REGULATION DEVELOPMENT REGULATION DEVELOPMENT PROCEDUREPROCEDURE

USF OFFICE OF GENERAL USF OFFICE OF GENERAL COUNSELCOUNSEL

The Death of Common Sense The Death of Common Sense by Phillip K. Howardby Phillip K. Howard

• The Death of Common SenseThe Death of Common Sense is not is not recommended for people with high blood recommended for people with high blood pressure or insomnia. It's loaded with pressure or insomnia. It's loaded with splendid examples of regulatory and legal splendid examples of regulatory and legal stupidity, and contains a blood-boiling stupidity, and contains a blood-boiling outrage … that's just in the first 20 pages. outrage … that's just in the first 20 pages.

• "Relaxing a little and letting regulators use "Relaxing a little and letting regulators use their judgment is the only way to liberate their judgment is the only way to liberate our judgment.”our judgment.”

What has changed at USF?What has changed at USF?

PASTPAST:: RULERULE making procedures were making procedures were governed by Ch. 120.54, Florida Statutesgoverned by Ch. 120.54, Florida Statutes

– Restrictive, slow and arduous processRestrictive, slow and arduous process– Oversight by Jt. Administrative Oversight by Jt. Administrative

Procedures Committee (JAPC) FL Procedures Committee (JAPC) FL legislaturelegislature

NEWNEW: : REGULATIONREGULATION making process making process is governed by Board of Governors (BOG) is governed by Board of Governors (BOG) policypolicy

– More flexible and streamlinedMore flexible and streamlined– 90 days vs. 4-6 months to implement90 days vs. 4-6 months to implement

Why the new process?Why the new process?

BOG has a constitutional duty to BOG has a constitutional duty to govern the SUSgovern the SUS

BOG at first proposed replicating the BOG at first proposed replicating the old “Ch. 120” process old “Ch. 120” process

SUS General Counsels and lobbyists SUS General Counsels and lobbyists wanted a more flexible and wanted a more flexible and streamlined process streamlined process

July 21, 2005 the BOG adopted new July 21, 2005 the BOG adopted new processprocess

What is the new process in What is the new process in the SUS?the SUS?

REGULATION DEVELOPMENT PROCESS

VP to OGC BOT Workgroup NOTICE COMMENTS BOT BOG FILING

Written and signed request to

promulgatenew,

revised,or

repealed regulation is sent to

the OGC.

Proposed regulation

is presentedto appropriate Workgroup

for approval, revision,

orrejection.

Workgroup-approved regulation

is posted on OGC

webpage for

14-day Notice and commentperiod.

Compiledby OGC.

Substantive comments

are taken to Workgroup Chair

who will recommend:-Solicitingadditionalcomments;-amending;

-holdingpublic hearing;-withdrawal; or- to proceed.

Proposed regulationis taken tofull BOT

foradoption,

at least30 days

after posted Notice.

Adopted regulationis sent to

BOG.Select*

regulationsent to

BOG with60 days

to approveor rejectbefore filing.

Adopted regulation

is filedwith the

OGC

STEP 1STEP 1

The Provost, Vice President, or The Provost, Vice President, or designee designee

acquire approval ofacquire approval ofappropriate University groups or appropriate University groups or

committeescommitteesBeforeBefore

new, revised or repealed regulationnew, revised or repealed regulationis sent to General Counsel is sent to General Counsel

for promulgation for promulgation

STEP 2STEP 2

Determine your timeframe (Important)Determine your timeframe (Important)

Select the appropriate Select the appropriate BOT BOT WorkgroupWorkgroup

Select the full BOT meeting that allows Select the full BOT meeting that allows the regulation to be posted on the OGC the regulation to be posted on the OGC website website 30 days30 days prior to the full BOT prior to the full BOT meeting date.meeting date.

STEP 3STEP 3

After the BOT After the BOT WorkgroupWorkgroup approves the Regulation, it is approves the Regulation, it is posted on the OGC website.posted on the OGC website.

The University community has 14 The University community has 14 days from that date to comment.days from that date to comment.

STEP 4STEP 4

The Office of the General Counsel The Office of the General Counsel will compile all comments; present will compile all comments; present them to the initiating VP to them to the initiating VP to determine if changes are necessary.determine if changes are necessary.

Substantive changes will be taken to Substantive changes will be taken to the BOT Workgroup Chair to the BOT Workgroup Chair to determine:determine:

If additional comments are required. If additional comments are required.

Additional comments may be Additional comments may be necessary to determine the necessary to determine the extent of the objection, the extent of the objection, the validity of the objection or the validity of the objection or the means to correcting the means to correcting the objectionable issueobjectionable issue. .

If a public hearing is necessaryIf a public hearing is necessary..

If the objections are widespread, If the objections are widespread, many times a meeting of affected many times a meeting of affected persons allows the University to persons allows the University to hear all of the concerns and at hear all of the concerns and at the same time, fully explain the the same time, fully explain the provisions of the regulation. provisions of the regulation.

If the Regulation should be withdrawnIf the Regulation should be withdrawn

The public hearing allows the The public hearing allows the University to determine if University to determine if amendments or deletions will amendments or deletions will make the regulation acceptable make the regulation acceptable to the University community to the University community

oror

if it should if it should notnot be implemented. be implemented.

