal, readmission, and graduation or certification requirements of particular academic programs are also currently described in various University documents available or supplied to each applicant for admission, a currently-enrolled student, or other interested parties. These publications include both the Florida State Univer- sity Bulletins, or Catalogs, and informational documents such as term or semester class schedules, the student handbook or the faculty handbook and all such other similar type documents which repre- sent a means to notice the flexible nature of the current curriculum, educational plans, offerings, and requirements which may be altered from time to time in order to carry out the purposes, mission and objectives of the University. The University reserves the right to change by rule, or order of the President or his Academic Designee, any provi- sion, offering, or requirement at any time within the student's period or study at the University. Material changes to the content of a currently incorporated document will be noted by supplemental amendments to this rule. The University further reserves the right to require a student to withdraw from the University for cause at any time. Pursuant to Section 240.227(1), Florida Statutes, Respondent has the authority, through the President of Florida State University, to promulgate rules for the operation and administration of the University. Section 240.227(1), Florida Statutes, provides in pertinent part that each university president shall: Develop and adopt rules governing the operation and administration of the university. Such rules shall be consistent with the mission of the uni- versity and statewide rules and policies and shall assist in the development of the university in a manner which will complement the missions and activities of the other universities for the overall purpose of achieving the highest quality of education for the citizens of the state. Respondent agrees that the phrase "and all such other similar type documents which represent a means to notice" contained in subparagraph (7) of the proposed rule is vague. Respondent has filed a notice of change regarding subparagraph (7) which is now proposed to read as follows: Curriculum of the institution and academic policies and procedures of a particular schools, college, department or division, including among other academic subjects admission, registration, with- drawal, readmission, and graduation or certification requirements of particular academic programs are also currently described in various University documents available or supplied to each applicant for admission, a currently-enrolled student, or other interested parties. These publications include both the Florida State University Bulletins, or Catalogs, and informational documents such as term or semester faculty handbook, all such other similar type documents which represent a means to notice the flexible nature of those referenced in paragraph (1) of this rule. These documents reflect the current curriculum, educational plans, offerings, and requirements which and may be altered from time to time in order to carry out the purposes, mission and objectives of the University. The University reserves the right to change by rule, or order of the President or his Academic Designee, any provision, offering, or requirement at any time within the student's period of study at the University. Material changes to the content of a currently incorporated document will be noted by supplemental amendments to this rule. The University further reserves the right to require a student to withdraw from the University for cause at any time. With the exception of Respondent's admission to the vagueness of subsection (7) of the rule as originally proposed, no evidence has been presented, and accordingly no finding can be made, that the proposed rule exceeds the grant of rule-making authority contained in Section 240.227(1), Florida Statutes; or that the proposed rule enlarges, modifies or contravenes specific provisions of law implemented. The evidence presented, other than the change proposed and acknowledged by Respondent to resolve the ambiguities contained in subsection (7), does not provide a basis for a finding that proposed rule 6C2-5.0021 fails to establish adequate standards for agency decisions or vests unbridled discretion in the agency. In the absence of evidence that proposed rule 6C2-5.0021 is not supported by facts or logic, or that Respondent seeks to promulgate this rule without thought or reason, no finding of the proposed rule's infirmity on that basis may be made. The proposed rule, with consideration given the change noticed by Respondent for subparagraph (7), is not arbitrary or capricious.