STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, Petitioner, vs. CHAMPIONSHIP ACADEMY OF DISTINCTION AT DAVIE, INC. - 5422 D/B/A "CHAMPIONSHIP ACADEMY", Respondent. / | Case No. 19-4818 |
CHAMPIONSHIP ACADEMY OF DISTINCTION AT DAVIE, INC., Petitioner, vs. THE SCHOOL BOARD BROWARD COUNTY, FLORIDA, Respondent. | Case No. 19-5310RU |
FINAL ORDER
Pursuant to sections 120.569, 120.57(1), and 120.56(4), Florida Statutes (2019), Administrative Law Judge ("ALJ") Cathy M. Sellers, of the Division of Administrative Hearings ("DOAH"), conducted the final hearing in these consolidated proceedings on June 3 and 4, 2020, by Zoom Conference at locations in Fort Lauderdale and Tallahassee, Florida.
APPEARANCES
For Championship Academy: Jerry Tamayo, Esquire
Thomas B. Sternberg, Esquire Jeffrey Scott Wood, Esquire Tripp Scott, P.A.
110 Southeast Sixth Street, Fifteenth Floor Fort Lauderdale, Florida 33301
Stephanie Alexander, Esquire Tripp Scott, P.A.
200 West College Avenue, Suite 216
Tallahassee, Florida 32301
For Broward County
School Board: Robert Paul Vignola, Esquire Kathelyn Jacques-Adams, Esquire Office of the General Counsel of
The School Board of Broward County
600 Southeast Third Avenue, Eleventh Floor Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUES
(1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1
1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
PRELIMINARY STATEMENT
On August 20, 2019, the School Board2 voted to immediately terminate the Charter School Renewal Agreement with Championship. By letter dated August 22, 2019, the School Board notified Championship that it had immediately terminated its charter pursuant to section 1002.33(8)(c). On August 22, 2019, the School Board notified Championship in writing that its charter had been terminated. On August 30, 2019, Championship timely filed its Petition for Formal Administrative Hearing ("Immediate Termination Petition"), challenging the School Board's immediate termination of its charter. On September 11, 2019, the matter was referred to DOAH and assigned Case No. 19-4818. The final hearing was initially scheduled for December 17 through 20, 2019. On October 4, 2019, Championship filed its Petition to Invalidate Unadopted School Board Rules and Petition Seeking an Administrative Determination that School Board Rule is Void for Lack of Delegated Legislative Authority and/or for Contravening or Modifying Section 1006.12, Florida Statutes ("Rule Challenge Petition"). This matter was assigned Case No. 19-5310RU. Pursuant to the Order of Consolidation issued on October 21, 2019, these proceedings were consolidated for the purpose of conducting the final hearing and issuing a final order.
On December 10, 2019, the parties filed a Joint Motion for Continuance, which was granted. Pursuant to that motion, the parties were required to file a status report by January 31, 2020. On January 30, 2020, the parties filed a Joint Motion to Reset Final Hearing, which was granted. The final hearing was rescheduled for May 4, 5, and 6, 2020. On April 6, 2020, Championship filed a Motion for Continuance due to safety considerations related to the COVID-19 pandemic. The motion was granted and the hearing was
2 As used in this Final Order, the term "School Board" refers to the Broward County School Board, as the governing body of the Broward County Public Schools District, and, as pertinent, employees of the Broward County Public Schools District.
rescheduled for June 3, 4, and 5, 2020. Pursuant to a telephonic conference held on May 15, 2020, the parties agreed to conduct the hearing by Zoom Conference. The final hearing was held on June 3 and 4, 2020.
The parties' Joint Exhibits JE-1 through JE-6 were admitted into evidence. The parties also agreed to admit the depositions of Captain Jeremy Stone and Chief Dale Engle, without the attached exhibits, in lieu of in-person testimony at the final hearing.
The School Board presented the testimony of Leslie Brown, Brian Katz, Donte´ Fulton-Collins, Detra Adams, and Patricia Ravine. The following School Board exhibits were admitted into evidence without objection: Exhibit No. 1, subpart nos. 1 through 4; Exhibit No. 2, subpart nos. 1, 2, 5, 6, 9, 10,
and 13; Exhibit No. 3, and subpart nos. 1, 2, and 7 through 10; and Exhibit No. 4, and subpart nos. 1 and 2. The following School Board exhibits were admitted into evidence over objection: Exhibit No. 2, subpart nos. 3, 4, 7, 8,
11, and 12; and Exhibit No. 3, subpart nos. 3 through 6.
Championship presented the testimony of Anne-Valerie Daniel-Laveus, Sandra Acosta, Robert Runcie, Melissa Bustamante, and Cynthia Dotson. The following Championship exhibits were admitted into evidence without objection: Exhibit Nos. C-2, C-3, C-7 through C-9, C-17, C-20 through C-22,
C-24 though C-30, C-35, and C-36. The following Championship exhibits were admitted into evidence over objection: Exhibit Nos. C-1, C-4, C-5, C-19, C-23, C-31 through C-33, and C-37. Championship's Exhibit No. C-27, for which an authenticity objection originally had been raised, was withdrawn and replaced by corrected Exhibit C-27 filed on June 8, 2020, in a Notice of Filing. Championship Exhibit Nos. C-18, C-34, and C-38 were not tendered or admitted. The undersigned granted Championship's unopposed request for official recognition of Committee Substitute for Committee Substitute ("CS
for CS") for Senate Bill 7030 (2019) and the Senate committee and Senate floor vote history for that bill.3
At the conclusion of the final hearing, the parties agreed to extend the deadline for filing proposed final orders to June 29, 2020. The parties also agreed to waive the applicable statutory deadlines for issuance of the final order. Pursuant to the parties' request, the undersigned expanded the page limit for the proposed final orders to 75 pages.
The two-volume Transcript was filed with DOAH on June 16, 2020. The parties' proposed final orders were timely filed on June 29, 2020, and were duly considered in preparing this Final Order.
