HB 1001

1	A bill to be entitled
2	An act relating to governance of the State University
3	System; providing definitions; specifying the
4	constitutional duties of the Board of Governors of the
5	State University System under s. 7, Art. IX of the State
6	Constitution; specifying the constitutional duties of the
7	Legislature; providing legislative intent; providing an
8	effective date.
9
10	WHEREAS, in 1999, the Florida Legislature, in its efforts
11	to provide for a uniform, efficient, safe, secure, and high
12	quality system of free public schools enacted chapter 99-398,
13	Laws of Florida, the A+ Plan for transforming Florida schools,
14	which provided a school grading system and strengthened
15	Florida's education accountability system; and, in 2000, the
16	Florida Legislature enacted chapter 2000-321, Laws of Florida,
17	the Florida Education Governance Reorganization Act of 2000,
18	which restructured the state's public education system to create
19	a seamless K-20 system and repealed the Florida Board of
20	Regents, an entity previously established by the Legislature to
21	govern the administration of the State University System, and
22	WHEREAS, in 2000, the Legislature consolidated the
23	administration of Florida's institutions of higher education
24	with grades K through 12 in the Florida Board of Education
25	(later the State Board of Education) and the Commissioner of
26	Education, and
27	WHEREAS, in 2002, Florida voters amended the State
28	Constitution to create the Board of Governors to administer the
29	management of the State University System, and
30	WHEREAS, the ballot summary stated that the Board of
31	Governors would "be responsible for the coordinated and
32	accountable operation of the whole university system" but did
33	not mention any limitation of legislative powers, and
34	WHEREAS, in its review of the ballot title and summary to
35	the initiative proposal creating the Board of Governors, the
36	Florida Supreme Court found that the amendment would authorize
37	"the statewide board of governors to 'operate, regulate,
38	control, and be fully responsible for the management of the
39	whole university system' which is currently the legislative
40	responsibility and duty of the Florida Board of Education, an
41	organization located within the cabinet system of the executive
42	branch," [Advisory Opinion to the Attorney General Re Local
43	Trustees, 819 So.2d 725, 729 (Fla. 2002)], thereby equating the
44	powers of the Board of Governors to the powers that had
45	previously been allotted by the Legislature to the Board of
46	Education, and
47	WHEREAS, the Florida Supreme Court found that the ballot
48	title and summary for the proposed amendment plainly and
49	unequivocally expressed its chief purpose and that this purpose
50	"does not substantially affect or alter any provision in the
51	State Constitution" [Id. at 732], and
52	WHEREAS, the Court's advisory opinion indicates that the
53	Court interpreted "the plain unequivocal language" of the
54	proposal's ballot summary as not making fundamental changes
55	redistributing legislative power to an entity within another
56	branch, which would alter the balance of governmental powers,
57	and
58	WHEREAS, since 1968 and continuing through today, section 1
59	of Article IX of the State Constitution provides that
60	"[a]dequate provision shall be made by law for ... the
61	establishment, maintenance, and operation of institutions of
62	higher learning ...," and
63	WHEREAS, as of November 2002, the Board of Governors is
64	charged by section 7 of Article IX of the State Constitution
65	with the responsibility to "operate, regulate, control, and be
66	fully responsible for the management of the whole university
67	system," and
68	WHEREAS, the canons of Florida statutory construction
69	require that laws on the same subject are to be construed "in
70	harmony with one another" so as not to render any part
71	meaningless based upon the presumption that the people would not
72	have adopted useless constitutional law [See, e.g., Unruh v.
73	State, 669 So.2d 242 (Fla. 1996); see, also, State ex rel. McKay
74	v. Keller, 191 So. 542 (Fla. 1939) (holding that principles
75	governing the construction of statutes are generally applicable
76	as well to the construction of constitutions)], and
77	WHEREAS, in accordance with these dictates, it is the
78	Legislature's intention herein to harmonize and give meaningful
79	effect to both sections 1 and 7 of Article IX of the State
80	Constitution, and
81	WHEREAS, the First District Court has held (1) that the
82	Board of Governors is the public employer for state university
83	employees or at least is entitled to name the public employer
84	for them [Fla. Pub. Emp. Council 79 v. PERC, 871 So.2d 270 (Fla.
