STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF VOLSIA COUNTY, )
)
Petitioner, )
)
vs. )
) VOLUSIA ELEMENTARY CHARTER ) SCHOOL, INC., d/b/a BOSTON ) AVENUE CHARTER SCHOOL, )
)
Respondent. )
Case No. 12-1612
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on August 16, 23, and 24, 2012 in DeLand, Florida, and concluded on September 24, 2012, by video teleconference at sites in Tallahassee, Florida and Daytona Beach, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Theodore R. Doran, Esquire
Barbara C. Reid, Esquire Doran, Sims, Wolfe & Kundid Suite 100
1020 West International Speedway Boulevard Daytona Beach, Florida 32114
For Respondent: Brandon S. Peters, Esquire
Peters Trial Group, LLC Suite 351
522 South Hunt Club Boulevard Apopka, Florida 32703
STATEMENT OF THE ISSUE
Whether Petitioner, Volusia County School Board, has good cause to non-renew Respondent‟s charter for the Volusia Elementary Charter School as set forth in Petitioner‟s Notice of Action to Not Renew the Charter for the Volusia Elementary
Charter School Inc.
PRELIMINARY STATEMENT
At a scheduled meeting on March 30, 2012, the Volusia County School Board (“Petitioner” or “School Board”) voted not to renew the Charter School Agreement existing between it and Volusia Elementary Charter School Inc., d/b/a Boston Avenue Charter School (“Respondent” or “Boston Avenue”). The School Board issued a Notice of Action to Not Renew the Charter for the Volusia Elementary Charter School, Inc. (“Notice”) setting forth the basis for the School Board‟s decision. The date of receipt of the Notice by Boston Avenue is in dispute.
On April 12, 2012, Boston Avenue timely requested a hearing to contest the School Board‟s proposed decision. The Request for Hearing disputed the grounds for the non-renewal, and raised several other “threshold matters,” including whether the Notice was timely pursuant to section 1002.33(8), Florida Statutes.
The Boston Avenue Request for Hearing was referred to the Division of Administrative Hearings (“DOAH”) for the assignment of an administrative law judge to conduct a hearing on the
matter. The School Board‟s referral was accompanied by a Petition for Administrative Hearing filed by the School Board.
The final hearing was scheduled for July 30 through August 1, 2012. On July 19, 2012, Respondent filed a Motion to Continue Hearing. A motion hearing was held, the Motion was
granted, and the hearing was rescheduled for August 16, 23, and 24, 2012 in DeLand, Florida.
During the period leading up to and during the course of the final hearing, several motions were filed and disposed of by separately-issued Orders. Those motions, and their disposition, may be determined by reference to the docket of this case.
On August 9, 2012, the parties filed their Joint Prehearing Stipulation which included Admitted Facts agreed upon by the parties. Those facts are incorporated herein.
The hearing was commenced on August 16, 2012, and was carried over to August 23 through 24, 2012, as scheduled. The hearing was not concluded by August 24, 2012. The remainder of the hearing was rescheduled for September 24, 2012, by video teleconference, and was thereupon concluded.
At the commencement of the final hearing, the parties agreed to the admission of Joint Exhibits 1-8, and they were received into evidence.
Petitioner presented the testimony of eight witnesses in its case-in-chief: Dr. Alicia Parker, Coordinator of
Accountability and Evaluation; Nancy Redmond, Assistant Director of Exceptional Student Education and Student Services; Gregory Akin, Director of Student Transportation Services; William French, Assistant Director for Student Transportation Services; Dana Paige-Pender, Human Resources Specialist; Michelle Hannah, former Boston Avenue teacher; Amy Carey, former Boston Avenue teacher; and Michelle Roun, former Boston Avenue teacher. In its case on rebuttal, Petitioner presented the testimony of Tracy Wilham, Administrative Secretary to Petitioner‟s chief counsel; Mr. Akin; Dr. Donald Boulware, Executive Director for Technology Services; Ms. Paige-Pender; Ms. Redmond; and
Dr. Parker. Petitioner did not designate any witness as an expert in the Joint Prehearing Stipulation. Petitioner‟s Exhibits 9, 11-13, 15, 17, 17a, 20, 22, 26, 27, 29-31, and 33-36
were received into evidence.
Boston Avenue presented the testimony of six witnesses: Amber Trevino, an employee of School Management Solutions, Inc.; Carol Bush, Finance Director; Stephen Weems, assistant principal; Shawn Viecelli, former Director of Boston Avenue; Andrew Kantor, Esquire, of Brennan, Manna & Diamond, P.L., who was designated as an expert on charter school contracts; and Micah Jackson, Chief Operating Officer of School Management Solutions, Inc. Respondent‟s Exhibits H, Q, U, AF, AG, AL, AO, AW, AAA, AAB, and AAC were received into evidence.
Portions of testimony from the following witnesses were proffered: Shawn Viecelli, Andrew Kantor, Micah Jackson, and Nancy Redmond. Respondent‟s Exhibits J, K, L, M, AI, AN, AR, AX, AY, AAD, and AAE were proffered. The proffered evidence does not form the basis for any findings of fact in this Recommended Order.
A seven-volume Transcript of the proceedings was filed on October 4, 2012. By agreement of the parties, the length of the proposed recommended orders was set at a maximum of 50 pages, with a filing date of 30 days from the date of the filing of the Transcript. In addition, the parties were allowed to submit memoranda on the issues of whether the failure to provide notice at least 90 days prior to the non-renewal was a basis for the renewal of the charter by default, and whether the burden of proof in this proceeding is that of a preponderance of the evidence or that of clear and convincing evidence. Pursuant to motion and agreement by the undersigned, the filing date was extended to November 9, 2012. Both parties timely filed Proposed Recommended Orders which have been duly considered by the undersigned in the preparation of this Recommended Order.
FINDINGS OF FACT
On June 24, 2008, the School Board and Boston Avenue entered into the School Board of Volusia County, Florida Charter for the Academies of Excellence, Inc. (the “Charter”). The
Charter, which was a contract between the parties, was effective from July 1, 2008 through June 30, 2012.
Pursuant to the Charter, Boston Avenue operates and maintains a pre-kindergarten through fifth grade charter school in DeLand, Florida. The school, which is a Florida public school, opened at the beginning of the Volusia County School District‟s (“District”) 2008-2009 school year.
The Charter provides that Boston Avenue is a unit of the District, is subject to the supervisory jurisdiction of the School Board, is accountable to the School Board for performance to the extent provided by law, and is subject to the laws of Florida and the rules of the State Board of Education.
Florida public schools are subject to “a statewide program of educational assessment that provides information for the improvement of the operation and management of the public schools . . . .” School assessment is largely the result of student achievement assessment, including Florida Comprehensive Assessment Test (“FCAT”) scores, and measures of effective school management. § 1008.22(3), Fla. Stat.