To Proceed with adoption.To Proceed with adoption.

If determined that the If determined that the University’s authority has not University’s authority has not been exceeded; the comments been exceeded; the comments have been addressed; or the have been addressed; or the comments are frivolous, the comments are frivolous, the University may continue with the University may continue with the adoption of the regulation. adoption of the regulation.

STEP 5STEP 5 30 days or more after the notice 30 days or more after the notice

posting date, the regulation will be posting date, the regulation will be taken to the full Board of Trustees for taken to the full Board of Trustees for adoption.adoption.

All regulations except “select” All regulations except “select” regulations are effective when regulations are effective when adopted by the Board of Trustees.adopted by the Board of Trustees.

Select RegulationsSelect Regulations

Student feesStudent fees

Articulation Articulation

AdmissionsAdmissions

TuitionTuition

STEP 6STEP 6

When the Board of Trustees adopts When the Board of Trustees adopts selectselect regulations, they regulations, they

are not effectiveare not effective

until the until the Board of GovernorsBoard of Governors approves approves the regulations. The BOG has 60 days the regulations. The BOG has 60 days to approve or disapprove.to approve or disapprove.

STEP 7STEP 7

All BOT adopted Regulations are All BOT adopted Regulations are

filed with the Office of the filed with the Office of the General Counsel.General Counsel.

With all except “Select” With all except “Select” regulations, the effective date regulations, the effective date will be the same as the BOT will be the same as the BOT adoption date. adoption date.

how you can helphow you can help !!! !!!

Send proposed regulation to OGC Send proposed regulation to OGC 60-60-daysdays before full Board of Trustees before full Board of Trustees considers the Regulation:considers the Regulation:

ExampleExample::

Send to OGC: December 1Send to OGC: December 1 UBOT Workgroup: February 2UBOT Workgroup: February 2 Notice-OGC Website: January 31 (latest)Notice-OGC Website: January 31 (latest) BOT Meeting: March 2BOT Meeting: March 2

REGULATIONS vs POLICIESREGULATIONS vs POLICIESWhat’s The DifferenceWhat’s The Difference??

USF has two separate statements concerning its operating procedures: USF has two separate statements concerning its operating procedures: Regulations & USF Policies & Procedures. Regulations & USF Policies & Procedures.

These two methods are very differentThese two methods are very different. .

MAIN PURPOSEMAIN PURPOSE::

Regulations- Implement BOT powers and duties authorized by the BOG and Regulations- Implement BOT powers and duties authorized by the BOG and statutestatute

Policies – General guidelines for operation of the USF as administered and Policies – General guidelines for operation of the USF as administered and delegated by the Presidentdelegated by the President

THE METHODTHE METHOD::

Regulations: Promulgated via BOG Regulation Development Procedure with Regulations: Promulgated via BOG Regulation Development Procedure with authority from the BOG and/or the Florida legislature.authority from the BOG and/or the Florida legislature.

A 30- to 90 day process A 30- to 90 day process

Policies: Promulgated according to President and BOT procedure in USF Policies: Promulgated according to President and BOT procedure in USF Policy 0-001. Policy 0-001. The types of issues The types of issues dealt with via Policies include, describing dealt with via Policies include, describing the conditions upon which commercial solicitation may occur on campus; or the conditions upon which commercial solicitation may occur on campus; or how inventions & works should be handled at USF. how inventions & works should be handled at USF. A 6 to 8 week processA 6 to 8 week process

Challenging RegulationsChallenging Regulations

HOW?HOW? In writingIn writing::

TO WHOM?TO WHOM? Agency Clerk, Gen. Counsel Agency Clerk, Gen. Counsel

VIA? VIA? e-mail e-mail usflegal@admin.usf.eduusflegal@admin.usf.edu..

letter letter 4202 E. Fowler Ave, ADM 250, 4202 E. Fowler Ave, ADM 250, Tampa Florida, 33620Tampa Florida, 33620

faxfax 813-974-5236813-974-5236

Challenging Regulations Challenging Regulations

WHO CANWHO CAN? ?

A substantially affected personA substantially affected person“ “ Any natural person or association with a Any natural person or association with a

majority of natural persons with an majority of natural persons with an interest within the zone of interest interest within the zone of interest protected or regulated who suffers a real protected or regulated who suffers a real and sufficiently immediate injury in fact and sufficiently immediate injury in fact as a result of the application of a as a result of the application of a regulation. “ regulation. “

Challenging Regulations Challenging Regulations

WHENWHEN??

After Adoption by the BOTAfter Adoption by the BOT

Challenging Regulations Challenging Regulations CHALLENGE WHATCHALLENGE WHAT? ?

Particular Invalid Exercise of AuthorityParticular Invalid Exercise of Authority

A regulation is an invalid exercise of authority only if one of the A regulation is an invalid exercise of authority only if one of the following applies: following applies:

The Board of Trustees materially failed to follow regulation development The Board of Trustees materially failed to follow regulation development procedures set forth herein; procedures set forth herein;

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

The regulation vests unbridled discretion in the Board of Trustees; orThe regulation vests unbridled discretion in the Board of Trustees; or The regulation is arbitrary or capricious. The regulation is arbitrary or capricious.