IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
UNITED FACULTY OF NOT FINAL UNTIL TIME EXPIRES TO
FLORIDA, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D14-188
v.
FLORIDA STATE BOARD OF
EDUCATION,
Appellee.
_____________________________/
Opinion filed February 16, 2015.
An appeal from Division of Administrative Hearings. June C. McKinney,
Administrative Law Judge
Thomas W. Brooks and Anthony D. Demma of Meyer, Brooks, Demma and
Blohm, P.A., Tallahassee, for Appellant.
Matthew Carson, General Counsel, and David L. Jordan, Assistant General
Counsel, Tallahassee, for Appellee.
WETHERELL, J.
United Faculty of Florida (UFF) appeals the final administrative order
dismissing its petition challenging the validity of Florida Administrative Code
Rule 6A-14.0411 (the challenged rule) as amended by the State Board of
Education (Board) in April 2013. UFF raises two issues. First, UFF contends that
the administrative law judge (ALJ) erred in concluding that the challenged rule is
not an invalid exercise of delegated legislative authority under section
120.52(8)(b), Florida Statutes (2012).1 Second, UFF contends that the “statutory
framework” pursuant to which the challenged rule was adopted violates the
nondelegation doctrine embodied in article II, section 3, of the Florida
Constitution. We find no merit in either claim. Accordingly, we affirm the final
order.
The challenged rule establishes standards and criteria for “continuing
contracts” with full-time faculty members employed by Florida College System
institutions. Continuing contracts, which are viewed as a form of tenure, have
been prescribed by Board rule in some form since at least 1979, and the prior
version of the challenged rule had been in effect since 2004. The challenged rule
substantially revises the prior version of the rule and, among other things, increases
the period of satisfactory service necessary for an employee to obtain a continuing
contract from three years to five years; prescribes specific performance criteria to
be used in determining whether to award or terminate a continuing contract;
requires periodic performance reviews of employees working under continuing
1
UFF does not challenge the ALJ’s ruling that the challenged rule is not invalid
under section 120.52(8)(c) or (8)(d).
2
contracts; requires each college to develop criteria to measure “student success”
and requires those criteria to be used in the employee’s performance review; and
authorizes each college to establish positions that are eligible for multiple-year
contracts rather than continuing contracts. UFF contends that the Board lacked the
requisite statutory authority to adopt the challenged rule.
The statutes cited as the “rulemaking authority” for the challenged rule are
sections 1001.02(1) and (6), 1012.83, and 1012.855. The ALJ concluded that
sections 1012.83 and 1012.855 do not provide the requisite authority for the
challenged rule, but that “section 1001.02(6) provides rulemaking authority for the
challenged rule by meeting the ‘specific grant of authority’ test set forth in
[Southwest Florida Water Management District v.] Save the Manatee [Club, Inc.,
773 So. 2d 594 (Fla. 1st DCA 2000)].” We agree with the ALJ on the latter point,
but not the former.
A rule is invalid under section 120.52(8)(b) if the agency “exceed[s] its grant
of rulemaking authority.” A grant of rulemaking authority is the “statutory
language that explicitly authorizes or requires an agency to adopt [a rule].” §
120.52(17), Fla. Stat. The scope of an agency’s rulemaking authority is
constrained by section 120.536(1) and the so-called “flush-left paragraph” in
section 120.52(8), which provide that an agency may only adopt rules to
“implement or interpret the specific powers and duties granted by the [agency’s]
3
enabling statute”; that an agency may not adopt rules to “implement statutory
provisions setting forth general legislative intent or policy” or simply because the
rule “is reasonably related to the purpose of the enabling legislation and is not
arbitrary and capricious or is within the agency’s class of powers and duties”; and
that “[s]tatutory language granting rulemaking authority or generally describing the
powers and functions of an agency shall be construed to extend no further than
implementing or interpreting the specific powers and duties conferred by the
enabling statute.”