FINDINGS OF FACT
The Parties
Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4
Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5
3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12.
4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019.
5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and
In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat.
In this case, the School Board is the sponsor for Championship.
Stipulated Facts
At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years.
At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes.
The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019.
The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday,
120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54.
6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship."
August 16, 2019, and on Monday, August 19, through Thursday, August 22,
2019.
Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter.
On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus.
On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus.
On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard.
On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus.
A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019.
On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part:
We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will
provide you with what is being requested by the county.
Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie."
Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are."
School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019:
The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here.
Vignola stated the following during the School Board meeting on August 20, 2019:
If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate.
The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination."
School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do."
Vignola stated the following at the meeting of the School Board on August 20, 2019:
Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place.
At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019.
The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12.
School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School:
It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it.
Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance."
Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019.
The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year.
Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter.
The School Board referred Championship's request for hearing to DOAH on September 11, 2019.
Findings of Fact Based on Evidence at Final Hearing
Safe-School Officer Statute
In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings.
School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12
On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE.
The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019.
Championship did not provide the requested information by that date.
The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019.
On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting.
On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part:
[E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. .
. . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For
those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance.
On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action
to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type:
July 9, 2019, memorandum, Exhibit JE-4 (emphasis added).
From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7
The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019."
On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline.
7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution.
The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses.
Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools.
Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year.
Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year
On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian.
Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer.
On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019.
Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours."
The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019.
On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day.
On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus.
Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials.
Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone.
Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District.
Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days.
On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day.
Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone.
Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12.
At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department,
8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun.
requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3).
Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship.
In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days.
For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian.
Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract.
Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019.
On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later.
Article 2 of the SSO Agreement states, in pertinent part,
T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc.
Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours.
Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer.
Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates.
However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019.
Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic.
Other School Safety Measures Taken by Championship
Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff.
The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services.
Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities.
Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year.
Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019.
After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses.
After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program
9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter.
offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program.
Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic.
School Board's Immediate Termination of Championship's Charter
As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019.
At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter.
Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to
the health, safety, or welfare to Championship's students existed. As she put it:
[t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . .
There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue.
Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school.
To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be
coverage, not a contract that says there may be coverage."10
Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for
. . . assigning or establishing a safe school officer for every one of their schools."
10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019.
Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12
Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements.
Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship.
Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it:
11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so.
12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12.
all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students.
Fulton-Collins testimony, T. Vol. I, p. 192.
Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer."
Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them."
Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options
13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility.
must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12.
He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified:
[t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity.
Runcie testimony T., Vol. II, pp. 44-45.
Further to this point, Runcie testified:
It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple
14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is.
15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule).
avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that.
Runcie testimony, T. Vol. II, pp. 58-59.
The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c).
Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year
Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019.
Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at
Championship during that school year, testified that she observed a school security guard present at the school every day.
In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year.
Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened.
Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019.
Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility.
She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year.
As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and
for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year.
No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019.
Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019.
To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe.
Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students.
Championship's Standing
The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c).
Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate.
Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12.
Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter.
Findings of Ultimate Fact
Immediate Termination of Charter under Section 1002.33(8)(c)
Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students
Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter.
The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c).
However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason.
To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter.
To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students.
The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian.
Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers.
Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on
Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed.
However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students.
Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated.
Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019.
Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus.
Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger
As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students.
Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its
students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities.
Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c).
Unadopted Rules Applied to Championship to Terminate Charter
Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule."
This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule.
The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules.
Unadopted Rule Interpreting Section 1002.33(8)(c)
The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter.
In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students.
This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of
the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated.
Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students.
It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance.
16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat.
The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District.
Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule.
This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20).
The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated.
Unadopted Rule Interpreting Section 1006.12
The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17
Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute.
17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school.
This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance.
The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District.
Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule.
This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20).
The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter.
Alleged Unadopted Rules Challenged under Section 120.56(4)
Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules.
As articulated in the Rule Challenge Petition, these statements are:
"[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and
"[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having
their charters terminated." Each of these alleged unadopted rules is separately addressed.
Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District
The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18
As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language.
Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination
for failure to do so. .
The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability.
Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule.
18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12."
The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis.
Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers
Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated."
By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12.
The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute.
Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19
Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must
19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding.
establish and assign a safe-school officer to each charter school if the charter school so chooses.20
Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule.
The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
CONCLUSIONS OF LAW
DOAH has jurisdiction over these consolidated proceedings pursuant to sections 120.56(4), 120.569, 120.57(1), and 1002.33(8).
Pursuant to section 1002.33(8), the ALJ has final order authority in cases in which a school board has immediately terminated a charter school's charter pursuant to section 1002.33(8)(c).
Pursuant to section 120.56(4), the ALJ has final order authority in cases in which an agency statement is challenged as a rule that has not been adopted pursuant to the procedures in section 120.54.
Burden and Standard of Proof
Immediate Termination of Championship's Charter
In Case No. 19-4818, in which Championship challenges the School Board's immediate termination of its charter, the School Board has the burden to prove, by the clear and convincing evidence standard, that an immediate and serious danger to the health, safety, or welfare to Championship's students was in existence at the time of charter termination, warranting immediate termination under section 1002.33(8)(c). Manatee Cty.
20 Championship appears to have conflated its position that the School Board's interpretation of the phrase "collaborate to facilitate" is incorrect with its contention that the School Board's interpretation constitutes an unadopted rule.
Sch. Bd. v. Lincoln Mem. Acad., Case No. 19-4155 (Fla. DOAH Sept. 27, 2019).
The "clear and convincing evidence" standard of proof requires that the evidence must be found credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit; and the witnesses must be lacking in confusion as to the facts at issue. Further, the evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Unadopted Rule Challenge under Section 120.56(4)
In its Rule Challenge Petition filed pursuant to section 120.56(4), Championship alleges that the School Board applied two unadopted rules to terminate Championship's charter.
