FLORIDA BOARD OF GOVERNORS …

                   FLORIDA BOARD OF GOVERNORS

                     Regulation Development Procedure
                   for State University Boards of Trustees

A.   Background

     In November 2002, Florida voters passed an amendment to article IX of the
     Florida Constitution establishing a system of governance for state
     universities. Under the amendment, "a board of trustees shall administer
     each public university and a board of governors shall govern the state
     university system." A component of such governance is a procedure suitable
     for the state university setting that guides the state university board of
     trustees in their adoption of regulations. Because there is a system-wide
     benefit to having uniform procedures that are clearly laid out for university
     regulations, the Board of Governors establishes this procedure for the
     adoption of regulations by the state university boards of trustees.

B.   Definitions

     1.    Regulations. Regulations are statements of general applicability to
           guide the conduct or action of constituents or the public, adopted by
           the university boards of trustees that implement its powers and duties.
           Regulations must be consistent with law and the resolutions, and
           strategic plan of the Board of Governors. Regulations do not include
           the following:

           ·       Internal management memoranda, which are defined as
                   statements that do not affect the private interests of any person
                   and which have no application outside the state university
                   system;

           ·       Legal memoranda, opinions and guidelines;

           ·       Preparation of the state university system or a university's
                   budget;

           ·       Negotiated contractual provisions, including those reached as a
                   result of collective bargaining; and

           ·       Curriculum and other academic requirements.

     2.    Select Regulations. Select regulations are regulations that pertain to
           student tuition and fees, admissions, and articulation which require


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           approval by the Board of Governors in accordance with Section D
           hereof prior to becoming effective.

     3.    Substantially Affected Person. A substantially affected person shall be
           any natural person with an interest within the zone of interest
           protected or regulated who suffers a real and sufficiently immediate
           injury in fact as a result of the application of a regulation. A
           substantially affected person shall also mean any association with a
           majority of natural persons as members satisfying the first sentence of
           the subsection, as long as the subject matter of the regulation is within
           the association's general scope of interest and activity and the relief
           requested is of the type appropriate for a trade association to receive
           on behalf of its members.

     4.    Universities and University Board of Trustees. Universities and
           university board of trustees include the boards of trustees of each state
           university and New College.

C.   Regulation Development Procedures for University Board of Trustees

     1.    Notice

           Prior to the adoption, amendment or repeal of any regulation, except
           an emergency regulation, the university boards of trustees shall give
           notice of its intended action. This notice shall be given at least 30 days
           prior to any proposed board of trustees' adoption or repeal of the
           regulation. Notice of a proposed regulation, amendment or repeal shall
           include publication on a clearly marked area on the university's
           internet website of the following:

           ·        Summary of the proposed regulation, regulation amendment or
                    regulation repeal;

           ·        The full text of the proposed regulation, regulation amendment
                    or regulation repeal or instructions on where to view it;

           ·        Reference to the authority for the regulation;

           ·        The university official initiating the regulation, amendment or
                    repeal;

           ·        The procedure for commenting on the proposed regulation,
                    amendment or repeal with the name, electronic address,




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                   facsimile number, telephone number and street address of the
                   regulation contact person where comments can be sent.

     2.   Comments

          a.       Any person may submit written comments concerning a
                   proposed regulation, amendment, or repeal to the contact person
                   identified in the notice within 14 days after the date of notice on
                   the internet website.

          b.       In response, a university board of trustees may solicit additional
                   written comments, schedule a public hearing, withdraw or
                   modify the regulation, amendment, or repeal in whole or in part
                   after notice, or proceed with adopting the regulation.

D.   Adoption

     1.   A university board of trustees is responsible for adopting its
          regulations. Regulations, except select regulations, are adopted upon
          approval by the university boards of trustees. The boards of trustees
          will provide the Board of Governors with regulations adopted by the
          board of trustees. The Board of Governors will notify a board of
          trustees of the need to revise a regulation that is inconsistent with
          established resolutions, regulations, or the strategic plan of the Board
          of Governors.

