STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

On May 18 through 22, and 26, 2020, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division), conducted a duly-noticed hearing utilizing the Zoom web-conference platform.

APPEARANCES

For Petitioner: Debra S. Babb-Nutcher, Esquire

Catherine T. Hollis, Esquire

Garganese Weiss D'Agresta & Salzman, P.A. 111 North Orange Avenue, Suite 2000

Orlando, Florida 32801

For Respondent: Christopher Norwood, J.D.

Governance Institute for School Accountability 14844 Breckness Place, Suite 100

Miami Lakes, Florida 33016

STATEMENT OF THE ISSUE

Whether Respondent Legacy Academy Charter, Inc.’s (Legacy) school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in Petitioner the School Board of Brevard County’s (School Board or the Sponsor) November 20, 2019, 90-Day Notice of Proposed

Termination of Charter, pursuant to section 1002.33(8)(b), Florida Statutes (2019).

PRELIMINARY STATEMENT

At a duly-noticed meeting on November 19, 2019, and after hearing public comment, the School Board voted to terminate the First Amended Charter School Agreement between it and Legacy (Amended Charter), executed on September 11, 2018. On November 20, 2019, pursuant to section 1002.33(8)(b), Brevard County Superintendent of Schools, Mark W. Mullins, Ed.D., on behalf of the School Board, issued a Notice of Proposed Termination of the Charter Contract Between The School Board of Brevard County and Legacy Academy Charter Inc. (Termination Notice).

The Termination Notice identified statutory and contractual grounds for the termination of the Amended Charter, referring to section 1002.33(8)(a) and various provisions of the Amended Charter, including the preamble— which referenced the circumstances concerning the original charter and the basis for entering into the Amended Charter—as well as notice and procedural requirements for termination, and the opportunity to cure defaults. The Termination Notice listed 54 official notices that the School Board provided to Legacy for alleged defaults of the original charter and the Amended Charter. The Termination Notice also provided the specific grounds for termination of the Amended Charter, as follows:

The Sponsor proposes to terminate the Charter Contract between the parties due to the following:

1. Evidence of the School’s failure to meet academic achievement and requirements of student performance under Section 1002.33(2), F.S., 1002.33(7)(a)(4), F.S., Section 1002.33(8)(a)(1), F.S. and Sections (2) and 9(C) of the Amended Charter;

2. The School failed to provide evidence that it complied with all applicable laws, ordinances, and codes of federal, state, and local governance including, without limitation, the Individuals with Disabilities Education Act (IDEA) as referenced in Rule 6A-6.030191(4)(d) and Rule 6A-6.030191(7), Florida Administrative Code, Sections 1002.33(2), 1003.571(1)a and 1002.33(16)(a)3, F.S., and Section 3(J) of the Amended Charter[;]

   
   

3. The School failed to provide evidence that it meets generally accepted standards of fiscal management and/or willfully or recklessly failing to manage public funds in accordance with the law and promote enhanced academic success and financial efficiency by aligning responsibility with accountability as set forth in Rule 6A-1.0081, Florida Administrative Code, Section 218.503, F.S., Section 1002.33(9), F.S., Section 1002.33(7)(a)(9), F.S., Section 1002.33(2)(a), F.S., Section 1002.345(1)(a)(3), F.S., and Sections 4(H), 4(G)(3)(a) and 9(A) of the Amended Charter;

   
   

4. Evidence of the School’s failure to comply with background screening and other requirements set forth in Chapter 1012, F.S., Sections 1002.33(12)(g), F.S., 1012.32, F.S., 1012.465, F.S., 1012.467, F.S., and 1012.468, F.S. and Section 10(I and J) of the Amended Charter, and failing to comply with statutes concerning student health, safety, and welfare pursuant to Section 1002.33(16)(a)(5); and

   
   

5. The School failed to provide evidence that it complied with law and/or cured material breaches of terms or conditions of the Charter Contract after receiving the District’s written notice of noncompliance and promote enhanced success and financial efficiency by aligning responsibility with accountability as set forth in Section 286.011, F.S., Sections 1002.33(2), F.S., Section 1002.33(7), F.S., 1002.33(9)(c), F.S., Section 1002.33(12)(f), F.S., 1002.33(16)(b)(1), F.S., Section 1012, F.S., and

Sections 1(D)(1)(d)(i), 10(C) and 12(F) of the Amended Charter.