85	1st DCA 2004)]; and (2) that the Board of Governors controls the
86	admissions policies of state universities [NAACP v. Fla. Bd. Of
87	Regents, 876 So.2d 636 (Fla. 1st DCA 2004)]; and, in dicta,
88	without considering existing portions of Article IX,
89	specifically those in section 1, and without any sufficiently
90	interested parties raising alternative arguments, the First
91	District Court has suggested that the Board of Governors' power
92	is subject only to the Legislature's authority to appropriate
93	funds, confirm appointed members of the board, and set staggered
94	terms for the appointed members, and
95	WHEREAS, such a view renders meaningless section 1 of
96	Article IX and grants greater powers to the Board of Governors
97	than the State Constitution dictates, while stripping the
98	Legislature of powers in a manner not intended by Floridians,
99	and
100	WHEREAS, litigants in Floridians for Constitutional
101	Integrity, Inc., et al. v. State Board of Education and Board of
102	Governors, Case No. 04-CA-3040, filed in the Second Judicial
103	Circuit in and for Leon County, Florida, have alleged that the
104	2002 amendment so altered the State Constitution that the
105	Legislature cannot enact laws controlling the policy or
106	direction of the State University System, that the Board of
107	Governors is not subject to legislative control, that the Board
108	of Governors controls such public funds as tuition and student
109	fees and federal contracts and grants, and that all authority
110	over the State University System was transferred by the 2002
111	amendment to the Board of Governors subject only to legislative
112	appropriation authority of only the state's general revenues,
113	and
114	WHEREAS, on the contrary, the Florida Supreme Court stated
115	that while the 2002 amendment interacts with section 1 of
116	Article IX, "it does not substantially affect or change" it
117	[Advisory Opinion, Id. at 730], and
118	WHEREAS, the allegations of the plaintiffs in Floridians
119	for Constitutional Integrity, Inc., cannot be reconciled with
120	the Court's holding in Advisory Opinion to the Attorney General,
121	infra, because the essence of legislative power is the exercise
122	of policy-related discretion over the content of law and were
123	the 2002 amendment construed to have given all lawmaking
124	authority except for the authority to appropriate funds to the
125	Board of Governors that certainly would have effectuated a very
126	significant and substantial alteration to multiple provisions in
127	the State Constitution, and
128	WHEREAS, section 7 of Article IX of the State Constitution
129	does not expressly provide for the Board of Governors to
130	exercise all legislative powers save the power to appropriate,
131	and
132	WHEREAS, it is the duty of the Florida Legislature to
133	uphold section 3 of Article II of the State Constitution and
134	safeguard the powers of one branch of government from
135	encroachments from entities of the other branches, and
136	WHEREAS, the Legislature has found that the powers of the
137	Legislature in section 1 of Article IX of the State Constitution
138	and the powers of the Board of Governors in section 7 of Article
139	IX of the State Constitution must and can be defined in harmony
140	to give each entity its full measure of constitutional
141	responsibility while fitting together in the balanced symmetry
142	envisioned by the voters of Florida who expressed their desire
143	for a Board of Regents type of executive oversight of the State
144	University System, NOW, THEREFORE,
145
146	Be It Enacted by the Legislature of the State of Florida:
147
148	Section 1.  Responsibility for the State University System
149	under s. 7, Art. IX of the State Constitution; legislative
150	findings and intent.--
151	(1)  LEGISLATIVE FINDINGS.--
152	(a)  Definitions.--For purposes of this act, the term:
153	1.  "Board of Governors" as it relates to the State
154	University System and as used in s. 7, Art. IX of the State
155	Constitution and Title XLVIII and other sections of the Florida
156	Statutes is the Board of Governors of the State University
157	System which belongs to and is part of the executive branch of
158	state government.
159	2.  "Institutions of higher learning" as used in the State
160	Constitution and the Florida Statutes includes publicly funded
161	state universities.
162	3.  "Public officer" as used in the Florida Statutes
163	includes members of the Board of Governors.
164	4.  "State university" or "state universities" as used in
165	the State Constitution and the Florida Statutes are agencies of
166	the state which belong to and are part of the executive branch
167	of state government. This definition of state universities as
168	state agencies is only for the purposes of the delineation of
169	constitutional lines of authority. Statutory exemptions for
170	state universities from statutory provisions relating to state
171	agencies that are in effect on the effective date of this act
172	remain in effect and are not repealed by virtue of this
173	definition of state universities.