     2.   Select regulations, amendments or repeals filed by the university
          boards of trustees do not become effective until the Board of Governors
          has approved them pursuant to this procedure. After the university
          board of trustees has voted to adopt a select regulation, amendment or
          repeal, and the board of trustees has provided a copy to the Board of
          Governors, the select regulation shall become effective upon the Board
          of Governors' approval or 60 days after being provided to the Board of
          Governors, whichever is sooner, unless within the 60 days the
          regulation has been disapproved by the Board of Governors. The Board
          of Governors may disapprove a university regulation on the following
          grounds:

          ·     A university board of trustees materially failed to follow regulation
                development procedures set forth herein;

          ·     The regulation does not comply with the law or contravenes the
                policies of the Board of Governors as specified in resolution,
                regulation, or strategic plan;



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              ·   The regulation vests unbridled discretion in the university board of
                  trustees; or

              ·   The regulation is arbitrary or capricious.

E.   Filing

     1.       Place of Filing, Record and Effective Date.
              When adopted, the regulation, amendment or repeal shall be filed with
              the state university president or designee and posted on the internet
              website. When a regulation, amendment, or repeal is filed,
              certification of compliance with this procedure must be included, along
              with the record including all notices, written comments, written
              summaries of hearings, and responses submitted pursuant to this
              procedure. The regulation, amendment or repeal shall become
              effective on the date of filing unless the effective date is stated
              otherwise.

     2.       Accessibility to Regulations.
              Regulations adopted by a university board of trustees will be easily
              accessible through a university's internet website. The website shall
              permit the public to do at least the following:

              ·      Search notices by type, publication date, or regulation number;

              ·      Search a permanent database that archives all notices published
                     on the website;

              ·      Subscribe to an automated e-mail notification of selected notice
                     types; and

              ·      Search by subject matter or key word current regulations.

F.   Due Process

     In implementing regulations that affect the rights of individuals, a university
     board of trustees will honor established due process principles to ensure that
     applicable due process rights are afforded to affected individuals.




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G.   Monitoring Regulations

     A university board of trustees will monitor the effects of new regulations and
     periodically will review existing regulations to ensure they are current and
     consistent.

H.   Regulation Challenges

     1.    Challenging a Board of Trustees Regulation.

           A substantially affected person may seek a determination of the
           invalidity of an existing regulation any time after the adoption of the
           regulation. The petition seeking such determination must state with
           particularity the grounds for alleging that the regulation is an invalid
           exercise of authority, and a sufficient explanation of the facts showing
           that the person challenging a regulation is substantially affected by it.
           A regulation is an invalid exercise of authority only if one of the
           following applies:

           ·      A university board of trustees materially failed to follow
                  regulation development procedures set forth herein;

           ·      The regulation does not comply with the law or contravenes the
                  policies of the Board of Governors as specified in resolution,
                  regulation, or strategic plan;

           ·      The regulation vests unbridled discretion in the university board
                  of trustees; or

           ·      The regulation is arbitrary or capricious.


           a.     A petition challenging a state university regulation shall be filed
                  with a university board of trustees, or its designee as indicated
                  on its website. If the filed petition is not of sufficient specificity
                  or does not state sufficient grounds to challenge a regulation, the
                  petition may be dismissed, with or without leave to amend. If
                  the petition is of sufficient specificity and states sufficient
                  grounds to challenge a regulation, within 15 days after receiving
                  the petition, if there are any disputed issues or material facts,
                  the university board of trustees shall assign a hearing officer.
                  The hearing officer shall conduct a hearing within 60 days
                  thereafter unless the petition is withdrawn or a continuance is
                  granted by agreement of the parties for good cause shown. If



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           there are no disputed issues of material fact, the matter shall be
           referred to a university board of trustees or to its designee for
           resolution.

     b.    The failure of a state university to follow the regulation
           development procedures set forth in this procedure shall be
           presumed to be material; however, the state university may
           rebut this presumption by showing that the substantial
           interests of the petitioner and the fairness of the proceedings
           have not been impaired.

     c.    Hearings shall be de novo in nature and shall be conducted
           pursuant to the Model Rules of Procedure, Chapter 28-106,
           except if there is any conflict, this procedure controls. The
           petitioner must demonstrate by clear and convincing evidence
           that a policy is invalid. The petitioner shall be adverse to the
           state university. Other substantially affected persons may join
           the proceedings as interveners on appropriate terms which shall
           not unduly delay the proceedings.

     d.    Within 30 days after the hearing, the hearing officer shall issue
           a recommended order directed to the university board of
           trustees, which shall timely issue a final decision whether all or
           part of a regulation is invalid. If a regulation is declared invalid
           in whole or in part notice of the decision shall be given on its
           internet website.