The Commissioner of Education is required to issue annual reports that describe student achievement in the state, each school district, and each school. The annual report assigns a grade to each school based on the results of the student achievement assessment scores, student learning gains,
and improvement of the lowest 25th percentile of students in the school in reading and mathematics. Section 1008.34(1) establishes the grades and their meaning as follows:
“A” - schools making excellent progress.
“B” - schools making above average progress. “C” - schools making satisfactory progress.
“D” - schools making less than satisfactory progress. “F” - schools failing to make adequate progress.
Schools having an enrollment that is less than the minimum sample size do not receive a school grade.
During its first year of operation in the 2008-2009 school year, Boston Avenue enrolled fewer than 100 students, which was less than the minimum sample size. It was therefore too small to receive a school grade.
7. For the 2009-2010 school year, Boston Avenue received a grade of “F.”
For the 2010-2011 school year, Boston Avenue received a grade of “D.”
For the 2011-2012 school year, Boston Avenue received a grade of “F.”
Section XI.C.(1) of the Charter provides, in pertinent part, that “[t]his Contract may be renewed provided that a program review demonstrates that the criteria in section 1002.33(7)(a), Florida Statutes, have been successfully
accomplished and that none of the grounds for non-renewal established by section 1002.33(8)(a), Florida Statutes, has been documented.”
Dr. Parker took the position as the Board‟s Coordinator of Accountability and Evaluation in January 2011. When she came to the job, the charter school program review process used a generic template that was applied to every charter school in the district, regardless of whether the areas of review listed on the template were applicable to a specific school‟s charter.
Dr. Parker modified the template to make it unique to each charter school, using the criteria of each charter to guide the language and structure of the template. Despite the change in the template, which is nothing more than a method of recording results, the charter review process remained essentially unchanged.
In October 2011, the District conducted a program review of Boston Avenue to determine if the Charter should be renewed.
On December 13, 2011, the Office of Program Accountability and Evaluation submitted its Boston Avenue Charter School Charter Review (“Review”) to the Superintendant of Schools. The Review covered the following topic areas: Curriculum and School Improvement Services, including the 2011
Annual Accountability Report; Facilities Services, Financial Services, including Finance, Budget and Insurance, and Food Services; Human Resources; Technology Services, including Student Accounting Services; Safety and Security; and Transportation Services.
Each topic area had contract subtopics that were generally tied to specific Charter requirements and applicable statutory standards.
The Review identified a number of areas in which Boston Avenue was deficient. Of the 80 individual contract subtopics, the Review identified 46 that were met, 19 that were partially met, 10 that were not met, and five that were not applicable.
On March 22, 2012, Respondent submitted a Charter Review Response and Supplemental Appendix as its response to the December 13, 2012 Review. The evidence suggests that staff did not review or use the Charter Review Response and Supplemental Appendix in its deliberative process leading up to the decision to recommend non-renewal to the School Board.
In March 2012, the School Board‟s office of Curriculum and School Improvement Services and office of Student Transportation Services prepared supplemental reports to update the status of those subtopic areas that were previously
determined to not meet the areas of review, and prepared revised charts that outlined their current status.
It was suggested that the additional information set forth in the revised charts should not be considered in this proceeding, as it was generated after the normal review process was concluded. Given the de novo review afforded under the Administrative Procedures Act, the additional information and supplemental reports are pertinent to the consideration of whether the Charter should be renewed, and are considered herein.
By its terms, the Charter expired on June 30, 2012.
The vote to not renew the Charter was taken on March 30, 2012. A draft version of the Notice was provided as
part of the agenda of the meeting. The meeting was attended by, among others, counsel for Boston Avenue and Boston Avenue Principal Nichole Gaw.
After a short presentation by its staff and counsel, the School Board voted 5-0 to approve the school superintendant‟s recommendation that the Boston Avenue Charter not be renewed. Counsel for Respondent understood the effect of the vote, and indicated to Petitioner that “[w]e will make a decision [whether to request a hearing] within the 14-day time.”
The Notice was signed and executed on Friday, March 30, 2012.
Petitioner made reasonable efforts to provide the signed Notice to Respondent on March 30, 2012, which efforts included an attempt to hand-deliver the Notice before 5:00 p.m., on that date to the Boston Avenue school building and to the law office of Respondent‟s counsel. Both buildings were locked. In addition, efforts to electronically send the Notice to Petitioner were made over the weekend.
Although reasonable efforts to effect delivery were made, the evidence is insufficient to prove that Respondent received actual written notice of Petitioner‟s decision to not renew the Charter until an envelope containing the Notice was hand-delivered to an authorized agent of Respondent on Monday, April 2, 2012.
Monday, April 2, 2012, was 89 days prior to the June 30, 2012, expiration of the Charter.
Grounds for Non-Renewal
1. Failure to Meet the Requirements for Student Performance Stated in the Charter
The Notice alleged that Respondent failed to meet the objectives for student performance established in the Charter. The Charter included the following measures of student performance:
FCAT Testing - Academic Progress
Section III.B.(2) of the Charter provides that:
Student academic progress will be measured by a growth model as evidenced by standardized tests. Student academic progress will be measured by FCAT under the following standards.
The student will have improved his or her FCAT Achievement level one year to the next; or
The student will have maintained his or her achievement level as a 3, 4 or 5 from one year to the next; or
The student will have remained within FCAT Achievement levels 1 or 2, but will have demonstrated more than one year‟s growth on the FCAT developmental scale, applying the Department of Education‟s measurement of growth.1/
Reading
The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Reading as follows:
Fourth Grade FCAT Reading
11.11 percent of fourth-grade students improved their FCAT reading achievement level one year to the next, and an additional 8.33 percent maintained a level five -- the highest level achievable. 80.56 percent of fourth-grade students failed to improve their FCAT reading achievement level one year to the next.
59% of fourth-grade students maintained their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 41% of fourth-grade students failed to maintain their
FCAT reading achievement level as a 3, 4, or 5 from one year to the next.
42% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year‟s growth on the FCAT developmental scale. 58% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year‟s growth on the FCAT developmental scale.
Fifth Grade FCAT Reading
4.76% of fifth-grade students improved their FCAT reading achievement level one year to the next, and an additional 14.29% maintained a level five - the highest level achievable. 80.95% of fifth-grade students failed to improve their FCAT reading achievement level one year to the next.
90% of fifth-grade students maintained their FCAT reading achievement level as a three, four, or five from one year to the next. 10% of fifth-grade students failed to maintain their FCAT reading achievement level as a three, four, or five from one year to the next.
29% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year‟s growth on the FCAT developmental scale. 71% of fifth-grade students at level one
or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year‟s growth on the FCAT developmental scale.
