United Faculty of Fla. v. Fla. State Bd. of Educ., 1D14–188.

• Citation: 157 So.3d 514
• Decision Date: 16 February 2015
• Docket Number: No. 1D14–188.,1D14–188.
• Parties: UNITED FACULTY OF FLORIDA, Appellant, v. FLORIDA STATE BOARD OF EDUCATION, Appellee.
• Court: Court of Appeal of Florida (US)

157 So.3d 514

UNITED FACULTY OF FLORIDA, Appellant
v.
FLORIDA STATE BOARD OF EDUCATION, Appellee.

No. 1D14–188.

District Court of Appeal of Florida, First District.

Feb. 16, 2015.

157 So.3d 515

Thomas W. Brooks and Anthony D. Demma of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, for Appellant.

157 So.3d 516

Matthew Carson, General Counsel, and David L. Jordan, Assistant General Counsel, Tallahassee, for Appellee.

Opinion

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 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] enabling statute”; that an agency may not adopt rules

157 So.3d 517

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 “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 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...