Is Florida's Education Practices Commission, which disciplines teachers and school administrators, treated as a 'state agency' for purposes of the public records law, the Administrative Procedure Act, and the open-meetings rules?

Subject

Education Practices Commission

Plain-English summary

The executive director of Florida's Education Practices Commission (EPC), the body that hears teacher and school-administrator discipline cases, asked the AG whether the EPC counts as a "state agency" under three sets of statutes: chapter 119 (Public Records), chapter 120 (Administrative Procedure Act), and chapter 286 (open meetings, public business).

The AG said yes for all three. The EPC was created in 1980 and is now governed by sections 1012.79 through 1012.799. It has 25 members appointed by the State Board of Education with Senate confirmation. The EPC's job is to interpret and apply standards of professional practice and impose discipline on educators. Section 1012.79(6)(a) assigns the EPC to the Department of Education for administrative purposes but says the EPC "shall not be subject to control, supervision, or direction by the Department of Education" in performing its statutory duties. That structure complies with Article IV, section 6(b) of the Florida Constitution, which permits boards that grant and revoke licenses to be assigned to departments while remaining independent.

The relevant chapter-by-chapter definitions of "agency" each capture the EPC. So the EPC must comply with the public records law, follow the Administrative Procedure Act when it conducts meetings and rulemaking and disciplinary hearings, and meet the open-meetings and public-business requirements of chapter 286.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Florida's executive branch is structured under Article IV, section 6 of the state constitution. Section 6 says all executive functions must be allotted among up to 25 departments, each under the direct supervision of the governor or another specified executive. Section 6(b) makes a key exception: "Boards authorized to grant and revoke licenses to engage in regulated occupations shall be assigned to appropriate departments and their members appointed for fixed terms, subject to removal only for cause."

Section 20.02(2), Florida Statutes, mirrors the constitutional design: agencies in the executive branch should be integrated into one of the departments. Section 20.03 then provides definitions, including:

• "Commission" (§ 20.03(10)): a body created by specific statutory enactment within a department exercising limited quasi-legislative or quasi-judicial powers, or both, independently of the head of the department.
• "Agency" (§ 20.03(11)): an "official, officer, commission, authority, council, committee, department, division, bureau, board, section, or another unit or entity of government," as the context requires.

The EPC's enabling statutes are in sections 1012.79 through 1012.799. Section 1012.79(6)(a) does the constitutional administrative-assignment maneuver: assigned to the Department of Education for administrative purposes, but operating independently in performing its powers and duties. Section 20.15(6) makes the same point: the Commissioner of Education appoints all members of all Department of Education councils and committees "except the Commission for Independent Education and the Education Practices Commission." The State Board of Education appoints EPC members instead.

The procedural side of EPC's work runs through the Administrative Procedure Act. Section 1012.796 puts the Department of Education in charge of investigating complaints. If probable cause is found, the Department prosecutes under chapter 120 before an administrative law judge. The ALJ issues a recommended order. A panel of the EPC then conducts a formal review and issues a final order.

Each of the three chapters in question has its own "agency" definition:

• Chapter 119 (Public Records). Section 119.011(2) defines "agency" broadly as any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law.
• Chapter 120 (Administrative Procedure Act). Section 120.52(1) defines "agency" to include, in (b), each officer and governmental entity in the state having statewide jurisdiction or jurisdiction in more than one county.
• Chapter 286. Various provisions reach "boards," "commissions," and "agencies" of state government.

Why the AG reached this conclusion

The opinion ran a clean three-step.

Step 1: chapter 119. Section 119.011(2)'s definition explicitly covers "commissions" and "other separate units of government created or established by law." The EPC was created by statute and is a commission. So it is an "agency" for chapter 119 purposes. That means the EPC must follow the rules on public-records inspection (section 119.07(1)(a)), maintenance (section 119.021), exemptions (section 119.071), records made part of court files (section 119.0714), copyright protection for data processing software (section 119.084), and penalties for violations (section 119.10). It must also comply with section 119.0701 when contracting for services with private vendors.