Math
The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Math as follows:
Fourth Grade FCAT Math
8.33% of fourth-grade students improved their FCAT math achievement level one year to the next, and an additional 5.56% maintained a level five -- the highest level achievable. 86.11% of fourth-grade students failed to improve their FCAT math achievement level one year to the next.
40% of fourth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fourth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next.
44% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year‟s growth on the FCAT developmental scale. 56% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year‟s growth on the FCAT developmental scale.
Fifth Grade FCAT Math
4.76% of fifth-grade students improved their FCAT math achievement level one year to the next. 95.24% of fifth-grade students failed to improve their FCAT math achievement level one year to the next.
50% of fifth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 50% of fifth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next.
60% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year‟s growth on the FCAT developmental scale. 40% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year‟s growth on the FCAT developmental scale.
FCAT Testing - Academic Progress Conclusion
A substantial, and often overwhelming, number of students failed to meet the criteria for academic progress measured by FCAT as established in section III.B.(2) of the Charter.
Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence,
that Respondent failed to meet the objectives for student academic progress established in section III.B.(2) of the Charter.
FCAT Testing - Learning Gains
In addition to the foregoing, section XIII.A. of the Charter provides, in pertinent part, that:
The School shall be subject to the same accountability requirements as other public schools, including reports of student achievement information that links baseline student data to the School‟s performance projections identified in the charter. The charter school shall identify reasons for any difference between projected and actual student performance. The “projections identified in this charter” shall be as follows: (1) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the reading portion of the FCAT; (2) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the math portion of the FCAT; (3) The average score for the students taking the science portion of the FCAT will meet or exceed the District average; and
(4) The average score for the students taking the FCAT Writes will meet or exceed the District average.
54% of Boston Avenue students made learning gains on the reading portion of the FCAT in 2011.
44% of Boston Avenue students made learning gains on the math portion of the FCAT in 2011.
Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence,
that Respondent failed to meet the objectives for student learning gains established in section XIII.A. of the Charter.
Other Student Assessment Tests
Section III.B.(4) of the Charter provides that:
In addition to the State required achievement tests, the School will use a standardized test for assessing students in core subject areas (reading, math, and science) in the Fall in order to get baseline data. The students will then be assessed in the Spring to determine the amount of yearly academic gain.
Section III.B.(4) of the Charter governs the administration of the standardized assessment tests, rather than the results of the testing.
The Florida Assessment for Instruction in Reading (“FAIR”) is an assessment test for reading proficiency that is provided by the state of Florida. All schools in the District administer the FAIR test three times a year.
Boston Avenue met section III.B.(4) for reading by administering the FAIR in grades one through five.
The Differentiated Accountability Assessment (“DA Assessment”) is an assessment test for math and science proficiency that was developed by District specialists, and has been used for a number of years. All schools in the District administer the DA test twice per year, in the fall and in the middle of the year.
Boston Avenue met section III.B.(4) for math by administering the DA Assessment in grades three through five.
Boston Avenue met section III.B.(4) for science by administering the DA Assessment for science in the fifth grade.
In contrast to section III.B.(4) of the Charter, section III.B.(6) is directed to the results of the testing, and provides, in pertinent part, that “[t]he academic progress of students and the School will be evaluated and compared to the rate of progress of the students in the Volusia County School District not enrolled in the School.” Thus, an analysis of the results of the FAIR testing for reading, and the DA Assessment testing for math and science, and their measurement of academic progress, is appropriate for determining whether Respondent met the Charter standards to warrant renewal.
Standardized Test for Reading - FAIR
The District has established that a student is “proficient” in reading if he or she correctly answers 80% of the questions on the FAIR for their grade level. A demonstration of proficiency in FAIR correlates to a high probability that a student can score at a level three or higher on the FCAT reading achievement test. The FAIR testing for first and second grade is predictive, since there is no corresponding FCAT test, but allows the school and the District
to identify targeted areas of need before the students get to third grade where FCAT scores may require a repeat of grade.
The Board created four categories of measuring student achievement based on performance on the FAIR testing performed during the year. A student was determined to have “decreased proficiency” if he or she went from proficient to below proficient in reading during the course of the year. A student was determined to have “maintained proficiency” if he or she scored above the 80% correct answer level during the course of the year. A student was determined to have “maintained below proficiency” if he or she scored below 80% correct answer level during the course of the year, but was not falling further behind. Finally, a student was determined to have “improved proficiency” if he or she scored went from below the 80% correct answer level to at or above the 80% correct answer level during the course of the year.
First Grade FAIR Reading
In first grade, 18% of students improved their proficiency in reading, 51% maintained proficiency, 23% of students maintained below proficiency, and 8% of students decreased in proficiency. With 69% of students reading at a level of proficiency by the end of the year, and with only 8% decreasing in proficiency, Dr. Parker indicated that “first grade isn‟t necessarily a huge area of concern.”
Second Grade FAIR Reading
In second grade, 3% of students improved their proficiency in reading, 9% of students maintained proficiency, 77% of students maintained below proficiency, and 11% of students decreased in proficiency. Thus, 88% of Boston Avenue second grade students were reading below proficiency.
Third Grade FAIR Reading
In third grade, 11% of students improved their proficiency in reading, 5% maintained proficiency, 78% of students maintained below proficiency, and 5% of students decreased in proficiency. With a total of 83% of students reading below the level of proficiency, and with the FCAT test being administered at the end of the year, Dr. Parker characterized the FAIR results as “alarming.”
Fourth Grade FAIR Reading
In fourth grade, 3% of students improved their proficiency in reading, 41% of students maintained proficiency, and 56% of students maintained below proficiency. No fourth- grade students decreased in proficiency as assessed by FAIR.
Fifth Grade FAIR Reading
In fifth grade, 16% of students improved their proficiency in reading, 28% percent maintained proficiency, and 56% of students maintained below proficiency. No fifth-grade students decreased in proficiency as assessed by FAIR.
Standardized Test for Math - DA Assessment
The DA Assessment test uses the same proficiency standards and categories that were developed for the FAIR. As with the FAIR test for reading, the DA Assessment is designed to be predictive of how students will perform on the FCAT.
Third Grade DA Math
In third grade, 46% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. No third-grade students decreased in proficiency in math as assessed by the DA Assessment.
Fourth Grade DA Math
In fourth grade, 41% of students improved from below proficiency to proficiency in math, and 59% of students maintained below proficiency. No fourth-grade students decreased in proficiency in math as assessed by the DA Assessment.
Fifth Grade DA Math
In fifth grade, 42% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. One fifth-grade student (4%, as based on a fifth-grade enrollment of 25 students) decreased in proficiency in math as assessed by the DA Assessment.
Standardized Test for Science - DA Assessment
In fifth grade, 4% of students maintained proficiency in science, 30% of students improved from below proficiency to proficiency, and 65% of students maintained below proficiency. No fifth-grade students decreased in proficiency in science as assessed by the DA Assessment.