2.   Challenges to Unpromulgated University Regulations.

     a.    A petition challenging a statement of general applicability to
           guide the conduct or action of constituents or the public that has
           not been promulgated as a regulation shall be filed with the
           university board of trustees as indicated on its internet website.
           The petition shall include the text of the statement or a
           description of the statement and shall state with particularity
           facts sufficient to show that the statement constitutes a
           regulation as defined in this procedure and that the university
           has not adopted the statement by these regulation development
           procedures.

     b.    Within 15 days after receipt of the petition, the university board
           of trustees shall assign a hearing officer who shall conduct a
           hearing in compliance with paragraph D1(c) within 30 days
           thereafter, unless the petition is withdrawn or a continuance is



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                granted by agreement of the parties for good cause shown. If a
                hearing is held and the petitioner proves the allegations of the
                petition, the university board of trustees shall have the burden
                of proving that regulation development is not feasible.
                Regulation development shall be presumed feasible unless:

                ·     The university has not had sufficient time to acquire the
                      knowledge and experience reasonably necessary to
                      address a statement by regulation development; or

                ·     Related matters are not sufficiently resolved to enable the
                      university to address a statement by regulation
                      development.

          c.    Within 30 days after the hearing, the hearing officer shall issue
                a recommended order directed to the university board of
                trustees, which may determine that all or part of a statement
                should have been promulgated as a regulation under this
                procedure. The decision shall be published on the university
                internet website and all reliance on the statement or any
                substantially similar statement as a basis for action shall be
                discontinued.

          d.    If, prior to a recommended order of a hearing officer, the
                university board of trustees begins regulation development
                under this procedure to address the statement, a presumption is
                created that the board of trustees is acting expeditiously and in
                good faith to adopt regulation(s) that address the statement, and
                reliance upon the statement or any substantially similar
                statement as a basis for action shall be permitted.

          e.    If the university board of trustees fails to approve regulations
                that address the statement within 180 days after publishing
                notice of proposed regulation(s), for the purposes of the
                regulation challenge proceeding, a presumption is created that
                the university is not acting expeditiously and in good faith to
                adopt regulation, and the case should proceed to a final hearing.

I.   Emergency Regulations

     1.   Adoption.

          An emergency regulation may be adopted if there is an immediate
          danger to the public health, safety, or welfare under a procedure which



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           is fair under the circumstances. The action taken must be only that
           necessary to protect the public interest in the emergency. At the time
           of, or prior to the state university's action, it must publish on its
           internet website the specific facts and reasons for concluding that the
           procedure is fair under the circumstances. An emergency regulation
           shall not be effective for a period longer than 90 days. However, the
           state university may take identical action under the regular regulation
           development procedure set forth herein.

     2.    Challenges.

           Within 7 days after receiving a petition from a substantially affected
           person challenging an emergency regulation, if the petition complies
           with the requirements of paragraph H1(a), the university board of
           trustees shall assign a hearing officer. The hearing officer shall
           conduct a hearing in compliance with paragraph H1(c) within 20 days,
           unless the petition is withdrawn. Within 10 days of the hearing, the
           hearing officer shall issue a recommended order directed to the
           university board of trustees, which shall timely issue a final decision.

J.   Appeal

     Final decisions of the university boards of trustees may be challenged in a
     court of law pursuant to certiorari review under Florida Rule of Appellate
     Procedure 9.030(b)(2) only after exhausting the available administrative
     remedies under this procedure. Copies of Notices of Appeal shall be provided
     to the Board of Governors promptly upon service by the appellant.

K.   Designee

     Throughout this procedure, when the university board of trustees is
     referenced, the university board of trustees may name a designee or
     designees for any action, except that the university board of trustees may not
     delegate adoption of their regulations under Section F.

L.   Continuing Validity of Rules and Effective Date

     These procedures are effective on the date approved and will apply to any
     regulations finally adopted on or after that date. All university rules
     previously adopted under the Administrative Procedures Act at the time this
     procedure is approved by the Board of Governors shall be considered as
     validly adopted regulations under this procedure. Such rules are subject to
     Regulation Challenges as provided in Section H of this procedure. In
     addition, such rules may be amended or repealed by using the processes set



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      out in this procedure. All university rules which are subject to a pending rule
      challenge under the Administrative Procedures Act, at the time this
      procedure is approved by the Board of Governors, shall continue to be subject
      to the Administrative Procedures Act until final resolution.


Approved by the Florida Board of Governors this 21st day of July, 2005.




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