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since on or about September, 1980, the Petitioner has been a full-time employee of the Florida State University System, and up until the 1987-88 academic year a participant in the state of Florida health insurance program offered through the Florida State University by the Respondent, Department of Administration. During the 1987-88 academic year, the Petitioner was granted an unpaid leave of absence so that he could pursue a teaching assignment in the National Republic of China. Since the 1983-84 academic year, the Petitioner had been a participant in the Capital Health Plan Health Maintenance Organization (HMO) offered in Tallahassee, Florida under the Respondent's insurance program. Since the Petitioner could not avail himself of the benefits of the HMO in which he was enrolled in Tallahassee, Florida during the time he anticipated being in the National Republic of China, at or about the time the Petitioner commenced his unpaid leave of absence, he notified the personnel office at Florida State University that he wished to discontinue his participation in the HMO. During the 1987-88 academic year, the Petitioner did not make payments to continue his coverage during his period of leave of absence in the HMO. Immediately upon his return to employment on or about August 4, 1988, the Petitioner inquired of the personnel office at Florida State University of the steps to be taken to obtain coverage under his previous HMO for the 1988-89 academic year. The Petitioner was given certain forms to complete and return to the Florida State University personnel office. Petitioner completed and returned those forms as instructed but was informed that he could not reenroll since no open period of enrollment was available to him at that time. By letter dated July 8, 1988, Ronald G. Meyer, representing the United Faculty of Florida , FTP-FEA, corresponded with Mr. Carl Ogden, Director, Division of State Employees' Insurance, concerning a group of university faculty members who would not be on campus during the open enrollment period effective June 22, 1988 through July 15, 1988, and the need for a special open enrollment period upon them returning to their respective campus. By letter dated July 19, 1988, Mr. Ogden responded to Mr. Meyer's letter of July 8, 1988 and informed Mr. Meyer that the employees identified in his letter would be accommodated, and set out the procedure for that to be accomplished. The group of employees referred to in Mr. Meyer's letter and addressed by Mr. Ogden are those employees referred to as being "employed less than year round" and identified in Rule 22K-1.054(7), Florida Administrative Code, but does not include an employee such as Petitioner who was on an authorized leave without pay during this open enrollment period. The employees covered by the memorandum dated August 12, 1988 from Harriette A. Hudson, Manager, Insurance and Benefits, Florida State University, advising the "salaried Faculty Off Summer Payroll" of the special open enrollment period does not include employees such as Petitioner who was on an authorized leave without pay until August 4, 1988. Additionally, there was no evidence that this "open enrollment period " was designated by the Department of Administration or that the Department of Administration had authorized Florida State University to designate this open enrollment period. There was no open enrollment period available to Petitioner during August 1988. The first open enrollment period available to Petitioner after returning to work in August 1988 was in December 1988, at which time he reenrolled and became eligible for benefits on March 1, 1989. Only the Secretary of the Department of Administration has authority to determine an open enrollment period which is accomplished by numbered memorandum.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for coverage under the state of Florida Health Plan and any costs he may have incurred as a result of not being covered under the state plan. RESPECTFULLY submitted and entered this 29th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0277 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings Submitted by Petitioner 1.-2. Adopted in Findings of Fact 2 & 4, respectively. Immaterial to the conclusion reached herein. Adopted in Finding of Fact 5. 5.-6. Subordinate to facts actually found in the Recommended Order. 7. Adopted in Finding of Fact 10. Specific Rulings on Proposed Findings Submitted by Respondent 1.-6. Adopted in Findings of Fact 1 - 6, respectively. 7.-8. Subordinate to facts actually found in the Recommended Order. 9. Adopted in Finding of Fact 10, but modified. 10.-11. Immaterial to the conclusion reach herein. 12. Rejected as being a conclusion of law rather that a finding of fact. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikins, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ronald G. Meyer, Esquire MEYER, BROOKS AND COOPER, P. A. P.O. Box 1547 Tallahassee, Florida 32302 William A. Frieder, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
The Issue Whether Florida Administrative Code Rule 6A-14.0411 (“challenged rule”) is an “invalid exercise of delegated legislative authority” for the reasons alleged in the Amended Petition to Invalidate Rule (“Amended Petition”) filed by Petitioner.