Legacy timely filed a Petition for Administrative Hearing on December 3, 2019, which was forwarded to the Division on December 5, 2019. After conducting a telephonic status conference, the undersigned set this matter

for final hearing for March 2 through 4, and 6, 2020, in Titusville, Florida. On February 12, 2020, Legacy filed an Opposed Motion to Continue with Good Cause, which the School Board opposed. After conducting a telephonic hearing on February 17, 2020, the undersigned entered an Order Denying Respondent’s Motion to Continue and Requiring Joint Status Update. On February 21, 2020, Legacy filed a Motion to Reconsider Denial of Continuance, citing numerous medical issues with Legacy’s founder, school principal, and party representative, Charlene Montford. The undersigned conducted a telephonic hearing on that same date, and on February 26, 2020, entered an Order Granting Respondent’s Motion to Continue, Rescheduling Hearing, and Requiring Status Conferences. The undersigned rescheduled this matter for final hearing for May 18 through 21, 2020, in Titusville, Florida, and scheduled telephonic status conferences for March 27, 2020, and April 24, 2020.

Leading up to the final hearing, the parties engaged in vigorous discovery and motion practice. The School Board began serving various discovery requests starting January 17, 2020, and on February 28, 2020, filed motions to compel. On March 10, 2020, the undersigned entered an Order that granted, in part, these motions to compel, and provided Legacy with additional time to respond to pending discovery. On March 12, 2020, the School Board filed a Notice of Production from Non-Party, which Legacy opposed in a response filed March 25, 2020. Additionally, Legacy filed an Emergency Opposed Motion of Continuance and Emergency Opposed Motion to Extend Discovery on March 20, 2020, which requested a continuance of the

final hearing and an extension of discovery, due to the impacts of the Coronavirus (Covid-19). On March 20, 2020, the undersigned entered an Order requesting that the parties be prepared to discuss, at the March 27, 2020, telephonic status conference, any critical deadlines that may be relevant to the consideration of a continuance.

On March 26, 2020 (the day before the first of the two pre-hearing telephonic status conferences), the parties filed the following pleadings: Petitioner’s Opposition to Respondent’s Emergency Motion for Continuance and Emergency Opposed Motion to Extend Discovery; Petitioner’s Motion for Sanctions for Failure to Comply With Order Compelling Discovery; Respondent’s Motion for Protective Order; and Respondent’s Response to Petitioner’s Motion for Sanctions for Failure to Comply with Order Compelling Discovery and Request for Fees. After the telephonic status conference on March 27, 2020, the undersigned entered, on March 30, 2020, an Order on Pending Pleadings, which: (a) denied Legacy’s request to continue the final hearing; (b) granted Legacy an extension (until April 13, 2020) to respond to all outstanding discovery; (c) denied the School Board’s motion for sanctions; (d) directed the parties to mutually agree to schedule the deposition of Legacy’s corporate representative and encouraged the parties to utilize available technology and review In re: COVID-19 Emergency Procedures for Administering Oaths Via Remote Audio-Video Communication Equipment, No. AOS20-16 (Fla. Mar. 18, 2020).

Additionally, on March 27, 2020, the undersigned issued an Order on Petitioner’s Notice of Production from Non-Party, which overruled Legacy’s objections to the documents that the School Board sought from non-parties, and allowed the School Board to serve the subpoenas attached to its Notice of Production from Non-Party.

On April 6, 2020, Legacy filed a Motion for [sic] Limine and Motion to Strike, which argued that the undersigned should not consider evidence of, or should strike grounds or allegations, relating to two categories: (1) evidence, including all underlying financial information, concerning Legacy’s alleged “deteriorating financial condition,” because jurisdiction for deciding how to proceed when a charter school experiences a “deteriorating financial condition” lies with the Department of Education, pursuant to

section 1002.345; and (2) evidence or grounds for termination that predate the Amended Charter School Agreement, including allegations contained in a previous termination proceeding (DOAH Case No. 18-2778) that resulted in Legacy withdrawing its request for a final hearing. The School Board opposed Legacy’s motion in two separate pleadings. On April 23, 2020, the School Board also filed a Motion to Compel Respondent’s Production in Response to Petitioner’s Request to Produce, and on April 24, 2020, filed a Motion to Compel Respondent’s Answers to Petitioner’s Interrogatories.

