On August 22, 2012, Administrative Law Judge John G. Van Laningham ruled that the State Board of Education’s amendments to Rule 6A-5.030, Florida Administrative Code, rendered the rule wholly invalid. The Rule purported to require school districts to make significant changes in their personnel evaluation systems. The changes would affect the evaluation criteria used to measure teacher performance and determine if a teacher is highly effective. 

The Florida Education Association and two Florida teachers challenged the Board’s amendments to the Rule on both procedural and substantive ground. In a 57-page Final Order, the ALJ specifically refrains from any ruling on the substantive challenges, instead finding that the procedural flaws in the amendment process were sufficient to invalidate the Rule.

The ALJ found several areas where the Board failed materially to follow the applicable rulemaking procedures in connection with the Rule. The Rule itself comprises three separate documents: the amended Rule Text, the amended Checklist, and the High Effect Size Indicators (“HESI”) Document. The Checklist was incorporated into the amended Rule by reference, and the HESI Document was incorporated into the Checklist by reference. The ALJ ruled that this violated the Administrative Procedure Act, which does not allow incorporated materials to contain incorporative references. Additionally, the ALJ found problematic the Board’s hosting of the referenced material on the Department of Education’s webpage instead of the Department of State’s webpage as required under applicable law and Rule.

There were other procedural deficiencies outlined by the ALJ, but the two listed above appear to be the biggest offenses that led to the ALJ ruling that the Rule is an invalid exercise of delegated legislative authority. As stated above, the ALJ did not address the substantive challenges to the amended Rule. The Board is required by statute to promulgate a Rule addressing these matters, and it is unlikely that the next Rule would be identical to the Rule at issue in this challenge. As a result, the ALJ found that any ruling on the substantive challenges to the amended Rule would amount to an impermissible advisory opinion.