Findings Of Fact The Parties agreed to the following findings of facts in the Prehearing Stipulation: Petitioner, United Faculty of Florida, is structurally a voluntary, unincorporated association. The UFF is the registered employee organization under section 447.305, and is the certified collective bargaining agent under section 447.307, for several bargaining units of public employees employed by the college district boards of trustees regulated by the challenged rule. UFF is legally obligated to represent the members of these bargaining units with respect to the determination of their wages, hours, and terms and conditions of employment pursuant to section 447.309(1). The State Board is the chief implementing and coordinating body of public education in Florida, and is required to focus on high-level policy decisions. The State Board has the authority to adopt rules to implement the provisions of law conferring duties upon it for the improvement of the state system to the extent compliant with the rulemaking authority standards set forth in the Florida Administrative Procedure Act. The Florida College System comprises the Florida College institutions, which are each governed by a local Board of Trustees. Each Board of Trustees is responsible for cost- effective policy decisions appropriate to the Florida College System institution?s mission, and the implementation of high- quality education programs within law and the rules of the State Board. Each Board of Trustees may adopt rules to supplement those prescribed by the State Board, and is specifically authorized to adopt rules and policies related to governance, personnel, conditions of employment, recruitment and selection, standards for performance and conduct, evaluation, promotion, assignment, demotion, and transfer, subject to the rulemaking authority standards set forth in the Florida Administrative Procedure Act. A “continuing contract” is a contract between a Florida college and a member of the college?s faculty which entitles the faculty member to continue in his or her respective full-time faculty position at the college without the necessity for annual nomination or reappointment. A faculty member who does not have a continuing contract has no assurance that he or she will be employed by the college in the next academic year. A continuing contract is similar to tenure, and is viewed by some as a form of tenure. A predecessor of the continuing contract rule has existed since at least 1979. The 1979 edition of the rule was amended in 2004; and the 2004 edition was not changed until April 23, 2013. There were no changes to Florida Statutes enacted since the adoption of the 2004 edition of the rule which mandated an increase from three to five years of satisfactory service for college instructors to qualify for a continuing contract; mandate that colleges develop criteria to measure students? success; mandate the creation of full-time college faculty positions that are not eligible for continuing-contract status; or mention the creation of full-time college faculty positions that are not eligible for continuing contract status. On April 27, 2012, the State Board published a Notice of Development of Rulemaking for the Rule, which scheduled a rule development workshop for June 5, 2012. The Notice stated that, “[t]he purpose of this rule development is to review the current process of issuing contracts to determine necessary changes. The effect will be a rule aligned with Florida Statutes.” On August 17, 2012, the State Board published a second Notice of Development of Rulemaking for the Rule. The second Notice stated, “[t]he purpose and effect of the rule change is to update the current process of issuing continuing contracts. The effect will be a rule aligned with Florida Statutes.” The Notice scheduled a rule-development workshop for August 31, 2012, but that workshop was cancelled. On November 13, 2012, the State Board published a third Notice of Development of Rulemaking, which included proposed language to amend the Rule. The third Notice stated: “[t]he purpose and effect of the rule change is to update the current process of issuing continuing contracts. The effect will be a rule aligned with Florida Statutes.” The State board held a rule-development workshop on November 29, 2012, at Seminole State College of Florida. On February 21, 2013, the State Board published a Notice of Proposed Rule to amend the Rule. The “Purpose and effect” section of Notice stated: The purpose of the rule development is to revise the current process and criteria for issuing continuing contracts. In addition, criteria for post-award performance reviews are added, and grounds for termination of continuing contracts are revised to include failure to meet the post-award performance criteria. The effect will be a rule aligned with Florida Statutes. The 2004 version of the rule did not have to be changed in 2013 in order to be aligned with any particular statute(s). The State Board held a rule adoption hearing on March 19, 2013, in Tallahassee, Florida. At the March 19, 2013, State Board meeting, the State Board unanimously adopted the proposed amendments to the Rule. The amended version of the rule became effective on April 23, 2013.
Recommendation Based on the foregoing, it is therefore ORDERED THAT: The Petition filed by Petitioner pursuant to section 120.56(3) seeking an administrative determination that Florida Administrative Code Rule 6A-14.0411 is an “invalid exercise of delegated legislative authority,” as defined in section 120.52(8) is hereby DISMISSED. DONE AND ORDERED this 23rd day of December, 2013, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 23rd day of December, 2013.