Championship has the burden to show, by the preponderance, or greater weight, of the evidence, that the alleged agency statements are unadopted rules. § 120.56(1)(e), Fla. Stat. (preponderance of the evidence applies to rule challenges under section 120.56); S.W. Fla. Water Mgmt. Dist.
v. Charlotte Cty., 774 So. 2d 903, 908 (Fla. 2d DCA 2001)(challenger bears burden of proof in unadopted rule challenge proceedings).
Applicable Statutes
Charter School Statute
Section 1002.33(8), titled "Causes for Nonrenewal or Termination of Charter," establishes the procedures and substantive standards applicable to a school board's termination of a charter school's charter, through the non- immediate termination process established in section 1002.33(8)(b), and the immediate termination process established in section 1002.33(8)(c).
In Case No. 19-4818, the School Board immediately terminated Championship's charter. Accordingly, section 1002.33(8)(c) applies to this proceeding. That statute states:
(c) A charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school’s students exists. The sponsor’s determination is subject to the procedures set forth in paragraph (b), except that the hearing may take place after the charter has been terminated. The sponsor shall notify in writing the charter school’s governing board, the charter school principal, and the department if a charter is terminated immediately. The sponsor shall clearly identify the specific issues that resulted in the immediate termination and provide evidence of prior notification of issues resulting in the immediate termination when appropriate. Upon receiving written notice from the sponsor, the charter school’s governing board has 10 calendar days to request a hearing. A requested hearing must be expedited and the final order must be issued within 60 days after the date of request. The sponsor shall assume operation of the charter school throughout the pendency of the hearing under paragraph (b) unless the continued operation of the charter school would materially threaten the health, safety, or welfare of the students. Failure by the sponsor to assume and continue operation of the charter school shall result in the awarding of reasonable costs and attorney’s fees to the charter school if the charter school prevails on appeal.
§ 1002.33(8)(c), Fla. Stat. (emphasis added).
Safe-School Officer Statute
Section 1006.12 sets forth the requirement for a safe-school officer to be assigned to each school in a school district, including charter schools, and identifies four options by which these schools can meet the safe-school officer requirement. The statute, as currently codified, states, in pertinent part:
1006.12 Safe-school officers at each public school.—
For the protection and safety of school personnel, property, students, and visitors, each district school
board and school district superintendent shall partner with law enforcement agencies or security agencies to establish or assign one or more safe- school officers at each school facility within the district, including charter schools. A district school board must collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available under this section. The school district may implement any combination of the options in subsections (1)-(4) to best meet the needs of the school district and charter schools.
SCHOOL RESOURCE OFFICER.—A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies.
School resource officers shall undergo criminal background checks, drug testing, and a psychological evaluation and be certified law enforcement officers, as defined in s. 943.10(1), who are employed by a law enforcement agency as defined in s. 943.10(4). The powers and duties of a law enforcement officer shall continue throughout the employee’s tenure as a school resource officer.
School resource officers shall abide by district school board policies and shall consult with and coordinate activities through the school principal, but shall be responsible to the law enforcement agency in all matters relating to employment, subject to agreements between a district school board and a law enforcement agency. Activities conducted by the school resource officer which are part of the regular instructional program of the school shall be under the direction of the school principal.
Complete mental health crisis intervention training using a curriculum developed by a national organization with expertise in mental health crisis intervention. The training shall improve officers’ knowledge and skills as first
responders to incidents involving students with emotional disturbance or mental illness, including de-escalation skills to ensure student and officer safety.
SCHOOL SAFETY OFFICER.—A school district may commission one or more school safety officers for the protection and safety of school personnel, property, and students within the school district. The district school superintendent may recommend, and the district school board may appoint, one or more school safety officers.
School safety officers shall undergo criminal background checks, drug testing, and a psychological evaluation and be law enforcement officers, as defined in s. 943.10(1), certified under the provisions of chapter 943 and employed by either a law enforcement agency or by the district school board. If the officer is employed by the district school board, the district school board is the employing agency for purposes of chapter 943, and must comply with the provisions of that chapter.
A school safety officer has and shall exercise the power to make arrests for violations of law on district school board property and to arrest persons, whether on or off such property, who violate any law on such property under the same conditions that deputy sheriffs are authorized to make arrests. A school safety officer has the authority to carry weapons when performing his or her official duties.
A district school board may enter into mutual aid agreements with one or more law enforcement agencies as provided in chapter 23. A school safety officer’s salary may be paid jointly by the district school board and the law enforcement agency, as mutually agreed to.
SCHOOL GUARDIAN.—At the school district’s or the charter school governing board’s discretion, as applicable, pursuant to s. 30.15, a school district or charter school governing board may participate
in the Coach Aaron Feis Guardian Program to meet the requirement of establishing a safe-school officer. The following individuals may serve as a school guardian, in support of school-sanctioned activities for purposes of s. 790.115, upon satisfactory completion of the requirements under
s. 30.15(1)(k) and certification by a sheriff:
A school district employee or personnel, as defined under s. 1012.01, or a charter school employee, as provided under s. 1002.33(12)(a), who volunteers to serve as a school guardian in addition to his or her official job duties; or
An employee of a school district or a charter school who is hired for the specific purpose of serving as a school guardian.
SCHOOL SECURITY GUARD.—A school district or charter school governing board may contract with a security agency as defined in s. 493.6101(18) to employ as a school security guard an individual who holds a Class “D” and Class “G” license pursuant to chapter 493, provided the following training and contractual conditions are met:
An individual who serves as a school security guard, for purposes of satisfying the requirements of this section, must:
Demonstrate completion of 144 hours of required training pursuant to s. 30.15(1)(k)2.
Pass a psychological evaluation administered by a psychologist licensed under chapter 490 and designated by the Department of Law Enforcement and submit the results of the evaluation to the sheriff’s office, school district, or charter school governing board, as applicable. The Department of Law Enforcement is authorized to provide the sheriff’s office, school district, or charter school governing board with mental health and substance abuse data for compliance with this paragraph.