174	(b)  Constitutional duties of the Board of Governors of the
175	State University System.--In accordance with s. 7, Art. IX of
176	the State Constitution, the Board of Governors of the State
177	University System has the duty to operate, regulate, control,
178	and be fully responsible for the management of the whole
179	publicly funded State University System and the board, or the
180	board's designee, has responsibility for:
181	1.  Defining the distinctive mission of each constituent
182	university.
183	2.  Defining the articulation of each constituent
184	university in conjunction with the Legislature's authority over
185	the public schools and community colleges.
186	3.  Ensuring the well-planned coordination and operation of
187	the State University System.
188	4.  Avoiding wasteful duplication of facilities or programs
189	within the State University System.
190	5.  Accounting for expenditure of funds appropriated by the
191	Legislature for the State University System as provided by law.
192	6.  Submitting a budget request for legislative
193	appropriations for the institutions under the supervision of the
194	board as provided by law.
195	7.  Adopting strategic plans for the State University
196	System and each constituent university.
197	8.  Approving, reviewing, and terminating State University
198	System degree programs.
199	9.  Governing admissions to the state universities.
200	10.  Serving as the public employer with respect to all
201	public employees of state universities for collective bargaining
202	purposes.
203	11.  Establishing a personnel system for all state
204	university employees; however, the Department of Management
205	Services shall retain authority over state university employees
206	for programs established in ss. 110.123, 110.1232, 110.1234,
207	110.1238, and 110.161, Florida Statutes, and in chapters 121,
208	122, and 238, Florida Statutes.
209	12.  Complying with, and enforcing for institutions under
210	the board's jurisdiction, all applicable local, state, and
211	federal laws.
212	(c)  Constitutional duties of the Legislature.--In
213	accordance with s. 3, Art. II of the State Constitution, which
214	establishes the separation of powers of the three branches of
215	government; s. 1, Art. III of the State Constitution, which
216	vests the legislative power of the state in the Legislature; s.
217	8, Art. III of the State Constitution, which provides the
218	exclusive executive veto power of the Governor and the exclusive
219	veto override power of the Legislature; s. 19, Art. III of the
220	State Constitution, which requires the Legislature to enact
221	state planning and budget processes and requirements for budget
222	requests by general law; s. 1, Art. VII of the State
223	Constitution, which requires that the authority to expend state
224	funds be by general law enacted by the Legislature; and s. 1,
225	Art. IX of the State Constitution, which requires the
226	Legislature to make adequate provision by law for the
227	"establishment, maintenance, and operation of institutions of
228	higher learning," the Legislature has the following
229	responsibilities:
230	1.  Making provision by law for the establishment,
231	maintenance, and operation of institutions of higher learning
232	and other public education programs that the needs of the people
233	may require.
234	2.  Appropriating all state funds through the General
235	Appropriations Act or other law.
236	3.  Establishing tuition and fees.
237	4.  Establishing policies relating to merit and need-based
238	student financial aid.
239	5.  Establishing policies relating to expenditure of,
240	accountability for, and management of funds appropriated by the
241	Legislature or revenues authorized by the Legislature. This
242	includes, but is not limited to, policies relating to:
243	budgeting; deposit of funds; investments; accounting;
244	purchasing, procurement, and contracting; insurance; audits;
245	maintenance and construction of facilities; property; bond
246	financing; leasing; and information reporting.
247	6.  Maintaining the actuarial and fiscal soundness of
248	centrally administered state systems by requiring state
249	universities to continue to participate in programs such as the
250	Florida Retirement System, the state group health insurance
251	programs, the state telecommunications and data network
252	(SUNCOM), and the state casualty insurance program.
253	7.  Establishing and regulating the use of state powers and
254	protections, including, but not limited to, eminent domain,
255	certified law enforcement, and sovereign immunity.
256	8.  Establishing policies relating to the health, safety,
257	and welfare of students, employees, and the public while present
258	on the campuses of institutions of higher learning.
259	(2)  LEGISLATIVE INTENT.--It is the intent of the
260	Legislature to reenact laws relating to the Board of Governors
261	of the State University System, the university boards of
262	trustees, the State Board of Education, and the postsecondary
263	education system in accordance with the findings of this act.
264	Section 2.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.