Failure to Maintain an Acceptable Level of Student Achievement in the State‟s Education Accountability System and Other Standardized Testing
Paragraphs 1 and 2.a. of the Notice make the school grades earned by Boston Avenue, and the results of the standardized student assessment tests, basis for the non-renewal of the Charter.
The FAIR and DA Assessment test results demonstrate that, while some students demonstrated proficiency, the majority of students at Boston Avenue who were administered the non-FCAT standardized assessment testing either maintained below the level of proficiency or decreased in proficiency.
Boston Avenue‟s receipt of a school grade of “F” in the 2009-2010 school year, “D” in the 2010-2011 school year, and “F” in the 2011-2012 school year, combined with the results of the standardized student assessment tests, demonstrated a lack of student improvement over the course of the past three years.
For the 2010-2011 school year, Boston Avenue was one of only two of the 46 elementary schools in the District to
receive a grade of “D.” There were no “F” schools for that year. The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 46 elementary schools in Volusia County by a substantial margin.
For the 2011-2012 school year, Boston Avenue was one of only two of the 52 elementary schools in the District to receive a grade of “F.” The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 52 elementary schools in Volusia County by an even wider margin than the previous year.
Section 1002.33(7)(a)12., which governs the standards for issuance of a school charter, provides that the charter may be cancelled during its term “if insufficient progress has been made in attaining the student achievement objectives of the charter and if it is not likely that such objectives can be achieved before expiration of the charter.”
Section 1002.33(7)(b)1., provides, in pertinent part, that “[a] charter may be renewed provided that a program review demonstrates that the criteria in paragraph (a) have been successfully accomplished and that none of the grounds for nonrenewal established by paragraph (8)(a) has been documented.”
The grade of “F” for the most current year -- meaning that students at the school are failing to make adequate progress -- is strong evidence that the standards for renewal of
the Charter have not been met. Thus, in the course of renewing a charter, it was not an error for the School Board to give consideration to the student achievement objectives, even those of a general and non-numeric nature.
The evidence in this case, taken as a whole, demonstrates that Boston Avenue failed to meet levels of academic progress that approached even the lowest performing District-operated elementary schools in Volusia County.
Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(6) of the Charter, thus constituting a reasonable and valid basis for the non-renewal of the Charter.
Comparison with Learning Gains of Similar District Schools
Section III.B.(5) of the Charter provides that:
To the greatest extent possible, a comparison of learning gains as defined by the State under the Florida A+ Accountability Plan will then be compared with the learning gains of similar district schools with comparable populations using demographic information obtained at www.myflorida.com. Learning gains will be examined as determined by the State based on the percentage of students in the lowest 25% of the School showing improvement of more than one year within level 1 or 2. The state minimum acceptable standard for performance in reading and mathematics by
students in the lower quartile is 50% of these students will make a learning gain.
The comparator elementary schools were determined by the percentage of students who were receiving free or reduced lunch and the percentage of students classified as a minority at each school. Those criteria are found to be adequate to represent schools with comparable demographic characteristics. Applying those criteria, 14 schools were determined to have “comparable populations” to Boston Avenue.
In the 14 elementary schools having comparable populations, an average of 13.3% of students of lowest quartile within FCAT level one or two made learning gains in 2011. At Boston Avenue, 10.7% of students in the lowest quartile within FCAT level one or two made learning gains in 2011. Thus, neither Boston Avenue nor the average of the comparator schools came close to meeting the “state minimum acceptable standard” that 50% of the lower quartile of students within level one or two make more than one year of improvement.
Although section III.B.(5) of the Charter set forth the state standard, it is not couched in language that would lend it to being applied as a Charter performance criterion. The fact that FCAT level one and two students at Boston Avenue and the comparative District schools were bunched closely in their levels of improvement, along with the incongruity of
applying a standard of performance to Boston Avenue that is not being met by District schools, suggests that the 50% threshold is to be applied as an aspirational goal, rather than a standard for renewal. Thus, Boston Avenue‟s failure to meet the “state minimum acceptable standard” set forth in section III.B.(5) of the Charter should not form a basis for non-renewal of the Charter.
3. Failure to Use State Approved Materials in Math
Section III.A.(3) of the Charter provides that Boston Avenue‟s “math curriculum will utilize a math series by Pearson/Scotts Foresman, or another math series approved by the State.”
Paragraph 2.b. of the Notice provides, in pertinent part, that “[Boston Avenue] is using the Saxon math series, which has not been approved by the State. This fact was pointed out to the administration at [Boston Avenue], but they indicated that they did not intend to make any change.”
Boston Avenue has used and continues to use the Saxon math series. The Saxon math series is not a math series by Pearson/Scotts Foresman. The State of Florida issues an annual list of approved publishers and materials. The Saxon math series is not on the state-approved list.
Mr. Viecelli and Mr. Jackson testified as to their belief in the effectiveness of the Saxon math series, and the
reasons for its purchase and use at Boston Avenue. Dr. Parker and others testified as to the Saxon math series incompatibility with the District‟s math curriculum map. Regardless of the arguments that can be made for or against the Saxon math series, the Charter is specific as to the math series to be used at Boston Avenue.
Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to use an approved math series in violation of Section III.A.(3) of the Charter.
4. Failure of the Student Transportation Service to Comply with State Regulations
Student transportation services relevant to this proceeding are set forth in Section V.E. of the Charter. That section provides, in pertinent part, that:
The transportation will be consistent with the requirements of section 1006.21 through 1006.27, Florida Statutes, as well as Florida State Board of Education Administrative Rules of Transportation section 6A-3.0001 [sic] through 6A-3.037, as may be amended from time to time.
* * *
All bus operators who have not obtained proper certification from the Sponsor shall not be allowed to transport any of the School's students. The School must also provide the Sponsor with documentation of the thirty (30) day bus inspection required by Florida Administrative Code Rule 6A- 3.0171. The Sponsor reserves the right to
inspect the School's buses at any time, with reasonable advance notice (usually 24 hours) so as not to disrupt the School's operation, unless exigent circumstances exist. Failure to comply with these provisions shall constitute "good cause" and the basis for termination of this charter contract.
Paragraph 2.c. of the Notice provides, in pertinent part, that:
The student transportation service operated by BACS has persistently failed to comply with state regulations. Each year, the District conducts evaluations of the charter schools in the district to monitor compliance with the charter and the law.
Each of the last three evaluations of BACS has noted serious violations in their student transportation service.
Boston Avenue has provided transportation for its students since the 2009-2010 school year. It maintains a fleet of five buses, three of which operate on Boston Avenue‟s three bus routes, and two of which were used as back-ups when needed.