Step 2: chapter 120. Section 120.52(1)(b) reaches "each officer and governmental entity in the state having statewide jurisdiction or jurisdiction in more than one county." The EPC has statewide jurisdiction over educator discipline. It is a governmental entity. So it is an agency for chapter 120 purposes. The EPC's rulemaking authority (sections 1012.79(7)(d) and 1012.795(6)(b)) and final-order authority (sections 1012.79(8) and 1012.796(7)) are "agency action" under section 120.52(2). The EPC's collegial body that issues final orders is the "agency head" under section 120.52(3). Its rules are "rules" under section 120.52(16).

Step 3: chapter 286. Each of the four sections at issue (286.0105, 286.011, 286.0114, and 286.012) covers "boards," "commissions," or "state agencies." The EPC, as a state-level commission with statutory authority, fits all of those terms. So the EPC must include the appellate-record notice in meeting and hearing notices (section 286.0105), hold open public meetings under the Sunshine Law (section 286.011), provide opportunity for public comment (section 286.0114), and follow voting requirements at governmental meetings (section 286.012).

Some of the practical questions Brantley raised (about how chapter 120 interplays with the specific EPC procedures, and about Department of Education functions in EPC's adjudicatory process) the AG declined to answer in detail, recommending that the EPC and Department of Education work them out together.

Common questions

What is the Education Practices Commission?

The EPC is a 25-member body that handles discipline of Florida public school teachers and school administrators. The Department of Education investigates complaints and prosecutes them; the EPC adjudicates. Members are appointed by the State Board of Education, confirmed by the Senate, and serve staggered four-year terms up to a maximum of eight years. Members can only be removed for misconduct.

Why was this question even contested?

Section 1012.79(6)(a) says the EPC operates "independently" of the Department of Education for its core functions. That language could be read to suggest the EPC is its own thing, separate from the executive structure that defines "agency" in various chapters. The opinion makes clear that being administratively independent of a parent department does not take the EPC out of the broader definitions of "agency."

What concrete obligations does this create for the EPC?

The EPC must respond to public records requests, follow procedures and timelines under the APA for rulemaking and adjudication, hold its meetings in public with proper notice, allow public comment, and follow voting and meeting requirements. It also must include public-records compliance language in contracts with vendors who handle EPC public records.

Are EPC disciplinary hearings open to the public?

Generally yes, subject to whatever specific exemptions apply (such as protection of student records). Open-meetings law applies to the panel's deliberations on whether to issue a final order; the underlying ALJ hearings are conducted under chapter 120.

Why did the AG decline to address chapter 120 / Department of Education interplay questions?

The opinion notes those issues are "better left for the EPC to resolve in consultation with the Department of Education." The AG opinion process is designed to answer specific legal questions of statutory interpretation, not to mediate operational questions between two state entities about how their procedures fit together.

Citations

• Art. IV, § 6, Fla. Const.
• Ch. 119, Fla. Stat. (especially §§ 119.011(2), 119.07(1)(a), 119.0701, 119.0714, 119.084, 119.10)
• Ch. 120, Fla. Stat. (especially § 120.52(1), (2), (3), (16))
• Ch. 286, Fla. Stat. (§§ 286.0105, 286.011, 286.0114, 286.012)
• §§ 20.02(2), 20.03(10), (11), 20.04, 20.15(6), Fla. Stat.
• §§ 1012.79, 1012.795, 1012.796, 1012.797, 1012.798, 1012.799, Fla. Stat.
• Ch. 80-190, § 6, Laws of Fla. (1980)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/education-practices-commission
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1469

Original opinion text

Gretchen Kelley Brantley, J.D.
Executive Director
Education Practices Commission
316 Turlington Building
325 West Gaines Street
Tallahassee, Florida 32399-0400

Dear Ms. Brantley:

This office has received your letter asking whether the Education Practices Commission is a state agency under certain statutory provisions. Until legislatively or judicially determined otherwise, it is my opinion that the Education Practices Commission is an agency of state government for the purposes contained in the statutes discussed herein, found in chapters 119, 120, and 286.

The Legislature created the Education Practices Commission (hereinafter "EPC" or "Commission") in 1980. See Ch. 80-190, § 6, Laws of Fla. (1980) (CS/HB 97) (creating § 231.555, Florida Statutes). Its essential powers and duties are currently set forth in sections 1012.79 through 1012.799, Florida Statutes (2019). Under section 1012.79, the EPC consists of 25 members appointed by the State Board of Education, subject to Senate confirmation. Members serve staggered four-year terms for up to eight years and may be removed by the State Board of Education for misconduct.

