Opinion
No. CC-38.
August 23, 1976.
Petition for Review — Original Jurisdiction.
John-Edward Alley and Daniel H. Kunkel, Alley Alley, Tampa, and Joe A. McClain, McClain, Hobby Greenfelder, Dade City, for petitioner.
Jack L. McLean, Jr., and Patricia A. Renovitch, Tallahassee, for respondent.
Sidney L. Matthew, Tallahassee, amicus curiae.
On Motion to Strike Directions to Agency Regarding Record on Appeal
Petitioner, Pasco County School Board (School Board), filed its Directions to Agency Regarding Record on Appeal, which delineates some 29 items it deemed to be proper matters for respondent, Public Employees Relations Commission (PERC) to incorporate in the already voluminous record filed in this cause. Examples of the items designated are:
"1. All magnetic cassette and/or any other tape recordings made by Public Employees Relations Commission (hereinafter `PERC') staff personnel of the ULP hearing before PERC on January 14, 1976 from which the transcript designated item No. 4, Volume III of the Record on Appeal filed by PERC on May 11, 1976 was transcribed.
. . . . .
"14. All notes, memoranda, reports, minutes and any other documents or recordings of any deliberative sessions held among any commissioners of PERC relative to the instant consolidated case or any of its subparts."
PERC now moves to strike the subject directions, primarily, on the grounds that same are not within the purview of Section 120.68(5), Florida Statutes (1975). We agree. The instant motion to strike, except as hereinafter provided, is granted.
It is PERC's responsibility to prepare a record for judicial review prescribed by Section 120.68(5), F.S. (1975), including, when the proceeding is one which affects a substantial interest of a party, the specific material described in Section 120.57(1)(b)5, F.S. (1975). The great bulk of the material described in the School Board's directions to PERC was never referred to in the evidence received or proffered at the hearing. Such material is, therefore, not properly to be included in the record for judicial review. In proceedings for administrative determination of the invalidity of a rule by Section 120.56, F.S. (1975), it is, of course, PERC's responsibility to identify in writing all documents considered by it before its action and used as a basis for its action. Section 120.68(5)(c), F.S. (1975).
PERC shall file in the record for judicial review the omitted transcript and those items specified which fall within the purview of Section 120.68(5), F.S. (1975). PERC's motion to strike the School Board's directions is otherwise granted.
It is so ordered.
RAWLS, Acting C.J., and MILLS and SMITH, JJ., concur.