The evidence demonstrates that Petitioner provided reasonable advance notice of its inspections as set forth in the Charter.
As a result of its October 2011 charter review, the School Board staff determined that Boston Avenue did not have medical emergency plans on its buses for five students who qualified as disabled under Section 504 of the Rehabilitation Act. A "504 Plan" describes the special conditions or non- medical care that a qualifying student may need while on the
bus. Thus, the contract provision was determined to be “not met.” By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue did not transport any qualifying students. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain medical emergency plans is not a sufficient basis for non-renewal of the Charter.
As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue‟s Bus Stop Safety Check forms were not correctly or completely filled out. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue‟s Bus Stop Safety Check forms were inspected with no errors noted. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain correct Bus Stop Safety Check forms is not a sufficient basis for non-renewal of the Charter.
As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue failed to meet contract provisions regarding its bus drivers, including requirements for current DHSMV driving history checks, verification of weekly DHSMV updates for one of its drivers, and timely completion of new Category IV driver clearance forms. In addition, the School Board‟s School Bus Operator Qualifications
Evaluation Worksheet indicated that two of Boston Avenue‟s bus operators did not have at least 40 hours of pre-service training, that three of the operators had deficiencies in their otherwise current medical examination certificates, and that the results of the operators‟ dexterity tests were not noted on their medical examination certificates, resulting in a performance level of 50%. The Performance Determination Worksheet instructed Boston Avenue to submit “a Corrective Action Plan” to remedy the deficiencies. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that “[a]ll operator records are in order and all are qualified to operate a school bus. The rating for the operators licensure/Qualifications review is 100% where a minimum of 95% is expected.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient basis for non- renewal of the Charter.
As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue‟s bus No. 9601 did not have a required seating chart onboard, and that bus No. 0356 did not have a required orange “No Students Left Onboard” sign in the back window. Mr. Viecelli indicated that the operator had taken the seating chart from the bus to update it on the day of the inspection, and had not yet returned it. He
further indicated that the chart was always on the bus when in use. At the time the “no students” sign deficiency was noted, Bus 0356 was the spare, and was not being used to transport students. When Bus 0356 was taken out of service, the manual, including the emergency packet and all of the instructions and signs used to maintain compliance with state and charter requirements, was moved by the driver to the in-service bus.
Boston Avenue has since created complete manuals for each of its five buses. By March 15, 2012, prior to the vote on non- renewal, the compliance charts were revised to indicate that “[s]chool buses were checked for a Route sheet, Student Listing, Seating Chart and Crash Management Packet. Each bus had the required documents.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient bases for non-renewal of the Charter.
The School Board alleged that, in 2009, Boston Avenue did not use its designated bus loop, and that buses stopped on the roadway behind the school without extending the bus “stop arms” while unloading students. The evidence demonstrates that this alleged deficiency was resolved long before the March 2012 vote on non-renewal, and that the contract provision was “met” as of the December 2011, Charter Review report. The alleged
failures set forth in this paragraph are not sufficient basis for non-renewal of the Charter.
The December 2011, Charter Review report indicated that the Charter provisions regarding School Bus Inspection Records were “partially met.” However, the report indicated that “[t]he rating for this review is 96.6% where a minimum of 95% is expected. The report indicated no significant or unresolved deficiencies. By March 15, 2012, prior to the vote on non-renewal, the status of the contract provision was changed to “met.” The alleged failure set forth in this paragraph is not sufficient basis for non-renewal of the Charter.
The School Board conducts “spot check inspections” of Boston Avenue‟s buses to monitor compliance operations and ensure compliance with applicable laws and regulations. As a result of deficiencies found during a spot-check inspection on March 15, 2012, the District requested that Boston Avenue bring its buses to the District facility for full inspection. The inspection revealed 26 total deficiencies; 15 of those deficiencies were repaired on the spot. Of the remaining deficiencies, three were the result of fluid leaks of one kind or another. Each of the leaks was minor, and did not cause the fluid levels in the respective reservoirs to drop below normal, making them difficult to locate. Boston Avenue had previously contracted with a mechanic who was to have repaired the leaks,
but was not successful. Boston Avenue changed mechanics, and the problems have been resolved.
The evidence demonstrates that all of the operational deficiencies related to Boston Avenue‟s transportation services noted in the October 2011, review were met before the School Board‟s vote on the renewal of the Charter.
The evidence demonstrates that Boston Avenue made substantial efforts to correct the fleet deficiencies, most of which were resolved before the School Board‟s vote on the renewal of the Charter.
Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that the deficiencies in Boston Avenue‟s provision of transportation services were so persistent or pervasive as to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes.
5. Failure of the Governing Board to Exercise Continuing Oversight Over the Operations of Boston Avenue
Paragraph 2.d. of the Notice provides that:
The governing Board for BACS has failed to exercise continuing oversight over the operations of the charter school. Section 1002.33(9)(i), Fla. Stat., requires that the “governing board of the charter school exercise continuing oversight over charter school operations.” Several instances establish that the governing board for BACS
failed to meet its obligations under that section of the statute.
The Charter contains no specific standards pertaining to the requisite degree of oversight necessary to establish compliance with section 1002.33(9)(i). Paragraphs VI.A.10. and
of the Charter require that Boston Avenue provide information to the School Board, including internal financial control policies and procedures and copies of internal audits and financial audits prepared by Boston Avenue or on its behalf. Boston Avenue complied with those requirements.
Failure to Properly Monitor Expenditures by the Management Company
Paragraph 2.d., bullet point one, of the Notice provides, in pertinent part, that “[t]he governing body has failed to properly monitor expenditures by its management company, School Management Solutions, Inc.”
School Management Solutions, Inc. ("SMS") is Boston Avenue's school management company. SMS is a contractor that provides payroll, finance, purchasing, human resources, and other services to Boston Avenue.
The Financial Services section of the December 2011, Review indicated that two of the 13 financial factors were “partially met,” with the remainder being met or not applicable.
As it pertains to the failure to properly monitor expenditures, the Notice cited the audit report, and noted the
purchase of “large dollar purchases by SMS prior to Boston Avenue Board approval.” The evidence indicated the expenditure to be for a school bus purchased for $6,500, which exceeded the limit of $5,000 for expenditures by SMS without Board approval. The Boston Avenue Board subsequently approved the expenditure. The audit also noted an SMS employee salary that was billed to Boston Avenue in addition to the SMS management fee. The SMS employee was the food services director, who worked at the school but whose salary was not included in the management fee.
The review report indicated that Boston Avenue responded to the School Board‟s Summary of Findings, and stated that:
The policy has been reviewed and reiterated with the school staff and management company. The Board has been advised to appoint a treasurer or liaison person to more thoroughly review the financial statements and monitor the budget.
There was no suggestion that Boston Avenue‟s response to the review report finding was determined to be inadequate, or that it would not resolve the issue.
Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that Boston Avenue‟s alleged failure to properly monitor expenditures by SMS was sufficient to constitute a basis for
non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes.
Conflict of Interest Resulting from the Management Company Appointing and Recommending Members of the Boston Avenue Board of Directors.
Paragraph 2.d., bullet point two, of the Notice provides, in pertinent part, that “[t]the governing board for BACS improperly permitted an official from [SMS] to appoint and recommend members of the Board of Directors, which represents a conflict of interest.”
The report of the independent auditors made the statement that “the management company (School Management Solutions, Inc.) has expressed the authority to appoint and recommend members of the [Boston Avenue] Board of Directors, which represents a conflict of interest.” (emphasis added). The report did not provide any detail as to how that expression was made, or by whom.
There was no other evidence to support the auditor‟s statement, nor was there any evidence that SMS actually appointed or recommended members of the Boston Avenue Board of Directors.
Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, a conflict of interest as alleged.
Failure to Conduct Employment History Checks.
Paragraph 2.d., bullet point three, of the Notice provides, in pertinent part, that “[SMS] has not been conducting the employment history checks required by statute before hiring an individual.”
The Notice specifically alleged, as the basis for non-renewal:
. . . that the required employment history check had not been conducted in the majority of the files reviewed. In a recent site visit, it was found that while a review of the files showed that they now contain a standard reference form, a review of those forms revealed that the majority of the references listed were personal references as indicated on their application, not previous employers as required by the statute. Instead, there was a standard statement - “all references gave positive reviews of the employee and recommend the company hire the employee.” (emphasis added).
The Notice did not allege other deficiencies in the employment screening process. Thus, deficiencies related to fingerprint records, criminal background checks, drug screening and the like were not pled as basis for the non-renewal of the Charter, and are not considered herein.
Section 1002.33(12)(g)4., provides that:
[b]efore employing instructional personnel or school administrators in any position that requires direct contact with students, a charter school shall conduct employment history checks of each of the personnel‟s or
administrators‟ previous employers . . . .
If unable to contact a previous employer, the charter school must document efforts to contact the employer.
Section 1002.33(12)(g)5. provides that “[t]he sponsor of a charter school that knowingly fails to comply with this paragraph shall terminate the charter under subsection(8).”
During the October 2011, site visit, the School Board representatives noted that the employee references were not in employee files. Ms. Paige-Pender testified that “there were not the required two phone references, a minimum of two phone references to the last two employers for each employee on file, which is required by Florida Statute.”2/
Mr. Jackson attributed the deficiency to a change in the law, which he understood to previously allow either personal or professional references, but which he believed to have been changed after the opening of Boston Avenue.
The Boston Avenue Charter was entered on June 24, 2008, and became effective on July 1, 2008. Section 1002.33(12)(g)4. was enacted in substantially its present form as chapter 2008-108, §14, Laws of Florida, and became effective on July 1, 2008. Thus, the suggestion that employment history checks were not required at the time the Charter was granted and the school was opened is unsupported and not accepted.
Mr. Jackson testified that upon being advised of the employment history check deficiency, Boston Avenue and/or SMS contacted each employee‟s professional references. Since there is no standard state form for documenting employment checks, SMS documented those checks on a form developed by SMS. Ms. Paige- Pender indicated that her review of the employment history forms demonstrated that many of the references were personal references, and that many employee files did not include information from past employers or documentation of efforts to contact the past employers. While the appearance of the form itself does violate the Charter or state law, Ms. Paige-Pender‟s testimony that the forms did not contain the information required was credible, and is accepted.
Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent or its agent failed to conduct employment history checks before hiring personnel or administrators, as alleged, and failed to make its employment history records current after notice of the deficiency.
6. Failure to be in Good Corporate Standing
Section X.A. of the Charter provides that Respondent “is a not for profit corporation formed and organized under the applicable laws of the state of Florida, and for the duration of
this charter shall take all actions necessary to maintain that status in good standing.”
Paragraph 2.e. of the Notice alleged that Boston Avenue failed to maintain its corporate standing under the laws of the state of Florida.
At the time of the October 2011, review, Respondent had been administratively dissolved by the Secretary of State, Division of Corporations for failure to file its annual report and fees.
On March 22, 2012, the corporate fees were paid, and Respondent was reinstated prior to the March 30, 2012, meeting of the Board at which the proposed non-renewal was considered and approved.
Section 607.1422(3), provides that “[w]hen the reinstatement [of an administratively dissolved corporation] is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.”
Based on the foregoing, it is found that the School Board failed to demonstrate by a preponderance of the evidence that Respondent‟s corporate standing was a valid basis for the non-renewal of the Charter.
7. Violation of Law in the Operation of Boston Avenue
Paragraph 3 of the Notice alleged that Respondent, or its agent, SMS, violated Florida law by failing to conduct employment history checks and by failing to maintain Boston Avenue in good-standing as a not-for-profit organization. Paragraph 3 of the Notice is a reiteration of the allegations contained in paragraph 2.d., bullet point three, and paragraph
2.e. of the Notice, and the findings as to this allegation are those set forth for those paragraphs above.
School Board Actions Impairing Performance
Respondent has argued that a history of “bad blood” existed between the Board and Boston Avenue that tainted the relationship, and potentially resulted in the artificial lowering of Boston Avenue‟s school grades. The evidence indicates that the Board and the District followed established procedures with regard to its actions, which included providing notice prior to conducting transportation inspections, and placing FCAT monitors into all classrooms of school that had received a grade of “F” for the preceding year. The evidence that the monitors acted inappropriately during the testing was not convincing, and in any event was not sufficient to establish that the presence of the monitors was so disruptive as to result in a decline in student performance in their FCAT testing.
Limitation on the Grounds for Non-Renewal
Respondent‟s argument that only items related to student safety may form the basis for non-renewal is not persuasive. The purpose of public schools, including charter schools, is to ensure the academic progress and achievement of their students. It was not outside of the scope of the School Board‟s authority to base its decision as to whether to renew the charter on the extent to which the goals for student performance and achievement established by the Charter were met. Ultimate Findings of Fact
The standards for academic performance set forth in the Charter were sufficient to allow the School Board to make a reasoned assessment as to whether criteria in the Charter regarding student performance and achievement were met during the period of operation. The evidence in this case demonstrates that Boston Avenue has failed, in virtually every measurable area, to keep pace with the educational standards of schools operated by the District. Respondent‟s failure to meet the standards for academic performance and achievement as set forth herein forms a reasonable basis for non-renewal of the Charter.
Except for Boston Avenue‟s failure to conduct timely and complete employment history checks, the basis for non- renewal identified as “other good cause shown,” either were not proven or would not, standing alone, constitute sufficient
grounds for non-renewal. As to the employment history checks, the School Board proved that violation of the charter and Florida statute, in combination with the other areas of non- compliance with the Charter, forms a reasonable basis for non- renewal of the Charter.