The duties of the EPC are stated in section 1012.79(7) as follows:

(a) to interpret and apply the State Board of Education's standards of professional practice;
(b) to impose discipline upon teachers and school administrators;
(c) to annually meet with the State Board of Education; and
(d) to adopt rules to implement the laws applicable to the EPC.

Its quasi-judicial role under paragraph (b) is set forth more specifically in sections 1012.795 and 1012.796, Florida Statutes. Under section 1012.796, the Department of Education ("Department") investigates an initial complaint against a teacher or administrator. If the Department finds probable cause that there has been a violation of law under section 1012.795(1)(a) through (p), it files a formal complaint against the teacher or administrator and prosecutes the action pursuant to chapter 120. After a hearing, the administrative law judge issues a recommended order to the Commission. A panel of the Commission then conducts "a formal review of such recommendations and other pertinent information" and issues a final order either dismissing the complaint or imposing any of the penalties enumerated in section 1012.796(7), Florida Statutes.

The Role of the Education Practices Commission Within the Executive Branch

Chapter 20 of the Florida Statutes sets forth the organizational structure of the executive branch. Section 20.02(2), Florida Statutes, provides, in part: "The agencies in the executive branch should be integrated into one of the departments of the executive branch to achieve maximum efficiency and effectiveness as intended by s. 6, Art. IV of the State Constitution." Article IV, section 6 provides that all executive-branch functions must be allotted among up to 25 departments, each "under the direct supervision of the governor, lieutenant governor, governor and cabinet, a cabinet member, or an officer or board appointed by and serving at the pleasure of the governor," with two exceptions. Exception (b) applies to: "Boards authorized to grant and revoke licenses to engage in regulated occupations [which] shall be assigned to appropriate departments and their members appointed for fixed terms, subject to removal only for cause."

Consistent with article IV, section 6(b), and with section 20.02, Florida Statutes, the Legislature assigned the EPC to the Department of Education, but granted it a measure of independence from the Department in section 1012.79(6), as follows:

(6)(a) The [Education Practices Commission] shall be assigned to the Department of Education for administrative purposes. The commission, in the performance of its powers and duties, shall not be subject to control, supervision, or direction by the Department of Education.

(b) The property, personnel, and appropriations related to the specified authority, powers, duties, and responsibilities of the commission shall be provided to the commission by the Department of Education.

In section 20.15, Florida Statutes (2019), which sets forth the structure of the Department of Education, subsection (6) provides: "COUNCILS AND COMMITTEES. — Notwithstanding anything contained in law to the contrary, the commissioner [of Education] shall appoint all members of all councils and committees of the Department of Education, except the Commission for Independent Education and the Education Practices Commission." (Emphasis added.)

Section 20.03, Florida Statutes, contains definitions applicable to the executive branch, "[t]o provide uniform nomenclature throughout the structure of the executive branch." The statute contains no language limiting its definitions to chapter 20.

Section 20.03(10) defines "commission":

(10) "Commission," unless otherwise required by the State Constitution, means a body created by specific statutory enactment within a department, the office of the Governor, or the Executive Office of the Governor and exercising limited quasi-legislative or quasi-judicial powers, or both, independently of the head of the department or the Governor.

This definition encompasses the EPC.

Section 20.03(11) defines "agency":

(11) "Agency," as the context requires, means an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or another unit or entity of government. (Emphasis added.)

Under this definition, a "commission" like the EPC may thus be considered an agency for some purposes. Whether the EPC is an "agency" for the purposes set forth in individual statutes depends on how those statutes use or define the term.

I. Chapter 119, Florida Statutes – Public Records

Under section 119.07(1)(a), Florida Statutes, every "agency" must facilitate the inspection of its public records by any person wishing to do so, under the supervision of the agency's custodian of public records. Section 119.011(2), Florida Statutes, defines "agency" as used throughout the chapter:

(2) "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

(Emphasis added.)