On April 24, 2020, the undersigned conducted the second of two pre- hearing telephonic status conferences. In addition to hearing argument on the motion in limine and motion to strike, the undersigned discussed with the parties the need to change the final hearing in this matter, from an in-person hearing in Titusville, to the Zoom web-conference platform. On April 29, 2020, the undersigned entered an Order Denying Respondent’s Motion in Limine and Motion to Strike, ruling that the undersigned will consider relevant, admissible evidence related to: (a) whether Legacy failed to meet generally accepted standards of fiscal management, as alleged in the Notice of termination; and (b) whether grounds for termination of the Amended Charter Agreement, as alleged in the Notice of Termination, exist, by clear and convincing evidence. Additionally, on April 29, 2020, the undersigned issued an Amended Notice of Hearing, which moved the hearing to the Zoom web-conference platform.

On May 1, 2020, Legacy filed: (1) Response to Motion to Compel Respondent’s Second Amended Response to Interrogatories (Unverified due to Covid-19); (2) Response to School Board’s Motion to Compel Additional Production; and (3) Motion to Reconsider Denial of Motion for [sic] Limine and Motion to Strike Evidence and Grounds for Termination Based Upon Financial Information. Also on May 1, 2020, the School Board filed an Opposition to Legacy’s Motion to Reconsider Denial of Motion in Limine and Motion to Strike Evidence and Grounds for Termination Based Upon Financial Termination. On May 4, 2020, the undersigned issued an Order Denying Motion to Reconsider, as well as an Order Granting Motions to Compel. The Order Granting Motions to Compel ordered Legacy to provide verified answers to its second amended responses no later than May 8, 2020, and that if Legacy failed to provide responsive answers to those interrogatories, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. The Order Granting Motions to Compel also ordered Legacy to provide all responsive documents requested no later than May 8, 2020, and that if it failed to provide responsive, non-privileged documents as ordered, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions.

On May 11, 2020, Legacy filed a Motion to Compel Production. Thereafter, on May 14, 2020, the School Board filed a Renewed Motion for Sanctions, noting that Legacy did not submit answers to interrogatories or responsive documents until May 11, 2020—after the deadline imposed in the May 4, 2020, Order Granting Motions to Compel.

The undersigned conducted the final hearing from May 18 through 22, and 26, 2020. At the outset of the final hearing, the undersigned heard argument on these outstanding motions. Concerning the School Board’s

motion for sanctions, the undersigned deferred ruling, but asked that counsel for the School Board, during the final hearing, alert the undersigned when confronted with evidentiary issues related to the discovery issues raised in its Motion to Compel Production, and that the undersigned would rule on the admissibility of that evidence and note whether sanctions were appropriate.1 With regard to Legacy’s Motion to Compel Production, the undersigned denied the motion, but requested that the School Board provide Legacy with an additional opportunity to inspect the requested files (which contained sensitive identifying information of exceptional student education (ESE) students) during the final hearing.

Additionally, at the outset of the hearing, counsel for the School Board brought to the attention of the undersigned that Legacy failed to timely provide witness and exhibit lists, and then filed an amended exhibit list (after filing its untimely exhibit list) that included additional exhibits. During counsels’ argument on this issue, it became apparent that Legacy’s amended exhibit list contained not only untimely and previously-undisclosed exhibits, but also exhibits that contained material that Legacy did not provide during discovery. Consistent with the undersigned’s deferred ruling on sanctions, the undersigned requested that counsel alert the undersigned when an exhibit that was not timely disclosed pursuant to the December 13, 2019, Order of Pre-hearing Instructions is offered, and the undersigned would rule on the admissibility of that evidence. The undersigned also ruled that the original

1 At the final hearing, Legacy stated that it uploaded the outstanding and requested documents to a file-sharing service on Friday, May 8, 2020, and filed a notice with the Division on Saturday, May 9, 2020, but that the Division did not docket this filing until Monday, May 11, 2020. The School Board contended that it was not informed of a file upload on May 8, and that the documents it accessed on May 11 (after Legacy’s notice of filing), was incomplete.

