State Bd. of Ed. v. Nelson, MM-203

• Decision Date: 22 May 1979
• Docket Number: No. MM-203,MM-203
• Citation: 372 So.2d 114
• Parties: STATE BOARD OF EDUCATION, Appellant, v. Gregory Bruce NELSON, Appellee.
• Court: Florida District Court of Appeals

Page 114

372 So.2d 114

STATE BOARD OF EDUCATION, Appellant, v. Gregory Bruce NELSON, Appellee.

No. MM-203.

District Court of Appeal of Florida, First District.

May 22, 1979.

Rehearing Denied July 11, 1979.

James D. Little, Tallahassee, for appellant.

Marion R. Shepard and John M. McNatt, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.

LARRY G. SMITH, Judge.

This is an appeal by the State Board of Education from an order entered by the Division of Administrative Hearings which declared invalid certain rules issued by the board providing for the revocation of a teacher's certificate held by an instructor in a community college. We find error and reverse.

At issue in this proceeding is the hearing officer's interpretation of Section 230.759, Florida Statutes, under which the State Board of Education derives its specific authority with respect to "certification" of community college personnel. The statute provides:

"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, remunerations, 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 inconsistent with law." (Section 230.759, Florida Statutes) (emphasis supplied)

The hearing officer reasoned that since the foregoing statute refers only to "employment", the power of the board with reference to "certification" relates only to the power to Issue certificates, there being no express language conferring the power to "revoke" certificates. Therefore, following this line of reasoning, he declared that the assumption of power by the board in the adoption of its rules relating to revocation exceeds the authority conferred upon the board by law. We disagree with this interpretation by the hearing examiner and adopt the reasoning and arguments of the appellant which convinces us that the power to issue certificates in this instance carries with it the power to specify the terms and conditions of their issuance, as well as the terms and conditions upon which the same may be held by the employee, or revoked by the board.

The State Board of Education is created by Article IX, Section 2, Florida Constitution. The general powers and duties of the board as set forth by statute include the following:

"(1) 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. . . .

"(2) The board has the following duties:

"(a) To adopt comprehensive educational objectives for public education;

"(e) To hold meetings, transact business, keep records, adopt a seal, And perform such other duties as may be necessary for the enforcement of all laws and regulations relating to the state system of public education; . . ." (Section 229.053, Florida Statutes) (emphasis supplied)

In addition, the legislature has conferred upon the state board the power and duty to prescribe minimum standards with respect to the operation of community colleges as follows:

"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 230.755, Florida Statutes)

We note here that we are...