Section 120.536(1) and the flush-left paragraph in section 120.52(8) require
a close examination of the statutes cited by the agency as authority for the rule at
issue to determine whether those statutes explicitly grant the agency authority to
adopt the rule. As this court famously stated in Save the Manatee Club, the
question is “whether the statute contains a specific grant of legislative authority for
the rule, not whether the grant of authority is specific enough. Either the enabling
statute authorizes the rule at issue or it does not.” 773 So. 2d at 599 (emphasis in
original). Accord Bd. of Trs. of the Internal Improvement Trust Fund v. Day
Cruise Ass’n, Inc., 794 So. 2d 696, 700 (Fla. 1st DCA 2001) (“[A]gencies have
rulemaking authority only where the legislature has enacted a specific statute, and
authorized the agency to implement it . . . .”); see also Fla. Elections Comm’n v.
Blair, 52 So. 3d 9, 12-13 (Fla. 1st DCA 2010) (explaining that the definition of
4
“rulemaking authority” in section 120.52(17) does not further restrict agency
rulemaking authority beyond what is contained in the flush-left paragraph in
section 120.52(8), as construed by this court in Save the Manatee Club and
subsequent cases).
Here, based upon our de novo review, 2 we conclude that the statutes cited as
rulemaking authority for the challenged rule contain the necessary “specific grant
of legislative authority” for the Board to adopt a rule establishing standards and
criteria for tenure-like contracts with college faculty. Section 1001.02(6)
specifically directs the Board to adopt rules establishing “minimum standards,
definitions and guidelines” for, among other things, “personnel” and
“contracting.” Section 1012.83(1) specifically provides that each college
instructional employee “shall be entitled to a contract as provided by rules of the
[Board]” and section 1012.855(1)(a) specifically provides that the employment of
college personnel shall be “subject to . . . the rules of the [Board] relative to
certification, tenure, leaves of absences of all types, including sabbaticals,
remuneration, and such other conditions of employment as the [Board] deems
necessary and proper.” Although these latter two statutes are not phrased as
affirmative directives to the Board, they clearly indicate that the Legislature
intended that the Board adopt rules concerning employment contracts for college
2
See Save the Manatee Club, 773 So. 2d at 597 (“Because the case involves a pure
issue of law, we review the order by the de novo standard of review.”).
5
instructional personnel and that such rules address “tenure” and other terms and
conditions of employment. See State Bd. of Educ. v. Nelson, 372 So. 2d 114 (Fla.
1st DCA 1979) (construing the statutory language now codified in section
1012.855(1)(a) as a grant of rulemaking authority to the Board). Contrary to the
position advocated by the dissent, it is not necessary under Save the Manatee Club
and its progeny for the statutes to delineate every aspect of tenure that the Board is
authorized to address by rule; 3 instead, all that is necessary is for the statutes to
specifically authorize the Board to adopt rules for college faculty contracts and
tenure, which the statutes clearly do.
The statutes cited above, collectively and in conjunction with section
1001.02(1), 4 provide the Board the necessary rulemaking authority to adopt the
challenged rule. Accordingly, although we do not fully agree with the ALJ’s
reasoning, we agree with (and affirm) her ruling that the challenged rule is not an
invalid exercise of delegated legislative authority under section 120.52(8)(b). See
generally Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45
3
If this was the standard, it is questionable whether the Board would have the
authority to adopt any rule providing for continuing contracts. This result would
be unfortunate – and, presumably, unwanted by UFF – because continuing
contracts have been used in Florida for decades to provide job security for college
faculty.
4
This statute, which authorizes the Board to “adopt rules . . . to implement the
provisions of law conferring duties upon it for the improvement of the state system
of K-20 public education except for the State University System,” is a general
grant of rulemaking authority that is insufficient by itself to provide the requisite
authority for the challenged rule. See §§ 120.52(8), 120.536(1), Fla. Stat.
6
(Fla. 1999) (discussing the “tipsy coachman” doctrine pursuant to which the
appellate court is obligated to affirm the order on appeal if the lower tribunal
reached the correct result, even its reasoning was erroneous).