Submit to and pass an initial drug test and subsequent random drug tests in accordance with the requirements of s. 112.0455 and the sheriff’s office, school district, or charter school governing board, as applicable.
Successfully complete ongoing training, weapon inspection, and firearm qualification on at least an annual basis and provide documentation to the sheriff’s office, school district, or charter school governing board, as applicable.
The contract between a security agency and a school district or a charter school governing board regarding requirements applicable to school security guards serving in the capacity of a safe- school officer for purposes of satisfying the requirements of this section shall define the entity or entities responsible for training and the responsibilities for maintaining records relating to training, inspection, and firearm qualification.
School security guards serving in the capacity of a safe-school officer pursuant to this subsection are in support of school-sanctioned activities for purposes of s. 790.115, and must aid in the prevention or abatement of active assailant incidents on school premises.
* * *
(6) EXEMPTION.—Any information that would identify whether a particular individual has been appointed as a safe-school officer pursuant to this section held by a law enforcement agency, school district, or charter school is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This subsection is subject to the Open Government Sunset Review Act in accordance with
s. 119.15 and shall stand repealed on October 2, 2023, unless reviewed and saved from repeal through reenactment by the Legislature.
If a district school board, through its adopted policies, procedures, or actions, denies a charter school access to any safe-school officer options pursuant to this section, the school district must assign a school resource officer or school safety officer to the charter school. Under such circumstances, the charter school’s share of the costs of the school resource officer or school safety officer may not exceed the safe school allocation funds provided to the charter school pursuant to s. 1011.62(15) and shall be retained by the school district.
Pertinent Provisions of Chapter 120
A "rule" is defined, in pertinent part, as "each agency statement of general applicability that implements, interprets, or prescribes law or policy."
§ 120.52(16), Fla. Stat.
An agency statement is any declaration, expression, or communication, and it does not need to be stated in writing. Dep't of High. Saf. & Motor Veh. v. Schluter, 705 So. 2d 81, 84 (Fla. 1st DCA 1997). A course of conduct that declares, expresses, or communicates an agency policy can constitute an agency statement. Fla. Quarter Horse Track Ass'n v. Dep't of Bus. & Prof'l Reg., 133 So. 3d 1118, 1119 (Fla. 1st DCA 2014) (affirming ALJ's determination that an agency policy manifested as a course of conduct is an "agency statement").
An agency statement of general applicability is one that purports to uniformly apply to a category or class of similarly-situated persons or activities, rather than just a single person or in singular situations. McCarthy v. Dep't of Ins., 479 So. 2d 135, 137 (Fla. 1st DCA 1985).
The definition of “rule” expressly includes statements that implement or interpret law. Thus, an agency’s interpretive reading of a statute that gives the statute meaning not readily apparent from a literal reading of its plain language, and which, by its own effect, purports to create rights, require compliance, or otherwise have the direct and consistent effect of law,
is a rule. State Bd. of Admin. v. Huberty, 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010).
Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." As discussed above, this provision prohibits the ALJ, and, as appropriate, the agency, from basing agency action that determines the substantial interests of a party on an unadopted rule.
Section 120.56(4) states, in pertinent part:
(a) Any person substantially affected by an agency statement that is an unadopted rule may seek an administrative determination that the statement violates s. 120.54(1)(a). The petition shall include the text of the statement or a description of the statement and shall state facts sufficient to show that the statement constitutes an unadopted rule.
* * *
If a hearing is held and the petitioner proves the allegations of the petition, the agency shall have the burden of proving that rulemaking is not feasible or not practicable under s. 120.54(1)(a).
* * *
The administrative law judge may determine whether all or part of a statement violates s. 120.54(1)(a). The decision of the administrative law judge shall constitute a final order.
* * *
If an administrative law judge enters a final order that all or part of an unadopted rule violates
s. 120.54(1)(a), the agency must immediately discontinue all reliance upon the unadopted rule or any substantially similar statement as a basis for agency action.
An unadopted rule is defined as "an agency statement of general applicability that meets the definition of the term 'rule,' but that has not been adopted pursuant to the requirements of s. 120.54."
An unadopted rule challenge presents the narrow question whether an agency has, by declaration, expression, or action, established a statement of general applicability that is a “rule,” as defined in section 120.52(16), without complying with the rulemaking procedures in section 120.54. Fla. Quarter Horse Track Ass’n., 133 So.3d at 1119. Thus, the sole issue in an unadopted rule challenge is whether the agency has interpreted a statute in such a manner that it gives the statute a meaning that is not readily apparent from a literal reading of its plain language, and whether that interpretation is generally applicable and purports to create rights, require compliance, or otherwise have the direct and consistent effect of law. Id.; Huberty, 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010).
To this point, the question whether an agency's interpretation of the statute is correct—i.e., a valid interpretation of the statute—is irrelevant in an unadopted rule challenge. Brandy's Prods., Inc. v. Dep't of Bus. & Prof'l Reg., Case No. 14-3496, ¶¶ 25-26 (Fla. DOAH Feb. 24, 2015)(the merit of the agency's interpretation is irrelevant to the question whether the agency statement meets the definition of "rule"), rejected in part on other grounds, Case No. 2015-05032 (Fla. DBPR Jun. 11, 2015); rev'd and remanded, Brandy's Prods., Inc. v. Dep't of Bus. & Prof'l Reg., 188 So. 3d 130 (Fla. 1st DCA 2016).21
Statements that are rules cannot be enforced against a party unless they are formally adopted pursuant to the rulemaking process established in section 120.54. Grabba-Leaf, LLC, v. Dep't of Bus. & Prof'l Reg., 257 So.3d 1205, 1208 (Fla. 1st DCA 2018). Thus, agencies may not lawfully apply unadopted rules to determine a party's substantial interests. Id.;
§ 120.57(1)(e)1., Fla. Stat.