exhibit and witness lists that the parties filed would govern the undersigned’s consideration of evidence in this proceeding.2

At the final hearing, in its case-in-chief, the School Board presented the testimonies of Brevard County School District’s (School District) Assistant Superintendent Stephanie Archer (fact witness and expert in K through 6 public school education and training), School District’s Assistant Director of Equity Robin Ward (fact witness and expert in educational data analysis), School District’s Assistant Director of Choice Dr. Christine Davis (fact witness and expert in charter school compliance), School District’s Student Services Coordinator (ESE) Rochelle Gilman (fact witness and expert in ESE), and Laura Manlove (fact witness and expert in auditing).3 The School Board recalled Ms. Gilman in rebuttal. The undersigned accepted into evidence the School Board’s Exhibits P1 through P15, P17 through P20, P23 through P26, P28, P30, P32 through P42, P44, P47, P50 through P52, P57, P59, P61 through P79, and P81 through P86.

Legacy presented the testimonies of fact witnesses Governor Board Member Napoleon Carroll; Legacy ESE teacher Jamie Luna; CFL Alarms, LLC Owner Jay Pulchan; Child Financial Officer of Building Hope Services Richard Moreno; Ms. Archer; Dr. Davis; and Legacy Principal Charlene

2 During the final hearing, the undersigned uniformly declined to accept any “non- impeachment” that exhibits (from both the School Board and Legacy) not timely disclosed in accordance with the Order of Pre-Hearing Instructions, which explicitly stated that “[f]ailure to comply with the requirements of this Order may result in the exclusion of witnesses or exhibits not previously disclosed.”

Additionally, Legacy failed to list any objections it had to the School Board’s exhibits in its separately-filed Pre-Hearing Statement, also in derogation of the Order of Pre-Hearing Instructions. At the final hearing, the undersigned provided the School Board with the opportunity to supplement any response to a Legacy objection to the introduction of a School Board exhibit with the additional argument of Legacy’s additional failure to comply with the Order of Pre-Hearing Instructions.

3 The undersigned accepted Ms. Archer, Ms. Ward, and Dr. Davis as experts, over Legacy’s objections.

Montford. The undersigned accepted into evidence Legacy’s Exhibits R1 through R7, R9 through R11, R13, R14, R16 through R18, R20 through R23, R29, R39-A, and R45.

The 10-volume Transcript of the proceeding was filed with the Division on June 24, 2020. On June 26, 2020, the parties filed a Joint Motion for Extension of Time and Extension of Page Limit, requesting an approximately six-day extension of time for the parties to submit their proposed final orders, and an extension of the page limitation for their proposed orders, from 40 to 60 pages. On June 30, 2020, the undersigned entered an Order Granting Joint Motion for Extension of Time and Extension of Page Limit, allowing the parties up to July 10, 2020, to file their proposed final orders, which may exceed 40 pages, but shall not exceed 60 pages. Then, on July 9, 2020, the parties filed a Second Joint Motion for Extension of Time and Extension of Page Limit, requesting an additional extension of time to file their proposed final orders up to July 13, 2020, and an extension of the page limit of their proposed final orders to 70 pages. On July 10, 2020, the undersigned entered an Order Granting Second Joint Motion for Extension of Time and Extension of Page Limit, allowing the parties up to July 13, 2020, to file their proposed final orders, which shall not exceed 70 pages.

The parties filed their proposed recommended orders on July 13, 2020, which the undersigned has considered in the preparation of this Final Order.

All statutory references are to Florida Statutes (2019), unless otherwise noted.

FINDINGS OF FACT

1. Legacy operates Legacy Academy Charter School, a non-Title 1 public elementary charter school (grades K through 6), currently located at

   1923 Knox McRae Drive in Titusville, Florida. It is currently in its third year of operations. Legacy represents itself as a STEAM (Science, Technology, Engineering, Arts, and Mathematics) charter school.

2. Legacy and the School Board entered into a charter contract on

   April 12, 2016. Legacy chose to defer opening for one year, with the intent of opening at the beginning of the 2017-2018 school year.

