Opinion
No. 1D19-2067
04-13-2022
ESCAMBIA COUNTY SCHOOL BOARD, Appellant, v. Justin WARREN and The Union of Escambia Education Staff Professionals, FEA, NEA, AFT, Appellees.
Joseph L. Hammons of The Hammons Law Firm, P.A., Pensacola, for Appellant. Ronald G. Stowers and Mark S. Levine of Levine & Stivers, LLC, Tallahassee, for Appellees.
Joseph L. Hammons of The Hammons Law Firm, P.A., Pensacola, for Appellant.
Ronald G. Stowers and Mark S. Levine of Levine & Stivers, LLC, Tallahassee, for Appellees.
Nordby, J.
Justin Warren and the Union of Escambia Staff Professionals, FEA, NEA, AFT, petitioned to challenge the validity of Escambia County School Board Rule 2.04, as amended on April 18, 2017, and March 20, 2018. In a final order, the Administrative Law Judge found both versions of Rule 2.04 were invalid exercises of delegated legislative authority under Section 120.52(8), Florida Statutes. The School Board now challenges that decision. Because we conclude that both Warren and the Union lacked standing to challenge the rule, we vacate the order on appeal and remand for dismissal.
I.
Since 2014, the Escambia County School Board has employed Justin Warren as a custodial worker. The Union is the authorized collective bargaining unit and representative of all non-instructional education support employees employed by the School Board, including Warren. In May 2017, Warren was formally charged with, among other things, grand theft in violation of Sections 812.14(1)(a) and 812.014(2)(b), Florida Statutes. The School Board suspended Warren without pay from his custodial position based on its determination that the grand theft charge was a "disqualifying offense" under Section 435.04, Florida Statutes, and Rule 2.04.
Rule 2.04 (both the 2017 and 2018 versions) potentially disqualifies school board employees for a conviction of a crime enumerated in Section 435.04, Florida Statutes.
First, Warren challenged whether the School Board had just cause to suspend him without pay while his criminal charge was pending. In December 2017, the Administrative Law Judge issued a recommended order upholding Warren's suspension without pay, and the School Board issued a final order adopting that recommended order. Subsequently, Warren appealed the School Board's final order, which this Court affirmed. See Warren v. Escambia Cnty. Sch. Bd. , 270 So. 3d 1203 (Fla. 1st DCA 2019).
Sometime after the recommend order was issued, Warren entered a plea of no contest to one felony offense, which was not considered a disqualifying offense under Rule 2.04. The School Board reinstated Warren to his custodial position but did not authorize back pay and benefits for Warren for the time he was suspended. Warren appealed the School Board's decision to deny back pay and benefits, which this Court affirmed. Warren v. Sch. Bd. of Escambia Cnty. , 319 So. 3d 629 (Fla. 1st DCA 2021).
Warren and the Union also began the underlying proceeding by filing a Petition for Administrative Determination to Challenge the Validity of Rule 2.04, as amended on April 18, 2017, and March 20, 2018. They alleged that both versions of Rule 2.04 are an invalid exercise of delegated legislative authority under Section 120.52(8), Florida Statutes, and violate express statutory law. Following a final hearing, the Administrative Law Judge issued a final order concluding that Rule 2.04 was an invalid exercise of delegated authority.
II.
At oral argument, and through a supplemental briefing order, this Court pressed the parties on whether any of the petitioners had standing to challenge Rule 2.04. Having considered the parties’ responses and the record before us, we conclude the petitioners lacked standing (and thus the Division of Administrative Hearings lacked jurisdiction).
