||Douglas Griffin, Esquire
School Board of Martin County
||James A. Robinson, General Counsel
||Your opinion request dated April 19, 2002
QUESTION: Do the selection and relative ranking of firms as provided by a professional services selection committee bind a school board?
QUESTION: If not, may a school board substitute its judgment for said committee's, reorder the recommended firms, and thereafter authorize negotiation with the firms as ordered by the board?
DISCUSSION: We have read your opinion request dated April 19, 2002. We agree with your conclusion that the recommendation of the selection committee is not binding on the School Board. We agree with your analysis and citations, and would add the following points:
- Enclosed is a copy of the Preface to Volume I of the State Requirements for Educational Facilities, 1999, which is incorporated by reference in Rule 6-2.001, F.A.C., provides in pertinent part as follows:
"Requirements applicable to educational facilities are written in standard type. Language in blue italics, which includes "shall," "must," "is," "are," or "required" are a reflection of statute, references from federal, building, fire or other codes, or reiteration of previously required section of SREF applicable to the subject. Language in italics, which includes "may," "optional," "should," and "recommended" are recommendations, suggestions, and good practices provided for the new facilities administrator or the consultant unfamiliar with statutes, federal laws, building codes, fire codes, or other regulations application to public facilities construction programs."
The procedures set forth in Chapter 4, State Requirements for Educational Facilities, 1999, Section 4.1(d) and (e), are in italics and are, therefore, not binding on the School Board.
- Assuming, arguendo, that the above-cited procedures were binding on the School Board, they still would not compel adoption of the selection committee's recommendation. Section 4.1(d)4. provides in pertinent part that, "
The committee should recommend its selections to the board, who should act upon the recommendation." Section 4.1(e) calls for negotiation, "[a]fter the board approves the recommendation of the committee." These provisions evidence an intent that the recommendations of the selection committee be just that-recommendations-and not bind the School Board, which is, after all, is the agency head. See Section 120.52(3) (""Agency head" means the person or collegial body in a department or other governmental unit statutorily responsible for final agency action."). In fact, neither the composition nor the order of priority of the selection committee's list of proposed contractors is binding on the School Board. There would
be little sense in requiring a School Board to go through what would be a purely ministerial act of selecting a contractor if the Board's action on the committee's recommendation were dictated by the recommendation itself.
- The School Board is required to operate, control, and supervise all free public schools in its district and may exercise any power except as expressly prohibited by the State Constitution or general law. See Art. IX, Section 4(b) of the Constitution of the State of Florida, and Section 230.03(2), Florida Statutes; see also Section 230.22(4), Florida Statutes (the powers of school boards include the power to contract; the school board is the contracting agent for the district school system.)
For the foregoing reasons, we conclude that the Martin County School Board is not bound by the recommendations of the selection committee, whose purpose is merely to assist the School Board in the exercise of its discretion.
Please let me know if you need further clarification or information.
cc: Diane Cossin McCain, Director, Choice Office
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