3. From the time of the original charter, the School District found numerous deficiencies and issues with Legacy’s attempt to open and operate a charter school. For example, in October 2016, it reviewed Legacy’s progress and prepared a “pre-opening checklist” that noted certain deficiencies. In April 2017, representatives from the School District and Legacy met to review the pre-opening checklist and discuss Legacy’s progress toward opening for the school year on August 10, 2017. Assistant Superintendent Archer testified that, based on this meeting, she felt that Legacy was not ready to open, and thought it was in Legacy’s best interest for the School District to offer an opportunity for a second deferral. The School District’s concerns were well-taken; Legacy had not yet secured a school site, had not ordered textbooks, had not hired a Principal, did not have a student enrollment or lottery process in place, did not have an approved and established bank account, did not have office staff in place, and had not hired teachers. Legacy declined the offer to defer another year.

4. Legacy ultimately found a location for the 2017-2018 school year: a former preschool located at the First United Methodist Church in downtown Titusville. During a pre-opening site visit in July 2017, the School District found that the school site was not ADA compliant, that there were safety issues concerning the playground, that the school site lacked infrastructure for necessary technology, and that Legacy had not removed religious symbols.

   On July 31, 2017, when the School District learned that Legacy had not obtained a certificate of occupancy from the City of Titusville (the first day of school was August 10), the School District issued a recommendation for the immediate termination of the charter for health, safety, and welfare concerns. The School District ultimately rescinded that recommendation for immediate termination on August 8, 2017, after Legacy obtained a certificate of occupancy.

5. Legacy opened for the 2017-2018 school year on August 10, 2017. The School District received various complaints soon after, concerning whether ESE and gifted students were receiving their services, whether Legacy was providing free and reduced lunch, and whether Legacy was providing the appropriate materials and curriculum to its teachers.

6. During the 2017-2018 school year, the School Board issued 10 notices to Legacy for various concerns, defaults, and deficiencies, including concerns found during a new site checklist for Legacy’s November 2017 move into a second location in Port St. John, Florida, and information revealed in a specific review audit of Legacy’s fiscal management and financial position conducted by RSM US LLP (RSM) on March 12, 2018.

7. On April 18, 2018, the School Board issued a “90 Day Notice of Termination,” which listed six grounds for termination:

   
   

   1. Evidence of the School’s failure to meet generally accepted standards of fiscal management and/or willfully or recklessly failing to manage public funds in accordance with the law as set forth in Rule 6A-1.0081, Florida Administrative Code, Section 218.503, F.S., Section 1002.33(9), F.S., Section 1002.33(7)(a)(9), F.S., Section 1002.345(1)(a), F.S., and Sections 4(G) and 9(A) of the Charter Contract;

      
      

   2. Evidence of the School’s failure to comply with laws related to public meetings and records as set forth in Section 286.011, F.S., Section

      1002.33(16)(b)1, F.S., and Section 9(A_ of the Charter Contract;

      
      

   3. Evidence of the School’s failure to comply with laws related to teacher certification as set forth in Chapter 1012, F.S., Section 1002.33(12)(f), F.S., and Section 10(C) of the Charter Contract;

      
      

   4. Evidence of the School’s failure to cure the material breaches of terms or conditions of the Charter Contract after receiving the District’s written notice of noncompliance as set forth in Section 1002.33(7), F.S., 1002.33(9)(c), F.S., and Sections 1(D)(l)(iv)(a) and 12(F) of the Charter Contract;

      
      

   5. Evidence of the School’s failure to comply with background screening and other requirements set forth in Chapter 1012, F.S., Sections 1002.33(12)(g), F.S., 10132, F.S., 1012.465, F.S., and 1012.458, F.S. and Section 10(J) of the Charter Contract; and

      
      

   6. Evidence of the School’s failure to comply with all applicable laws, ordinances, and codes of federal, state, and local governance including, without limitation, the Individuals with Disabilities Education Act (IDEA) as referenced in Rule 6A-6.030191(4)(d) and Rule 6A-6.030191(7), Florida Administrative Code, Sections 1003.571(1)(a) and 1002.33(16)(a)(3), F.S., and Section 3(l) of the Charter Contract.

      
      

8. Legacy contested the termination, and the School Board referred the matter to the Division, which assigned it DOAH Case No. 18-2778. Rather than proceed to a final hearing, the parties agreed to and executed an Amended Charter Agreement, dated September 11, 2018 (Amended Charter), and filed a Joint Notice of Voluntary Withdrawal.