This Court reviews the question of standing de novo. See Delgado v. Agency for Health Care Admin. , 237 So. 3d 432, 438 (Fla. 1st DCA 2018). Standing, in the administrative context, equates with subject matter jurisdiction. See Grand Dunes, Ltd. v. Walton Cnty. , 714 So. 2d 473, 475 (Fla. 1st DCA 1998). Thus, an appellate court may raise standing sua sponte even where neither party raises the issue. See Ruffin v. Kingswood E. Condo. Ass'n, Inc. , 719 So. 2d 951, 952 (Fla. 4th DCA 1998). The petitioner bears the burden of establishing standing to seek an administrative determination of the validity of a rule under the Administrative Procedure Act. K.M. v. Dep't of Health , 237 So. 3d 1084, 1087 (Fla. 3d DCA 2017).
Under the Administrative Procedure Act (APA), "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." § 120.56(1)(a), Fla. Stat. (2018). "To establish standing under the "substantially affected" test, a party must show (1) that the rule or policy will result in a real and immediate injury in fact, and (2) that the alleged interest is within the zone of interest to be protected or regulated." Jacoby v. Bd. of Med. , 917 So. 2d 358, 360 (Fla. 1st DCA 2005). To satisfy the real and immediate injury prong, "the injury must not be based on pure speculation or conjecture." Lanoue v. Dep't of Law Enf't , 751 So. 2d 94, 97 (Fla. 1st DCA 1999) (citation omitted).
As for Warren, he has not established that he will be substantially affected by either the pre- or post-amendment version of Rule 2.04. While Warren is a non-instructional employee of the school board and thus regulated by the school board rule, Warren was not subject to disqualification under the rule when he filed the petition. Warren had already been rehired in his capacity as a custodial employee of the ECSB. Warren also failed to show that back pay could reasonably result from the invalidation of the rule. Neither rule 2.04 nor the Collective Bargaining Agreement addresses back pay. Rather, as an assistant superintendent testified, the decision to deny Warren back pay stemmed from the School Board's unwritten policy and practice, not Rule 2.04:
[T]he school board policy and/or practice for awarding back pay to employees ... is not encompassed within a particular rule. Generally, if an employee is suspended without pay pending criminal charges and/or investigation, potentially, unlawful conduct unrelated to the employee's performance of their duties in his or her employment, in the event the employee is reinstated, back pay is generally not awarded.
Warren thus failed to establish that he sustained actual injury at the time of filing the petition, or that he is in imminent danger of sustaining some direct injury because of the challenged rule. Given this, he lacks standing to challenge the validity of the rule.
The Union also fell short in proving its standing. Nothing in the record reflects that a substantial number of the Union's members are substantially affected by Rule 2.04. See Fla. Home Builders Ass'n v. Dep't of Lab. and Emp. Sec. , 412 So. 2d 351, 353-54 (Fla. 1982) ("To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members ... are ‘substantially affected’ by the challenged rule."). The rule on its face does not negatively impact a substantial number of employees. And the Union failed to show that a substantial number of its members are subject to disqualification and thus potentially impacted by the rule. In fact, the record lacks a single member that has been disqualified from further employment through application of Rule 2.04 or is eligible to be disqualified from employment through application of the rule.
We acknowledge our colleague's thoughtful concurring opinion, but we respectfully decline to address the substance of that opinion here. The School Board has consistently defended Rule 2.04 within the framework of the APA. At no point during these proceedings has the School Board asserted its constitutional authority. If an appropriate case comes before us that squarely presents the matter, then this Court will give the issue careful consideration. But this is not that case.
Because the record fails to show that either Warren or the Union has standing to challenge the validity of Rule 2.04, we vacate the final order on appeal and remand with directions to dismiss the petition.
VACATED and REMANDED with directions.
Roberts, J., concurs; Tanenbaum, J., concurs in result with opinion.
Tanenbaum, J., concurring in result.
The final order of the administrative law judge ("ALJ") should be vacated, and the rule challenge should be dismissed on remand. On that, I agree. Indeed, the majority's standing analysis vis-à-vis section 120.56 is sound, and if the Administrative Procedure Act ("APA") applied here, I would join the opinion without hesitation. As I see it, though, the school-board rule at issue was adopted as an exercise of constitutionally derived—not legislatively delegated—authority, so the APA did not provide a point of entry for an administrative challenge. That left the ALJ otherwise lacking in authority to pass on the validity of the rule. The appeal should be disposed of on that jurisdictional basis, rather than because of a lack of APA standing.