21 Here, the parties have divergent views as to the meaning and requirements of section 1006.12. However, it is not necessary in this proceeding to determine which, if either, interpretation is correct, because that determination is not pertinent to the narrow question whether the alleged agency statements are unadopted rules.
Immediate Termination of Championship's Charter
Championship's Noncompliance with Section 1006.12 did not Present an Immediate and Serious Danger to Championship's Students
Section 1002.33(8)(c), which establishes the substantive standard and procedure applicable to a sponsor's immediate termination of a charter school's charter, states, in pertinent part: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school’s students exists." § 1002.33(8)(c), Fla. Stat. (emphasis added).
In School Board of Palm Beach County v. Survivors Charter School, Inc., 3 So. 3d 1220, 1233 (Fla. 2009), the Florida Supreme Court noted that the term "immediate," as used in the immediate termination provision in then-section 1002.33(8)(d),22 was not defined in the statute. The court relied on the dictionary definition of "immediate" to hold that the immediate termination provision in section 1002.33(8) applies only to emergency circumstances where the health, safety, or welfare of the students is threatened immediately—i.e., without interval of time. See id. at 1233-34.
As discussed above, the School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer, coupled with Championship's failure to have a fully-executed contract securing the services of a safe-school officer by August 20, 2019, per se constituted an immediate and serious danger to the health, safety, or welfare of its students.
However, this position disregards the plain language of section 1002.33(8)(c), which requires that the sponsor identify "the particular facts and circumstances" indicating that an immediate and serious danger to the
22 At the time Survivors Charter School was decided, the immediate termination provision of section 1002.33 was codified in section 1002.33(8)(d). The statute has since been amended, and the immediate termination provision is now codified in section 1002.33(8)(c).
health, safety, or welfare of the charter school's students exists at the time the charter is immediately terminated. § 1002.33(8)(c), Fla. Stat. (emphasis added). This language necessarily requires a school board to consider the particular facts and circumstances of any given case to determine whether, based on those particular facts and circumstances, an immediate and serious danger to the charter school's students exists in that specific case at the time a charter is terminated.
Further, the School Board did not present any evidence of particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019, as the result of Championship's failure to have, on its campus, a person who met the statutory qualifications for serving as a safe-school officer and its failure to have a fully-executed contract securing the services of a safe-school officer. As discussed above, the term "immediate" is defined as "occurring, acting, or accomplished without loss or interval of time," or "relating to the here and now." In other words, the danger must be in existence, here and now, and occurring without interval of time. The fact that some type of danger or threat potentially may come into existence at some point in the future does not meet the statute's clear requirement that the danger to the charter school's students must be occurring here and now—i.e., be in existence—to warrant immediate termination of the charter.
As noted above, the most that may be inferred from the evidence is that there may have been a potential threat to Championship's students as a result of Championship not having a qualified safe-school officer on campus on August 14 and 15, 2019. Such potential threat is insufficient to meet the statute's express requirement that the danger to the charter school's students be immediate—i.e., in existence at the time the charter was terminated.23
23 Prior to 2011, the immediate termination standard, then codified in section 1002.33(8)(d), only required the sponsor to determine that the health, safety, or welfare to the charter school's students was threatened. In 2011, the Legislature added the requirement that the sponsor set forth in writing the "particular facts and circumstances indicating that an
Furthermore, to the extent a potential threat or danger may have existed before a Davie police officer was present on Championship's campus, the potential for such threat or danger was substantially allayed by the presence of Carbone, who was hired specifically to provide safe school protection services for Championship's students, staff, and facility.
Moreover, beginning on August 16, 2019, a Davie police officer, who indisputably met the qualifications in section 1006.12 to serve as a school resource officer, provided safe-school services on Championship's campus for every school day thereafter, including August 20, 2019.24
Thus, as of August 16, 2019, the only basis for the School's Board's position that an "immediate and serious danger" existed on Championship's campus was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. As discussed above, there is no evidence showing that the failure to have a fully-executed contract for safe-school officer services on August 20, 2019, constituted an immediate and serious danger to Championship's students warranting immediate termination of its charter.
For these reasons, it is concluded that Championship's failure to have a safe-school officer present on its campus on August 14 and 15, 2019, and its failure to have a fully-executed contract guaranteeing the presence of a safe-
immediate and serious danger to" the health, safety, or welfare of the charter school's students "exists." The addition of this language, now codified in section 1022.33(8)(c), makes clear that there must be an actual and imminent danger to the charter school's students, not merely a potential threat of danger or harm.
24 The plain language of section 1002.33 requires that the sponsor set forth "the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." The word "exists" is used in present tense; thus, the facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students must exist at the time the charter is terminated, rather than having previously existed but subsequently having been alleviated. Therefore, even if the absence of a person qualifying as a safe-school officer on August 14 and 15, 2019, did constitute an immediate and serious danger to Championship's students—and there was no evidence showing that to be the case—that situation was alleviated by August 16, 2019, when Davie police officers began to provide safe-school officer coverage to the school.
school officer on August 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of Championship's charter.
Armed Security Guard did not Present Immediate and Serious Danger
As discussed above, the evidence did not demonstrate that the presence of an armed security guard (Carbone) who was hired by Championship to provide school safety and security services on August 14 through 16, 19, and 20, 2019, and who provided those services on those days, presented an immediate and serious danger to the health, safety, or welfare of Championship's students.
Therefore, it is concluded that Carbone's presence on Championship's campus did not constitute an immediate and serious danger to Championship's students on August 20, 2019, or on any days prior to August 20, 2019, warranting the immediate termination of Championship's charter under section 1022.33(8)(c).
Section 790.115(2) is not a Basis for Immediately Terminating Championship's Charter
Neither the School Board nor the ALJ have the authority to determine whether Carbone's conduct in carrying a firearm on Championship's campus to provide school security services for which he specifically was hired to provide constituted a violation of section 790.115(2).