Based on the evidence and testimony as a whole, the School Board proved, by a preponderance of the evidence, that Boston Avenue failed to meet the criteria for renewal of its Charter, and that its proposed action to deny the renewal of the Charter was not in error.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to section 1002.33(8)(b)(2), Florida Statutes (2012).
Section 1002.33(7)(b)1. provides, in pertinent part, that:
A charter may be renewed provided that a program review demonstrates that the criteria in [the charter] have been successfully accomplished and that none of the grounds for nonrenewal established by paragraph (8)(a) has been documented.
Section 1002.33(8)(a) establishes the grounds for nonrenewal or termination of a charter and provides:
The sponsor may choose not to renew or may terminate the charter for any of the following grounds:
Failure to participate in the state's education accountability system created in
s. 1008.31, as required in this section, or failure to meet the requirements for student performance stated in the charter.
Failure to meet generally accepted standards of fiscal management.
Violation of law.
Other good cause shown.
Section 1006.22, Florida Statutes, provides, in pertinent part, that:
Each district school board shall designate and adopt a specific plan for adequate examination, maintenance, and repair of transportation equipment. Examination of the mechanical and safety condition of each school bus must be made as required pursuant to rule of the State Board of Education . . . .
The district school superintendent shall notify the district school board of any school bus that does not meet all requirements of law and rules of the State Board of Education, and the district school board shall, if the school bus is in an unsafe condition, withdraw it from use as a school bus until the bus meets the requirements. . . .
Section 1002.33(8)(a) establishes the requirements for notice of non-renewal or termination to be provided to a charter school, and provides, in pertinent part, that:
At least 90 days prior to renewing or terminating a charter, the sponsor shall notify the governing board of the school of the proposed action in writing. The notice shall state in reasonable detail the grounds for the proposed action and stipulate that the school‟s governing board may, within 14 calendar days after receiving the notice, request a hearing.
Section 1002.33(8)(b) further provides, in pertinent part, that:
The hearing shall be conducted at the sponsor‟s election in accordance with one of the following procedures:
* * *
2. A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings. The hearing shall be conducted within 60 days after receipt of the request for a hearing and in accordance with chapter 120. The administrative law judge‟s recommended order shall be submitted to the sponsor. A majority vote by the sponsor shall be required to adopt or modify the administrative law judge‟s recommended order. The sponsor shall issue a final order.
Section 120.57(1)(k) provides, in pertinent part,
that:
The presiding officer shall complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order. All proceedings conducted under this subsection shall be de novo. (emphasis added).
Based on a reading of sections 1002.33(8)(b) and 120.57(1)(k), the undersigned concludes that the review of the Board‟s action is de novo. It is well established that “a chapter 120 proceeding is a hearing de novo intended „to formulate final agency action, not to review action taken earlier and preliminarily.‟” Young v. Dep't of Cmty. Aff., 625 So. 2d 831, 833 (Fla. 1993)(citing McDonald v. Dep‟t of Banking
& Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977)).
The School Board has proposed the nonrenewal of Boston Avenue‟s charter based on specific allegations. Accordingly, the School Board has the burden of proving the allegations in the Notice of Action to Not Renew the Charter for the Volusia Elementary Charter School Inc. by a preponderance of the evidence. M.H. v. Dep't of Child. & Fam. Servs., 977 So. 2d. 755 (Fla. 2d DCA 2008).
The preponderance of the evidence standard “is defined as „the greater weight of the evidence,‟ . . . or evidence that „more likely than not‟ tends to prove a certain proposition.” Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000)(citations omitted). See also Haines v. Dep‟t of Child. & Fams., 983 So. 2d 602, 606 (Fla. 5th DCA 2008).
The allegations of fact set forth in the Notice of Action to Not Renew the Charter for the Volusia Elementary Charter School Inc. are the grounds upon which this proceeding
is predicated. Trevisani v. Dep‟t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep‟t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this proceeding is properly restricted to those matters as framed by Petitioner. M.H. v. Dep‟t of Child. & Fam. Servs., 977 So. 2d 755, 763 (Fla. 2d DCA 2008).
Timeliness of the Notice
In addition to the notice requirement established in section 1002.33(8)(a), cited above, section XI.C.(4) of the Charter provides that:
Notice of any renewal, non-renewal or termination of this charter shall be provided at least ninety (90) days prior to the expiration of the charter or termination of the charter, whichever is applicable, and shall be in accordance with the criteria set out in Section 1002.33(8), Florida Statutes. The School may, within thirty (30) days after receiving the Sponsor‟s decision to non-renew or terminate this charter, file an appeal with the State Board of Education as set forth in Section 1002.33(6), Florida Statutes, and associated administrative rules governing such procedure.
Although both section 1002.33(8)(b) and the Charter require notice of non-renewal to be provided at least 90 days prior to expiration of the Charter, neither specify a sanction if the notice period is fewer than 90 days.
“Florida law has long held that when an agency fails to meet procedural benchmarks, the delay must cause prejudice to
the party in order for the party to obtain dismissal.” Heshmati
v. Dep't of Health, 983 So. 2d 632, 634 (Fla. 5th DCA 2008).
The Florida Supreme Court has addressed the issue of whether the failure to comply with an administrative time constraint requires an agency to either take or forego action based solely on that failure in the absence of a specific legislative instruction.
In Department of Business Regulation, Division of
Pari-Mutuel Wagering v. Hyman, 417 So. 2d 671, 673 (Fla. 1982), the Supreme Court construed section 120.59(1), Florida Statutes, as it existed in its 1979 codification.3/ At that time, the section provided that:
The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
After the hearing is concluded, if conducted by the agency.
After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer, or
After the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing.
The 90-day period may be waived or extended with the consent of all parties.
In determining whether a final order entered after the “mandatory” 90-day period was enforceable, the Court held that:
Although section 120.59(1) says that final orders shall be rendered within 90 days, it does not specify any sanction for violation of the time requirement. . . . If the legislature had intended that untimely orders rendered in proceedings in which the agency is the protagonist would always be unenforceable, we believe that it would have included the necessary language in section 120.59(1) to impose such sanction as it did in other parts of chapter 120.
In view of the legislature's failure to provide a sanction for the untimely rendition of final orders, we read section 120.59(1) in conjunction with section 120.68(8). We have previously characterized this section as the harmless error rule for agency action.
We conclude that . . . although the 90-day period prescribed by section 120.59(1) is mandatory, the consequence of its violation should be determined by section 120.68(8). Applying this section in the present case, we hold that the untimely rendition of the final order did not result in the impairment of either the fairness of the proceedings or the correctness of the action and that Hyman was not prejudiced by the delay. (internal citation omitted).