This court at all events has jurisdiction to consider this appeal. The ALJ's order purports to be final agency action. See § 120.56(1)(e), Fla. Stat. (providing that an ALJ's order in a rule challenge under section 120.56(1) "shall be final agency action"). The Florida Constitution gives us "the power of direct review of administrative action, as prescribed by general law." Art. V, § 4(b)(2), Fla. Const. And the Legislature has made just such a prescription. See § 120.68(1)(a), (2), Fla. Stat. (providing entitlement to judicial review of "final agency action" by a district court of appeal).
In this state, school boards are not creatures of statute. They exist because the Florida Constitution says so. See Art. IX, § 4(a), Fla. Const. ("In each school district there shall be a school board composed of five or more members chosen by vote of the electors ...."). The constitution also gives the school boards authority to run the public schools within their district. See id. § 4 (b) ("The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein.").
This means the school boards do not depend on the Legislature for authority to act or adopt rules. Cf. Gray v. Bryant , 125 So. 2d 846, 851 (Fla. 1960) (explaining that a constitutional provision is "self-executing" if it "lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment"). The text in article nine giving authority to school boards is like the text later in the same article giving authority to the state university system's board of governors, which this court previously (and correctly) determined to be "self-executing." NAACP v. Fla. Bd. of Regents , 876 So. 2d 636, 639–40 (Fla. 1st DCA 2004) ; compare Art. IX, § 4, Fla. Const., with Art. IX, § 7(d), Fla. Const. (providing that the "board shall operate, regulate, control, and be fully responsible for the management of the whole university system"). As with the board of governors, then, the power of school boards to adopt rules regarding the operation of schools in their charge "flows directly from the Florida Constitution." NAACP , 876 So. 2d at 640. That is, even without legislation, school boards still have sufficient authority to operate and manage the public schools within their respective districts. In turn, like this court said regarding the board of governors, to the extent that a school board's "constitutional authority to promulgate the challenged rules is not dependent on any delegation from the Florida Legislature, those rules cannot be challenged under the Administrative Procedure Act." Id. ; see § 120.52(1), Fla. Stat. (subjecting an agency to the APA only to the extent it is "acting pursuant to powers other than those derived from the constitution"); cf. In re Advisory Op. of the Governor , 334 So. 2d 561, 562 (Fla. 1976) ("By its express terms the [APA] does not apply to your exercise of any power ‘derived’ from the Florida Constitution."); Phillips v. Bd. of Pardons , 487 So. 2d 1154, 1155 (Fla. 1st DCA 1986) (holding that the exercise of a power "of constitutional origin ... is not subject to the [APA]"). This broader point logically leads to the conclusion that a rule adopted by a school board in the exercise of its constitutional authority simply cannot be "an invalid exercise of delegated legislative authority" subject to challenge under section 120.56 of the APA. See § 120.52(8), Fla. Stat. (defining this "[i]nvalid exercise" as "action that goes beyond the powers, functions, and duties delegated by the Legislature").
To be clear, I am talking only about the school boards’ exercise of their quasi-legislative power derived from the constitution. This is separate and apart from the school boards’ exercise of quasi-judicial authority, which seemingly is assigned to them by the Legislature. See, e.g. , § 1012.33(6), Fla. Stat.; see also Canney v. Bd. of Pub. Instruction of Alachua Cnty. , 278 So. 2d 260, 263–64 (Fla. 1973) (discussing approvingly the legislative assignment of quasi-judicial authority to school boards).