Section 790.115, titled "possessing or discharging weapons or firearms at a school-sponsored event or on school property prohibited; penalties; exceptions," criminalizes the possession of certain weapons, including firearms, on the grounds or facilities of any school, except as authorized in support of school-sanctioned activities. § 790.115(1), Fla. Stat.
Section 790.115(2)(a) states, in pertinent part: "[a] person shall not possess any firearm, except as authorized in support of school-sanctioned activities . . . on the property of any school."
Florida case law holds that absent an actual adjudication of guilt by a court of competent jurisdiction, an agency is not authorized to determine that a
person's conduct violates a criminal statute. Rifkin v. Fla. Real Estate Comm'n, 345 So. 2d 349, 351 (Fla. 4th DCA 1977)(agency does not have the authority to determine whether conduct violates a criminal statute—i.e., constitutes a crime).
Here, no evidence was presented that Carbone was ever adjudicated guilty of—or even charged with—violating section 790.115(2). Thus, there is no basis in law or fact for immediately terminating Championship's charter on the ground that it, or Carbone, violated section 790.115(2).
Moreover, Carbone was hired by Championship specifically to provide school security services during the school day, and he was given express permission by Championship's governing board to bear a firearm on its campus in the performance of those services. Thus, he was authorized to possess a firearm on Championship's campus in support of its school-sanctioned activities. See Op. Att'y Gen. Fla. 2014-13 (2014)(opining that an entity that operates and controls a public school has the authority to determine the types of activities that are considered "in support of an approved school-sanctioned activity," and to authorize an individual to possess a weapon on school property in support of those activities).
For these reasons, it is concluded that the presence, on Championship's campus, of an armed security guard who was hired for the specific purpose of providing, and who provided, school security services for Championship during the school day on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to the health, safety, or welfare of Championship's students, warranting immediate termination of its charter.
School Board Applied an Unadopted Rule Interpreting Section 1002.33(8)(c) to Immediately Terminate Championship's Charter
As discussed above, the School Board interprets section 1002.33(8)(c) to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students.
This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of that statute. As discussed above, the statute's plain language requires that the facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger existing at the time the school's charter is immediately terminated. The statute does not speak to or authorize a school board to categorically determine that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students.
Additionally, the School Board's interpretation of section 1002.33(8)(c) requires a charter school to either comply with section 1006.12, or face having its charter immediately terminated on the basis of such noncompliance. Thus, the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law.
Additionally, the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District.
Therefore, it is concluded that the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 constitutes a per se immediate and serious danger to the health, safety, or welfare of the charter school's students, is a rule.
This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20).
The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship's students was in existence on August 20, 2019, warranting immediate termination of its charter.
As discussed above, statements that are rules cannot be enforced against a party unless they are formally adopted pursuant to the rulemaking process established in section 120.54. Agencies may not apply an unadopted rule to determine a party's substantial interests. § 120.57(1)(e)1., Fla. Stat.; Grabba-Leaf, LLC, 257 So. 3d at 1208.
Neither the School Board nor the undersigned, as the entity issuing the Final Order in this proceeding, is authorized to apply this unadopted rule to determine that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on August 20, 2019—or on any dates before August 20, 2019—justifying the immediate termination of Championship's charter pursuant to section 1002.33(8)(c).
School Board Applied an Unadopted Rule Interpreting Section 1006.12 to Immediately Terminate Championship's Charter
As discussed above, the School Board interprets section 1006.12 as requiring a charter school to have a fully-executed contract with an appropriate safe-school officer entity guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.
Nowhere in the plain language of section 1006.12 is there stated a requirement that a charter school must have a fully-executed contract guaranteeing safe-school officer services in order to be comply with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from a literal reading of that statute.
The School Board's interpretation of section 1006.12 also requires compliance and has the direct and consistent effect of law. Specifically, a charter school is required to have a fully-executed contract for a safe-school officer fully executed by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance.
The School Board also uniformly applies this interpretation of section 1006.12 to all charter schools in the District.
Accordingly, it is concluded that the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time school is in session, a fully-executed contract with an appropriate entity guaranteeing that a safe-school officer will be on campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as a rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20).
The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter.
Neither the School Board nor the undersigned, as the entity issuing the Final Order in this proceeding, is authorized to apply this unadopted rule to determine that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on August 20, 2019, or on any dates before August 20, 2019, justifying the immediate termination of Championship's charter pursuant to section 1002.33(8)(c).
Unadopted Rules Challenged under Section 120.56(4)
The School Board contends that it is not required, under section 1006.12, to establish or assign safe-school officers to charter schools in the District, and that the sole responsibility for securing a safe-school officer for a charter school rests with the charter school. Championship counters that the School Board's interpretation of section 1006.12 constitutes two unadopted rules.
Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District
The School Board takes the position that, with very limited exception, it is not required under section 1006.12 to establish or assign safe-
school officers to charter schools in the District, so that charter schools are solely responsible for securing their own safe-school officers.
Section 1006.12 states, in pertinent part:
§ 1006.12, Fla. Stat. (emphasis added).
The plain language of the statute's first sentence requires the school board to establish or assign safe-school officers at each school in the district, including charter schools. Even when read with the second and third sentences of the statute, it is clear that the first sentence establishes a mandate to school districts that they are ultimately responsible for assigning officers at all schools in the district, including charter schools.25
In support of its position, the School Board contends that the flush- left language in section 1006.12(6) limits the applicability of the first sentence in section 1006.12. This provision states:
25 The second and third sentences of section 1006.12 make clear that charter schools have the flexibility to choose which safe-school officer option in subsections (1) through (4) works best for their circumstances, and that the school district is to provide assistance to them in doing so. However, the first sentence of the statute is the "default" situation, under which the school board is ultimately responsible for assigning a safe-school officer to a charter school, if the charter school so chooses. Under that circumstance, the school board would receive the charter school's safe school allocation under section 1011.62(15).