Id. at 673.
In 1994, the Supreme Court revisited the issue of an agency‟s violation of “mandatory” time frames, reviewing the extent to which a violation of the investigatory time frames in section 455.255(3), Florida Statutes (Supp. 1986) required the
dismissal of an administrative complaint issued thereunder.4/ That section provided, in pertinent part, that:
A request for additional investigative information shall be made within 15 days from the date of receipt by the probable cause panel of the investigative report of the department. The probable cause panel or the department, as may be appropriate, shall make its determination of probable cause within 30 days after receipt by it of the final investigative report of the department. The secretary may grant extensions of the 15-day and 30-day time limits . . . . The department shall also refer to the board any investigation or disciplinary proceeding not before the Division of Administrative Hearings pursuant to chapter 120 or otherwise completed by the department within 1 year of the filing of a complaint.
In construing the effect of the statutory time limits, the Court held that:
Like the section 120.59(1)(a) time limit violated in Hyman, the section 455.225 time requirements at issue in this case are not accompanied by any sanctions for noncompliance. Consistent with our reasoning in Hyman, we believe that if the Legislature had intended the dismissal of administrative complaints in actions in which the Department or Board acted outside the time limits of section 455.225, the Legislature would have expressly included a sanction of dismissal within the statute.
Moreover, courts have consistently applied the harmless error rule when reviewing agency action resulting from a procedural error. (citations omitted).
Carter v. Dep't of Prof'l Reg., 633 So. 2d 3, 6 (Fla. 1994).
Respondent has not established that the delay of, at most, one day in delivering the Notice prejudiced it in any way in its ability to defend itself in this proceeding, or otherwise impaired either the fairness of the proceedings or the correctness of the action. As stated by the First District Court of Appeal in a comparable case:
Appellant's claim that a hearing pursuant to the administrative rule may have accorded him relief overlooks the ineluctable fact that he received such a hearing, which, while not complying with the procedural requirements of the rule, nonetheless gave him substantially the same opportunity to present evidence on his asserted entitlement to paid leave as he would have received had the Board itself filed the petition and noticed the dispute for hearing. Thus, the Board's failure to comply with the procedural requirements of the rule must be considered at most harmless error.
Ames v. Dist. Bd. of Trs., 908 So. 2d 1142, 1143-1144 (Fla. 1st DCA 2005).
For the reasons set forth herein, the undersigned concludes that the delivery of the Notice on April 2, 2012, was sufficient to provide fair and adequate notice to Respondent of the proposed action of the School Board and of its rights under section 1002.33(8), that Respondent is not entitled to any action by default as a result of the timeliness of the Notice, and that this case is properly before the undersigned for a decision on the merits.
Applicability of Section 1002.33(9) as a Renewal Criteria
Petitioner argues that the non-renewal of the charter is precluded by section 1002.33(9)(n)2.a., which provides as
follows:
If a charter school earns three consecutive grades of “D,” two consecutive grades of “D” followed by a grade of “F,” or two nonconsecutive grades of “F” within a 3-year period, the charter school governing board shall choose one of the following corrective actions:
Contract for educational services to be provided directly to students, instructional personnel, and school administrators, as prescribed in state board rule;
Contract with an outside entity that has a demonstrated record of effectiveness to operate the school;
Reorganize the school under a new director or principal who is authorized to hire new staff; or
Voluntarily close the charter school.
Petitioner asserts that, as a school receiving two nonconsecutive grades of “F” within a three-year period, the remedies applicable to it are limited to those set forth in sub- paragraphs (I) through (IV), which it implemented by removing Mr. Viecelli, and replacing him with a new director as set forth in sub-paragraph (III). Petitioner maintains that because non- renewal is not listed as a consequence of having two nonconsecutive grades of “F” within a three-year period, a
recommendation of that outcome based on the more general provisions of section 1002.33(8) would be in error.
In its analysis of the effect of section 1002.33(9)(n)2.a. on the action of the Board, Petitioner failed to consider section 1002.33(9)(n)6., which provides that “[n]otwithstanding any provision of this paragraph except sub- subparagraphs 4.a.-c., the sponsor may terminate the charter at any time pursuant to subsection (8).” Therefore, it was not an error for the Board to proceed under section 1002.33(8) to determine whether to renew the Charter.
Ultimate Conclusion of Law
Boston Avenue‟s failure to meet the requirements for student performance, math curriculum, and employment history checks as stated in the Charter establishes sufficient grounds for non-renewal pursuant to paragraph XI.C.(1) of the Charter, and the law referenced therein. Thus, the School Board satisfied its burden in this matter, and demonstrated that Boston Avenue's Charter should not be renewed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Volusia County School Board, enter a final order declining to renew the charter school agreement existing between it and Volusia Elementary Charter School, Inc., d/b/a Boston Avenue Charter School.
DONE AND ENTERED this 14th day of December, 2012, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2012.
ENDNOTES
1/ The Florida Comprehensive Assessment Test (“FCAT”) measures a student‟s content knowledge and skills in, among other areas, reading and math, and is aligned to the core curricular content established in the Next Generation Sunshine State Standards.
The test in reading and math is administered annually to students in grades three through ten to measure student progress toward meeting Sunshine State Standards. The test rates a student's achievement level on a scale of one to five. Level one represents an “inadequate” level of achievement; Level two represents a “below satisfactory” level of achievement; Level three represents a “satisfactory” level of success; Level four represents an “above satisfactory” level of achievement; and Level five demonstrates “mastery” of Sunshine State Standards.
§ 1008.22, Fla. Stat.
2/ Although section 1002.33(12)(g)4. does not specify the number of previous employers that must be contacted, the statute is couched in the plural - i.e., “previous employers,” supporting Ms. Paige-Pender‟s understanding and application of the provision.
3/ Section 120.59(1), Florida Statutes (1979) currently exists in substantially the same form as section 120.595(2)(l), Florida Statutes (2012).
4/ Section 455.225(3), Florida Statutes (Supp. 1986) currently exists in substantially the same form as section 455.225(4), Florida Statutes (2012).
COPIES FURNISHED:
Barbara C. Reid, Esquire Doran, Sims, Wolfe and Kundid Suite 100
1020 West International Speedway Boulevard Daytona Beach, Florida 32114
Brandon S. Peters, Esquire Peters Trial Group, LLC Suite 351
522 South Hunt Club Boulevard Apopka, Florida 32703-4960
Margaret A. Smith, Superintendent Volusia County School Board
200 North Clara Avenue Post Office Box 2118 Deland, Florida 32721
Lois Tepper, Interim General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 29, 2013 | Agency Final Order | |
| Dec. 14, 2012 | Recommended Order | The School Board met its burden to prove sufficient grounds for the non-renewal of Respondent's school charter. |