The appellees in this case administratively challenged a rule that reflected a policy of the school board that governed the hiring, firing, and disqualification of district employees; it appeared under the heading "Recruitment and Selection of Personnel," located within the chapter titled "Human Resource Services." They claimed that the rule exceeded the authority delegated to the school board by the Legislature. The problem with the claim is that there are few functions more closely associated with the operation, control, and supervision of schools than the management of their personnel. That is, the appellees challenged a rule that was adopted as part of the school board's constitutional authority. The rule being challenged, then, did not depend on authority delegated by the Legislature; there was no legislative delegation to exceed, meaning there was no basis to challenge the school board's rule under section 120.56. That left the ALJ without statutory authority to consider the appellees’ rule challenge.
To be sure, there are several statutes that spell out the requirements to which school boards must adhere when hiring employees, including the type of background screening that must be conducted and mandatory disqualifications from certain employment. See, e.g. , §§ 1001.42(5) – (7), 1012.315, 1012.32, 1012.465, Fla. Stat.; see also generally chapter 1012, part III, Fla. Stat. Moreover, arguably, the Legislature requires that school boards adopt their rules following the procedures set out in sections 120.536(1) and 120.54, Florida Statutes. See, e.g. , §§ 1001.41(2), 1001.42(28), Fla. Stat.; but cf. § 120.81(1), Fla. Stat. School boards’ rules and policies must be wholly consistent with legislatively established, statewide education policy. At the same time, the Legislature's imposition of these statutory obligations and restrictions regarding the school boards’ exercise of their constitutional authority is not the same as a legislative delegation of authority, and a rule governing the operation of schools that does not comport with the legislative directive could not become an invalid exercise of delegated authority.
Instead, a school board rule that conflicts with a legislative enactment must give way because of the Legislature's supremacy over the school board, the latter being but a political subdivision of the State. See Sch. Bd. of Broward Cnty. v. Price , 362 So. 2d 1337, 1338 (Fla. 1978) (referencing school boards as "political subdivisions"); Thomas v. State , 614 So. 2d 468, 470 (Fla. 1993) (explaining that concurrent local legislation, which is inferior, "must not conflict with state law"); see generally Masone v. City of Aventura , 147 So. 3d 492 (Fla. 2014) (discussing conflict preemption); City of Palm Bay v. Wells Fargo Bank, N.A. , 114 So. 3d 924 (Fla. 2013) (same). The APA, however, does not provide a point of entry for a legislative preemption challenge.
Absent statutory authorization, the ALJ, an officer in the executive branch, could not adjudicate the rule challenge in a manner consistent with the constitution. To do so would be an exercise of judicial power, which the ALJ does not and cannot possess. See Art. II, § 3, Fla. Const. (expressly providing for separation of state powers); Canney , 278 So. 2d at 262 ("As a general rule administrative agencies have no general judicial powers, notwithstanding they may perform some quasi-judicial duties, and the Legislature may not authorize officers or bodies to exercise powers which are essentially judicial in their nature."); State ex rel. Watson v. Caldwell , 156 Fla. 618, 23 So. 2d 855, 857 (1945) ("It is well settled that the legislature cannot clothe an administrative agency like the Commission in this case with legislative or judicial powers."); cf. Dep't of Revenue v. Young Am. Builders , 330 So. 2d 864, 865 (Fla. 1st DCA 1976) (holding that the APA "could not and does not relegate" the determination of constitutional disputes—a judicial function—"to administrative determination"). The place for the appellees to have brought their challenge was where the judicial power resides to address it—in the trial court. Cf. § 120.73, Fla. Stat. (providing that the APA does not "divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86"); §§ 86.011, 86.021, 86.101, Fla. Stat.
The bottom line here is that the challenged rule could not have been an exercise of delegated legislative authority, and the ALJ otherwise had no authority to pass on the validity of the rule based on an alleged conflict with legislative policy. The ALJ's order, which constitutes final agency action, was contrary to law, and we have the authority to set it aside and remand the matter with an instruction to dismiss. See § 120.68(7)(d), Fla. Stat. While the majority gets there another way, I fully concur in the disposition of this administrative appeal.