Turning to UFF’s claim that the “statutory framework” pursuant to which
the challenged rule was adopted violates the nondelegation doctrine, we begin with
the seminal case of Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1978), in
which the Court explained that the nondelegation doctrine requires that:
fundamental and primary policy decisions shall be made
by members of the legislature who are elected to perform
those tasks, and administration of legislative programs
must be pursuant to some minimal standards and
guidelines ascertainable by reference to the enactment
establishing the program.
Id. at 925; see also Brown v. Apalachee Reg’l Planning Council, 560 So. 2d 782,
784 (Fla. 1990) (explaining that the nondelegation doctrine “arises from article II,
section 3, of the Florida Constitution” and “essentially prohibits the legislature
from delegating to another branch the power to enact a law or to declare what the
law shall be”) (internal quotations omitted). This standard does not require statutes
to contain a particular level of detail so long as the statutes contain sufficient
standards and guidelines to enable the agency and the courts to determine whether
the agency is carrying out the Legislature’s intent. See Dep’t of State v. Martin,
916 So. 2d 763, 773 (Fla. 2005) (“In Askew we recognized that the specificity of
standards and guidelines may depend on the subject matter dealt with and the
7
degree of difficulty involved in articulating finite standards. However, we have
also made clear that even where a general approach would be more practical than a
detailed scheme of legislation, enactments may not be drafted in terms so general
and unrestrictive that administrators are left without standards for the guidance of
their official acts.”) (internal quotations omitted).
Here, the “statutory framework” pursuant to which the challenged rule was
adopted reflects that the Legislature made the fundamental policy decision that
college instructional employees are entitled to contracts, subject to terms and
conditions established by the Board concerning “tenure” and other matters. See §§
1012.83(1), 1012.855(1)(a), Fla. Stat. And, contrary to UFF’s argument, the
“statutory framework” contains sufficient standards and guidelines to satisfy the
nondelegation doctrine.
For example, in section 1001.02(6), the Legislature mandated that the
minimum standards for personnel and contracting adopted by the Board must
“ensure [1] the quality of education, [2] coordination among the Florida College
System institutions and state universities, and [3] efficient progress toward
accomplishing the Florida College System mission [in section 1004.65].” Section
1004.65, in turn, provides that the college system’s mission is to “provide high-
quality . . . education,” “foster a climate of excellence,” and provide student
8
assessment and other services to “ensure student success.” These (and other5)
statutes individually and collectively provide sufficient standards and guidelines
against which the rules adopted by the Board can be evaluated for compliance with
legislative intent.
We recognize that in the K-12 context, the standards and criteria for
contracts with instructional employees, including continuing contracts, are
established by statute along with the standards and procedures for evaluating the
performance of those employees. See §§ 1012.33 - 1012.3401, Fla. Stat. That,
however, has no bearing on the validity of the “statutory framework” at issue in
this case. The fact that the Legislature has chosen to enact more specific statutes in
one context does not mean that it cannot enact more general statutes in another
context (particularly one as complex as higher education employment) so long as
the more general statutes provide sufficient standards and guidelines to comply
with the nondelegation doctrine.
Finally, we have not overlooked UFF’s argument that the challenged rule
effectuates significant policy changes that should have come from the Legislature
in the first instance. This argument is not persuasive because even though the
applicable statutes have not been amended since the adoption of the prior version
5
See, e.g., § 1000.02, Fla. Stat. (establishing the legislative policies and guiding
principles for Florida’s K-20 education system), § 1000.03(4)-(5), Fla. Stat.
(establishing the mission and priorities of Florida’s K-20 education system).
9
of the challenged rule in 2004, this court explained in Agency for Health Care
Administration v. Florida Coalition of Professional Laboratory Organizations, 718
So. 2d 869 (Fla. 1st DCA 1998), that a statutory amendment is not required for an
agency to substantively change its rules where, as here, the Legislature has clearly
delegated the agency authority to adopt rules on the issue and the agency complies
with the rulemaking process. Of course, if the Legislature believes that the new
standards and criteria for continuing contracts for college faculty that are embodied
in the challenged rule are too onerous or do not comport with its intent, it is free to
legislate accordingly.