If a district school board, through its adopted policies, procedures, or actions, denies a charter school access to any safe-school officer options pursuant to this section, the school district must assign a school resource officer or school safety officer to the charter school. Under such circumstances, the charter school’s share of the costs of the school resource officer or school safety officer may not exceed the safe school allocation funds provided to the charter school pursuant to s. 1011.62(15) and shall be retained by the school district.
§ 1006.12(6), (Fla. Stat)(emphasis added).
The School Board interprets the term "denies" in subsection (6)
to apply only when it actively prevents a charter school from securing a safe- school officer. Thus, the School Board contends that only when it has actively prevented a charter school from securing a safe-school officer is it required, under the first sentence of section 1006.12, to establish or assign a safe- school officer to a charter school.
The term "deny" has multiple meanings. It is variously defined as "to refuse to agree or accede to"; "to withhold the possession, use, or enjoyment of"; or "to withhold something from"26; or "to refuse to grant."27 Here, the School Board has selected and applied one of multiple definitions of that term28 in implementing section 1006.12, and in doing so, has given a meaning to the statute that is not apparent from a literal reading of its plain language.
Furthermore, the School Board's interpretation of section 1006.12 places an implicit limitation or restriction on the applicability of the express, unequivocal mandate in the first sentence that "each district school board and school district superintendent shall partner with law enforcement
26 Dictionary.com, https://www.dictionary.com/browse/deny (last visited July 23, 2020).
27 Dictionary by Merriam-Webster, https://www.merriam-webster.com/dictionary/deny last visited July 23, 2020).
agencies or security agencies to establish or assign one or more safe-school officers at each school facility, including charter schools." § 1006.12, Fla. Stat. The School Board's interpretation ascribes a meaning to the statute that is not apparent from a literal reading of its plain language.
Additionally, the School Board's interpretation of section 1006.12 requires compliance and has the force and effect of law. It requires charter schools to secure their own safe-school officers, with the consequence that not doing so will result in charter termination.
The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability.
Therefore, it is concluded that the School Board's position that it is not required to establish and assign safe-school officers to charter schools, except when it affirmatively has prevented a charter school from securing a safe-school officer, is an unadopted rule.
The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship to be not in compliance with section 1006.12, and immediately terminating its charter on that basis.
Alleged Unadopted Rule Regarding School Board Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers
Championship also alleges that the School Board has a policy of "failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated."
By couching the agency statement in these terms, Championship effectively alleges that, by not establishing and assigning safe-school officers
28 It appears that the School Board has chosen a definition of "deny" that entails the active
refusal to grant a safe-school officer.
to charter schools, the School Board has a policy of failing to collaborate with charter schools, in violation of the second sentence of section 1006.12.
However, rather than having a policy of "failing to collaborate"— which would entail a purposeful choice by the School Board to ignore the statutory mandate to collaborate with charter schools—the evidence shows that instead, the School Board interprets the phrase "collaborate to facilitate" to mean something different than Championship interprets that phrase to mean.
Specifically, the School Board interprets that phrase to mean engaging in exactly the types of activities in which it did in this case: sending letters and memoranda to charter schools regarding the requirements of, and options under, section 1006.12; holding workshops to inform charter schools regarding the requirements section of 1006.12; requesting charter schools to document their compliance with the statute; and reminding them of the need to comply with the statute by a specified deadline.29
Championship disputes this interpretation, and contends that this phrase means that the School Board must establish and assign a safe school officer to each charter school.
Without deciding which, if either, of the parties' interpretations of section 1006.12 is correct, the evidence does not establish that the School Board has a policy—i.e., a statement of general applicability—of "failing to collaborate" with charter schools to facilitate their access to safe-school officers. Rather, as discussed above, the evidence merely establishes that the School Board interprets section 1006.12 in a manner that, in Championship's view, is incorrect.
29 The evidence shows that the School Board interprets the phrase "collaborate to facilitate charter school access" to all safe-school officer options to mean that all it needs to do is exactly what it did in this case—communicate with them regarding the requirements of section 1006.12, rather than take any active steps to assist them in securing a safe-school officer under any of the options in sections 1006.12(1) through (4). However, Championship did not allege that this interpretation of "collaborate" was an unadopted rule in its challenge under section 120.56(4).
Accordingly, it is concluded that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule.
Championship's Standing
Immediate Termination under Section 1002.33(8)(c)
Championship is a named party whose substantial interest is being determined in Case No. 19-4818. Accordingly, Championship has standing to challenge the School Board's action to immediately terminate its charter.
§§ 120.52(13)(a), 120.569(1), Fla. Stat.; § 1002.33(8)(c), Fla. Stat.
Standing to Challenge Unadopted Rule under Section 120.56(4)
Section 120.56(4) states: "[a]ny person substantially affected by an agency statement that is an unadopted rule may seek an administrative determination that the statement violates s. 120.54(1)(a)."
Case law establishing the "substantially affected" test for standing to challenge rules applies to all types of rule challenges, and does not draw a distinction, for standing purposes, between a proposed rule, an existing rule, and an unadopted rule. Thus, if a person or entity is able to show that he/it is substantially affected by a rule—regardless of whether the rule is proposed, existing, or unadopted—then that person or entity has standing to challenge the rule.
As discussed above, here, the School Board has applied the unadopted rules articulated in the rule challenge petition as the basis for not establishing or assigning a safe-school officer to Championship's campus for the 2019-2020 school year. As the result of the application of these unadopted rules, Championship was required to obtain a safe-school officer on short notice, and was unable to do so before the beginning of the school year on August 14 and 15, 2019—a circumstance that ultimately led the School Board to take action to immediately terminate its charter. As such, Championship is substantially affected by the unadopted rules that it has challenged in Case No. 19-5310RU.
The School Board argues that Championship does not have standing to challenge the alleged agency statements as unadopted rules because it has opted out of being subject to the school board's policies, pursuant to section 1002.33(5)(b)1.d. Thus, the School Board reasons, even if the alleged agency statements are rules, those statements are of "no force and effect as to Championship."