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Determination of the Invalidity of the existing Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, for allegedly being in violation of the provisions of Section 120.56, Florida Statutes. The Petition was filed on September 22, 1978 and the hearing was conducted on October 20, 1978. The hearing rises out of the collateral Section 120.57(1), Florida Statutes hearing in which an administrative complaint had been filed under the guise of Rule 6A-14.416, Florida Administrative Code, (in addition to certain statutory authority) against the current Petitioner, Gregory Bruce Nelson. During the course of that hearing it developed that Gregory Bruce Nelson, through his affirmative defenses to the Complaint, wished to challenge Rule 6A-14.416, Florida Administrative Code for alleged violation of Section 120.56, Florida Statutes. In response to that challenge, the Section 120.57(1) hearing, (which is reported as Lee G. Henderson, as Director of the Division of Community Colleges, Petitioner, vs. Gregory Bruce Nelson, Respondent, DOAH Case Number 78-283), has been stayed pending the outcome of the case sub judice. An order was entered by the undersigned allowing for sufficient time to file the Section 120.56, Florida Statutes challenge to Rule 6A-14.416, Florida Administrative Code and Mr. Nelson has complied with the terms and conditions of that order as to timeliness of the Petition for review pursuant to Section 120.56, Florida Statutes. Concurrently, Mr. Nelson has availed himself of the opportunity to submit a challenge to Rule 6A-14.417, Florida Administrative Code. The issue of consideration of the validity of Rules 6A-14.416 and 6A- 14.417, Florida Administrative Code, is properly joined and will be determined. Respondents moved to strike certain portions of the Petition at the commencement of the hearing and the motion was granted as to paragraphs 3(f), (g) and paragraph 4(d) and a portion of paragraph 5, beginning with the words ".... deprivation to Nelson of due process of law..." to the conclusion of said paragraph 5. In addition, the clause containing the Petitioner's prayer for relief was stricken in its language, "and directing Respondents to dismiss Case No. 78-283 with prejudice." An additional motion was made to strike the name of Lee G. Henderson, as Director of the Division of Community Colleges as a named Respondent. In view of the fact that the Director of the Division of Community Colleges is not responsible for the promulgation of rules and regulations of the State Board of Education, he is hereby deleted and stricken as a party Respondent. The Petitioner, Gregory Bruce Nelson, is an employee of the Florida Junior College, an institution governed by Chapter 230, Florida Statutes. Nelson holds a certificate issued under the terms and conditions of Rule 6A- 14.415, Florida Administrative Code. The pending Amended Petition for Revocation of Mr. Nelson's teaching certificate makes reference to the substantive basis for action as being found in Rule 6A-14.416, Florida Administrative Code, and the due process requirements for such revocation or suspension of the Petitioner's teaching certificate are ostensibly found in Rule 6A-14.417, Florida Administrative Code. The Petitioner's attack on the rules in question falls into two broad categories. The first category concerns the procedural requirements for the adoption of the rules and the second category is a contention on the part of the petitioner that the rules, as adopted, constitute invalid exercises of delegated legislative authority. The rules were adopted under the requirements of the then Administrative Procedures Act, Chapter 120, Florida Statutes. The adoption took place on December 3, 1974 and the rules became effective and operative on December 19, 1974. The controlling requirements for such adoption and effect and operation may be found in the former Administrative Procedures Act in operation in December 1974. Specifically, those provisions were Section 120.031 and Section 120.041,Florida Statutes. The Respondent in this cause met all conditions for the adoption of rules in terms of procedural requirements set forth in the aforementioned sections of the former Administrative Procedures Act. This can be determined by an examination of the Respondent's Exhibit #1, admitted into evidence which is a certified copy from the State of Florida, Department of State, of the promulgation and adoption of the rules in question on December 3, 1974, and of the filing of the rules with the Department of State on December 10, 1974, to become effective on the next day, December 19, 1974. Moreover, the rules were adopted by a public hearing which was noticed through publication in four newspapers of general circulation in the State of Florida on dates 10 to 30 days before the public hearing of December 3, 1974. Copies of the advertisements used in giving the notice may be found as the Respondent's Composite Exhibit #2, admitted into evidence. In view of the fact that the rules were adopted in accordance with the procedures set forth in the former Chapter 120, Florida Statutes, and were adopted by a public hearing properly noticed, it was not necessary to comply with the conditions of the new Administrative Procedures Act, Laws of Florida 1974, Chapter 74-310, which became effective January 1, 1975. In particular, this refers to the requirements set forth in Section 120.54, Florida Statutes, and Section 120.72, Florida Statutes, pertaining to Laws of Florida 1974, Chapter 74-310, effective January 1, 1975. Therefore, the Petitioner's claim of procedural violations as a basis for overturning Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, is not well founded. The remaining question is whether or not the rules on their face constitute invalid exercises of delegated legislative authority within the meaning of the current Section 120.56, Florida Statutes. Turning to a consideration of the Respondent's Exhibit 41, it can be seen that in adopting and promulgating 6A-14.416, Florida Administrative Code, the State Board of Education made reference to Section 230.755, Florida Statutes as their general statement of authority and to the fact that the law being implemented was Section 230.759, Florida Statutes. Those provisions use the following language: "Section 230.755, Minimum standards for community colleges.