9. The Preamble to the Amended Charter sets forth, in pertinent part, the explicit agreement of the parties concerning the issues that resulted in the execution of the Amended Charter:

1. By entering into this Amended Charter, the parties wish to address the areas of deficiencies identified in the 90-Day Termination Notice. In doing so, Sponsor agrees to withdraw its 90-Day Termination Notice, allowing the School a chance to address the areas of deficiency and come into compliance with the terms of the original Charter, as amended by this Amended Charter. In exchange, the School agrees to submit to the Division of Administrative Hearings for Case Number 18-2778 a notice of withdrawal of its request for hearing. Each party is responsible for its own attorneys’ fees and costs incurred related to this DOAH proceeding.

   
   

2. Nothing herein shall prevent the Sponsor from, or waives the Sponsor’s right to, issue another 90- Day Termination Notice based on repeated instances of non-compliance with the six (6) areas set forth in the April 18, 2018 Termination Notice issued by the Sponsor, based on new areas of non- compliance, and/or to immediately terminate the Charter in the event of a health, safety, and welfare issue under section 1002.33(8), Florida Statutes. The School will be allowed to present evidence that it believes prior alleged breaches were cured, wherein the assigned DOAH judge will make the final decision regarding whether the Sponsor has met the burden of proof under then existing laws.[4]

   
   

   4 As referenced previously, Legacy filed a Motion for [sic] Limine and Motion to Strike on April 6, 2020, which, inter alia, argued that the undersigned should not consider evidence or allegations related to the previous conduct that resulted in the April 18, 2018, 90-Day Notice of Termination, contending that the Joint Notice of Voluntary Withdrawal constituted a resolution of those issues, and additionally contending that the doctrine of equitable estoppel precludes the School Board from raising those issues in this proceeding. In the April 29, 2020, Order Denying Respondent’s Motion in Limine and Motion to Strike, the undersigned found that Legacy had not established that the Joint Notice of Voluntary Withdrawal constituted a resolution of those issues, and also concluded that consideration of equitable estoppel, which could constitute a defense to this action, requires an evidentiary record. See, e.g., Fewless v. Dep’t of Mgmt. Servs., Div. of Ret., Case No. 18-5787 (DOAH June 17, 2019, Fla. D.M.S. Oct. 24, 2019). The undersigned provided the parties with “the opportunity at the final hearing to address the terms of the Amended Charter Agreement, create a record, and argue, in the proposed final orders, whether such pre-Amended Charter Agreement issues should be considered in the instant proceeding.” At the final hearing, Legacy did not attempt to introduce evidence to establish that equitable estoppel would preclude the undersigned’s

3. The Amended Charter also makes specific reference to the deficiencies enunciated in the April 18, 2018, 90-Day Notice of Termination, stating:

   
   

   In the event that a proceeding is requested before an Administrative Law Judge based on any of the six (6) identified areas set forth in the April 18, 2018 90-day Termination Notice issued by the Sponsor, the School agrees to an expedited hearing within forty-five (45) days of the Sponsor’s written notice based on the calendar availability of the Administrative Law Judge. All other provisions of law regarding a DOAH termination hearing will apply.

   
   

4. The undersigned finds that consideration of evidence related to the six areas set forth in the April 18, 2018, 90 Day Notice of Termination, in addition to evidence related to those areas set forth in the Termination Notice is warranted.5

5. Legacy moved into its current location on or about July 11, 2018.

6. After the filing of the Joint Notice of Voluntary Withdrawal, and shortly after the parties executed the Amended Charter, the School District, starting October 19, 2018, began issuing multiple official notices of default, insufficiency, and other notices, to Legacy, for a variety of reasons. Thereafter, the School Board issued the Termination Notice.

7. Florida charter schools are generally governed by section 1002.33. Section 1002.33(8)(a) provides as follows:

   
   

   (8) CAUSES FOR NONRENEWAL OR TERMINATION OF CHARTER.—

   
   

   (a) The sponsor shall make student academic achievement for all students the most important

   
   

   consideration of these issues, and made no argument concerning equitable estoppel in its proposed final order.