However, this argument ignores that the School Board applied30 one or more alleged agency statements31 to Championship, and, as a result, did not assign a safe-school officer to Championship's campus for the 2019-2020 school year. The application of these unadopted rules to Championship ultimately led to its charter being immediately terminated.
Because the School Board applied unadopted rules to Championship, it is substantially affected by those rules and, therefore, has standing to challenge them. See Cole Vision Corp. v. Dep't of Bus. & Prof'l Reg., 688 So. 2d 404 (Fla. 1st DCA 1997); Televisual Commc'ns , Inc. v. Dep't of Labor & Emp't Sec., 667 So. 2d 372 (Fla. 1st DCA 1995); Prof'l Firefighters of Fla. v. Dep't of HRS, 396 So. 2d 1194 (Fla. 1st DCA 1981)(holding that a person has standing, as a substantially affected person, to challenge a rule that the agency applies to him or her as the basis for its agency action).
30 The fact that Championship has opted out of being subject to the School Board's policies, so that it would not be subject to the agency statements if they were adopted as rules, is beside the point. Here, they have not been adopted as rules, and, as discussed above, the School Board did apply them to Championship. If, assuming arguendo, the School Board adopted a rule providing that it would not establish or assign a safe-school officer to charter schools, pursuant to section 1002.33(5)(b)1.d.,that rule would not apply to Championship unless the School Board and Championship otherwise mutually agreed.
31 As discussed above, Championship prevailed on the merits in its unadopted rule challenge with respect to one of the two agency statements it identified in its Rule Challenge Petition. That Championship did not prevail on the merits regarding one of the alleged unadopted rules it challenged does not negate its standing to challenge these statements as unadopted rules. See Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So. 3d 1079, 1084 (Fla. 2d DCA 2009)(holding that failure to prevail on the merits in an administrative challenge proceeding does not retroactively eliminate standing).
For these reasons, it is concluded that Championship is substantially affected by the alleged unadopted rules challenged under section 120.56(4), and, thus, has standing in Case No. 19-5310RU.
Conclusion
The undersigned is mindful of the challenges the School Board faces in ensuring that charter schools are compliant with section 1006.12, particularly given the history regarding school safety-related matters in the District.
As noted above, the undersigned also understands (and agrees with) Superintendent Runcie's point that section 1006.12 was written flexibly to allow each school district to apply that statute in a manner that best fits its particular circumstances.
To that point, this Final Order does not determine whether the School Board is legally authorized to interpret section 1006.12 as it has in these proceedings; it only determines that if the School Board is going to interpret and enforce section 1006.12 as it has in these proceedings, it must adopt its interpretation by rule pursuant to section 120.54. See § 1001.41(2), Fla. Stat.
Attorney's Fees
Championship has requested, in its Immediate Termination Petition, Rule Challenge Petition, and Proposed Final Order, that it be awarded attorney's fees and costs in these proceedings.
Championship does not cite, in its Immediate Termination Petition, the specific statute under which it seeks an award of attorney's fees and costs in Case No. 19-4818.
In its Rule Challenge Petition, Championship cites section 120.595(4) as the basis for an award of attorney's fees and costs in Case No. 19-5310RU.
As the prevailing party in both cases, Championship may be entitled to an award of attorney's fees and costs, provided it demonstrates the legal and factual bases for such award.
Therefore, Championship has 60 days from the date of this Final Order in which to file a motion for attorney's fees and costs, identifying the specific statutory authority for the request for such fees and costs, and providing supporting documentation showing entitlement to such fees and costs, including, but not limited to: documentation that the 30-day notice required by section 120.595(4)(b) was provided to the School Board; appropriate affidavits, such as those attesting to the reasonableness of the fees sought; and other documentation, such as timesheets, bills, and receipts, supporting the claim for attorney's fees and costs.
If such motion is filed, the School Board will have 30 days in which to file a response in opposition, disputing Championship's legal and/or factual entitlement to an award of attorney's fees and costs, and/or disputing the amount of attorney's fees and costs sought by Championship.
If this Final Order is appealed pursuant to section 120.68, the timeframe set forth above for filing a motion for attorney's fees and costs is tolled pending resolution of the appeal.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
The Charter School Agreement between the School Board of Broward County, Florida, and Championship Academy of Distinction at Davie, Inc., dated April 5, 2016, is reinstated.
Jurisdiction is retained for the purpose of determining an award of attorney's fees and costs, as provided in section VII., above.
DONE AND ORDERED this 31st day of July, 2020, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
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 31st day of July, 2020.
COPIES FURNISHED:
Robert Paul Vignola, Esquire Office of the General Counsel School Board of Broward County 600 Southeast Third Avenue,
Fort Lauderdale, Florida 3330111th Floor (eServed)
Stephanie Alexander, Esquire Tripp Scott, P.A.
200 West College Avenue, Suite 216
Tallahassee, Florida 32301 (eServed)
Jerry Tamayo, Esquire Tripp Scott, P.A.
110 Southeast Sixth Street, 15th Floor Fort Lauderdale, Florida 33301 (eServed)
Jeffrey Scott Wood, Esquire Tripp Scott, P.A.
110 Southeast Sixth Street, 15th Floor Fort Lauderdale, Florida 33301
Kathelyn Jacques-Adams, Esquire
The School District of Broward County, Florida 11th Floor, Suite C-323
600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed)
Thomas B. Sternberg, Esquire Tripp Scott, P.A.
Southeast Sixth Street
Fort Lauderdale, Florida 33301 (eServed)
Robert Runcie, Superintendent
The School Board of Broward County, Florida 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Ken Plante, Coordinator
Joint Administrative Procedures Committee Room 680, Pepper Building
West Madison Street Tallahassee, Florida 32399-1400 (eServed)
Ernest Reddick, Program Administrator Anya Grosenbaugh
Florida Administrative Code & Register Department of State
R.A. Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed)
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 31, 2020 | DOAH Final Order | School board formulated and relied on an unadopted rule as the basis to immediately terminate a charter school's charter. |