-- The state board shall prescribe minimum standards which must be met before a community college is organized, acquired or operated, and which will assure that the purposes of the community college are attained. * * * Section 230.759 Employment of community college personnel.-- Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees and subject to the rules and regulations of the state board relative to certification, tenure, leaves of absence of all types, including sabbaticals, remuneration, and such other conditions of employment as the division of community colleges deems necessary and proper; and to policies of the board of trustees not incon- sistent with law." Section 230.755, Florida Statutes, is a general statement establishing minimum standards for the organization, acquisition or operation of the various community colleges in the state. it does not create legislative authority for the relocation or suspension of the teaching certificates of those individuals who are employed in the community college system In the State of Florida. Section 230.759, Florida Statutes prescribes the method by which individuals may be hired by the community college. However, that provision is not sufficiently broad enough in its language to authorize procedures for the revocation or suspension of the teaching certificates of those personnel employed by the community college in the State of Florida. One other background item should be examined in discussing the authority for promulgating Rule 6A-14.416, Florida Administrative Code. As was noted in the course of the hearing, the published accounts of Rule 6A-14.416, Florida Administrative Code contains a reference to Section 229,053(1), Florida Statutes, which was not found in the rule as originally filed with the State of Florida, Department of State. Consequently, it may be argued that Section 229.053(1), Florida Statutes, may not be utilized in supporting the promulgation and adoption of rules 6A-14.416, Florida Statutes, because it was left out of the official Rule 6A-14.416, Florida Administrative Code, filed with the Department of State. That provision, Section 229.053, Florida Statutes, reads as follows: Section 229.053 General powers of state board.-- The state board of education is the chief policy-making and coordinating body of public education in Florida. It has the general powers to determine, adopt or prescribe such policies, rules, regulations, or standards as are required by law or as it may find necessary for the improvement of the state system of public education. Except as otherwise provided herein it may, as it shall find appropriate, delegate its general powers to the commissioner of education or the directors of the divisions of the department. " Assuming for purposes of argument that Section 229.053(1), Florida Statutes may be properly attributed to Rule 6A-14.416, Florida Administrative Code, as an attempted statement of authority for the exercise of the powers found in the subject rule, the provision Section 229.053(1), Florida Statutes, could not authorize the exercise of the powers found in that rule; which rule attempts to allow for the revocation or suspension of a teaching certificate held by a member of a staff of the community college in the State of Florida. Section 229.053(1), Florida Statutes is a general statement of the powers of the state board of education, only. No other provisions of Chapter 230, Florida Statutes, were offered in support of Rule 6A-14.416, Florida Administrative Code. Nonetheless, a review of Part II of Chapter 230, Florida Statutes, dealing with community colleges, in existance at the time that the rule was adopted and promulgated, does not reveal any provision of that Part which would allow for the adoption of rules pertaining to penalties against the holders of certificates to teach in the community colleges of the State of Florida. Consequently, Rule 6A-14.416, Florida Administrative Code is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, and is invalid in its entirety. Rule 6A-14.417, Florida Administrative Code, is a due process statement of procedure to implement the provisions of Rule 6A-14.416, Florida Administrative Code. Again, it has as its statement of authority found in the Respondent's Exhibit #1, admitted into evidence, the then existing provisions of Sections 230.755 and 230.759, Florida Statutes. That statement of authority is also found in the published compilation of rules made by the Department of State. For the reason that there exists no statement in Chapter 230, Florida Statutes, as it existed at the time that the Rule 6A-14.416, Florida Administrative Code was promulgated, that allows penalties to be placed against the certificate held by the community college teachers, there is likewise no authority to establish procedures for undertaking a consideration of probable cause to revoke or suspend and the subsequent hearing on revocation or suspension. The rationale in reaching this opinion is the same as was utilized in the consideration of Rule 6A-14.416, Florida Administrative Code. Therefore, Rule 6A-14.417, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes and the entire language of Rule 6A-14.417, Florida Administrative Code is invalid.
