                                    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