In sum, for the reasons stated above, we affirm the final order dismissing
UFF’s petition challenging the validity of rule 6A-14.0411 and we reject UFF’s
contention that the “statutory framework” pursuant to which the rule was adopted
violates the nondelegation doctrine.
AFFIRMED.
MAKAR, J., CONCURS. CLARK, J., DISSENTS WITH OPINION.
10
CLARK, J., dissenting.
I respectfully dissent.
Rule 6A-14.0411, Florida Administrative Code, is an invalid exercise of
legislative power. The rule constitutes a comprehensive and wide-ranging policy
creating continuing contracts (tenure) for some faculty—as designated in the
rule—at State colleges. The parties agree that continuing contracts are the
equivalent of tenure. The enabling legislation does not explicitly authorize the
State Board of Education (SBE) to determine by rule 1) whether certain faculty
members at State colleges and universities should be issued continuing contracts
(the equivalent of tenure); 2) whether certain faculty members may not be issued
continuing contracts; 3) the eligibility requirements, qualifications and
performance criteria for continuing contracts; 4) the procedures and processes by
which continuing contracts can be earned, retained, or terminated; 5) which
exemptions are appropriate for transitioning continuing contracts; or 6) the
maximum length or duration of continuing contracts. The lack of explicit
legislative authorization for the adoption of this comprehensive rule is fatal to its
validity.
Sections 1012.83 and 1012.855, Florida Statutes, do not provide authority
for the adoption of rule 6A-14.0411. The rule was not properly adopted under a
11
grant of authority in section 1001.02(6), as the enabling statute lacks the specific
authority for the adopted rule.
The grant of authority in section 1001.02(6) is a general grant of authority
for the SBE to “prescribe minimum standards, definitions and guidelines for
Florida College System institutions that will ensure the quality of education,
coordination among the Florida College System institutions and state universities,
and efficient progress toward accomplishing the Florida College System mission.
At a minimum the rule must address (a) personnel, and (b) contracting.” Section
1001.02(6), sets forth what subjects the SBE is to address in its rulemaking, but
does not explicitly authorize the SBE to determine qualifications, eligibility,
criteria, processes, limitations or duration for continuing contracts.
This Court has determined that “the authority to adopt an administrative rule
must be based on an explicit power or duty identified in the enabling statute.” Sw.
Water Mgmt. Dist. v. Save the Manatee Club, 773 So. 2d 594, 599 (Fla. 1st DCA
2000). Accordingly, a general grant of authority to address a subject does not
provide valid exercise of delegated legislative authority.
Section 120.52(8) provides:
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. An agency may adopt only rules that implement or interpret
the specific powers and duties granted by the enabling statute. No
agency shall have authority to adopt a rule only because it is reasonably
12
related to the purpose of the enabling legislation and is not arbitrary
and capricious or is within the agency's class of powers and duties, nor
shall an agency have the authority to implement statutory provisions
setting forth general legislative intent or policy. Statutory language
granting rulemaking authority or generally describing the powers and
functions of an agency shall be construed to extend no further than
implementing or interpreting the specific powers and duties conferred
by the enabling statute.
Although this rule is related to the subject of the enabling legislation—
personnel and contracting—that is insufficient. In amending section 120.52(8) in
1999, the legislature specifically rejected the notion that rulemaking authority is
authorized simply because the rule relates to the subject of the legislation. Section
120.52(8) provides that “an agency may adopt only rules that implement or
interpret the specific powers and duties granted by the enabling statute.” See Save
the Manatee Club, 773 So. 2d at 598.
I recognize this Court need not be concerned that the enabling statute is
specific enough. “Either the enabling statute authorizes the rule at issue or it does
not.” Id. at 599. But this Court should be deeply concerned that the enabling
statute is not at all specific about the SBE developing broad policy for continuing
contracts for State university and college faculty. In fact, neither section
1001.02(6) nor any of the statutes referenced in the majority opinion—even when
read together—grant any such authority.
13
Because the enabling legislation is not specific and does not explicitly allow
the SBE to create public policy on tenure, I would conclude the rule was adopted
without appropriate legislative authority.
I would reverse and declare rule 6A-14.0411 invalid.
14