You observe that, if EPC is an "agency" under chapter 119, it must ensure that policies and protocols are in place to comply with the requirements of chapter 119 regarding proper disclosure and protection of public records. Because the plain language of the definition of agency in section 119.011(2) encompasses the EPC and applies chapter-wide, the provisions you cite from chapter 119 do apply to the EPC. You specifically cite sections 119.021 (how records must be maintained); 119.071 (general exemptions from inspection); 119.0714 (records that have been made part of a court file); 119.084 (copyright protection for data processing software); 119.10 (penalties for violating chapter 119); 119.105 (disclosure of police reports); 119.11 (hearings regarding violations of chapter 119); and 119.12 (attorney's fees in a civil action for violation of chapter 119).

You also ask about the applicability of section 119.0701, Florida Statutes, which deals with public-records law compliance by persons and entities that enter into contracts with "public agencies." Section 119.0701(1)(b) defines "public agency" as "a state, county, district, authority, or municipal officer, or department, division, board, bureau, commission, or other separate unit of government created or established by law." (Emphasis added.) Under the plain language of this definition, the EPC is a "public agency" and must comply with the provisions of section 119.0701 when contracting for services.

II. Chapter 120, Florida Statutes – Administrative Procedure Act

Chapter 120 provides procedures agencies must follow when conducting meetings, hearings, rulemaking, and other actions. The definition of "agency" in section 120.52(1) applies throughout chapter 120:

(1) "Agency" means the following officers or governmental entities if acting pursuant to powers other than those derived from the constitution:
(a) The Governor; each state officer and state department, and each departmental unit described in s. 20.04; the Board of Governors of the State University System; the Commission on Ethics; the Fish and Wildlife Conservation Commission; a regional water supply authority; a regional planning agency; a multicounty special district, but only if a majority of its governing board is comprised of nonelected persons; educational units; and each entity described in chapters 163, 373, 380, and 582 and s. 186.504.
(b) Each officer and governmental entity in the state having statewide jurisdiction or jurisdiction in more than one county. (Emphasis added.)

The EPC is not one of the specific departmental units set forth in section 20.04, Florida Statutes (which are division, bureau, section, or subsection), but it is a "governmental entity" with "statewide jurisdiction" granted by statute. It therefore comports with the definition of "agency" in section 120.52(1)(b).

Additional terms in section 120.52 further support the EPC's role as an "agency." The Legislature gave the EPC the authority to adopt rules in sections 1012.79(7)(d) and 1012.795(6)(b), Florida Statutes, and to issue final orders following disciplinary hearings in sections 1012.79(8) and 1012.796(7), Florida Statutes. These actions constitute "agency action" according to section 120.52(2). The collegial body in a governmental unit statutorily responsible for final agency action is the "agency head" under section 120.52(3). Finally, a "rule" is defined in section 120.52(16) as an "agency statement of general applicability." Accordingly, the EPC is an agency for purposes of chapter 120.

You raise various issues regarding the interplay between Chapter 120 and the statutes that govern EPC proceedings. Those matters are better left for the EPC to resolve in consultation with the Department of Education. You also raise some issues regarding various functions in the EPC's adjudicatory process that are handled by the Department of Education. Those matters are better addressed jointly by the EPC and the Department.

III. Chapter 286, Florida Statutes – Public Business: Miscellaneous Provisions

You state that the EPC is "its own entity and not an agency of the Department of Education" for purposes of complying with four provisions in chapter 286. The text of the statutes makes plain that the distinction makes no difference. The definitional terms of each provision apply to "commissions" like the EPC:

• Section 286.0105, regarding information about preserving a record for appeal that must be included in notices of meetings and hearings, applies to "[e]ach board, commission, or agency of this state."
• Section 286.011, dealing with public meetings and records, applies to "any board or commission of any state agency."
• Section 286.0114, dealing with the public's opportunity to be heard at a public meeting, applies to meetings of "a board or commission of any state agency."
• Section 286.012, which provides requirements for voting on official decisions, rulings, or acts at governmental meetings, applies to a member of "a state, county, or municipal governmental board, commission, or agency who is present."

Therefore, the Education Practices Commission is authorized by the provisions discussed above to exercise the powers granted therein to an agency or commission, as the context requires.

Sincerely,

Ashley Moody
Attorney General