   
   

   5 The undersigned will also only consider those grounds raised in the Termination Notice in the ultimate determination of whether the School Board is entitled to terminate the Amended Charter.

   factor when determining whether to renew or terminate the charter. The sponsor may also choose not to renew or may terminate the charter if the sponsor finds that one of the grounds set forth below exists by clear and convincing evidence:

   
   

   1. Failure to participate in the state’s education accountability system created in s. 1008.31, as required in this section, or failure to meet the requirements for student performance stated in the charter.

      
      

   2. Failure to meet generally accepted standards of fiscal management.

      
      

   3. Material violation of law.

      
      

   4. Other good cause shown.

   
   

   1. ACADEMIC ACHIEVEMENT AND STUDENT PERFORMANCE

8. The School Board contends that Legacy failed to meet academic achievement and requirements of student performance under

   sections 1002.33(2), 1002.33(7)(a)4., and, 1002.33(8)(a)1., and sections (2) and 9(C) of the Amended Charter. Within this first ground, the Termination Notice identifies the following three categories: (a) failure to demonstrate improvement in student learning and academic achievement; (b) failure to demonstrate accountability by analyzing student performance data and by evaluating the effectiveness and efficiency of its major educational programs; and (c) failure of the Charter Governing Board to demonstrate oversight of assessments and accountability procedures to assure that the School’s student performance standards are met or exceeded.

   1. Failure to demonstrate improvement in student learning and student achievement.

      
      

9. The School Board contends that Legacy failed to demonstrate improvement in student learning and student achievement, and that there was actually a significant decline in student proficiency, as measured by

student performance on the Florida State Assessment (FSA) in English Language Arts, Math, and Science.

17 At the elementary school level, the FSA is administered annually in the areas of English Language Arts (ELA) and Mathematics to students in grades 3 through 6. In addition, the FSA is administered in the area of Science to students in grade 5. See § 1008.22(3)(a), Fla. Stat.

1. All FSA assessments use scaled scores and achievement levels. Achievement levels range from 1 through 5, with level 1 being the lowest achievement level, level 5 being the highest achievement level, and level 3 indicating satisfactory performance on an assessment. See § 1008.22(3)(e)1., Fla. Stat.

2. Ms. Ward’s expert report further explained these achievement levels as follows: 1–inadequate, highly likely to need substantial support for the next grade; 2–below satisfactory, likely to need substantial support for the next grade; 3–adequate, may need additional support for the next grade; 4– proficient, likely to excel in the next grade; and 5–mastery, highly likely to excel in the next grade.

3. School grades are calculated, in part, based on students’ FSA scores.

   See § 1008.34, Fla. Stat.

4. The School Board presented evidence and testimony, including expert testimony, concerning Legacy’s student performance data for grades 3 through 6 in ELA and mathematics, and grade 5 in science, for its first two school years of existence—2017-2018 and 2018-2019.6 Ms. Ward, the School Board’s expert, ultimately opined that Legacy’s student performance significantly declined from the 2017-2018 to the 2018-2019 school year, as evidenced by an increase in students receiving achievement levels of 1 or 2 on the FSA, and, with one exception (to be discussed below), a percentage of

   
   

   6 On March 23, 2020, Commissioner of Education Richard Corcoran issued DOE Order No. 2020-EO-01, an Emergency Order, that, inter alia, cancelled all assessments for the 2019-2020 school year, including the FSA Assessment, as well as school grades.

   students receiving achievement levels of 3 or higher being lower than the State or Brevard School District average.

5. The School Board’s contention that Legacy’s student performance significantly declined over the two school years in question can be summarized in these charts:

   ELA
   	Year	Level 1	Level 2	Level 3	Level 4	Level 5
   	2017-2018	19.5%	22%	31.7%	22%	4.9%
   	2018-2019	34%	23.3%	28.2%	11.7%	2.9%

   
   

   Mathematics
   	Year	Level 1	Level 2	Level 3	Level 4	Level 5
   	2017-2018	34.1%	34.1%	17.1%	9.8%	4.9%
   	2018-2019	47%	26%	19%	6%	2%

   
   

   Science
   	Year	Level 1	Level 2	Level 3	Level 4	Level 5
   	2017-2018	18.2%	36.4%	18.2%	27.3%	0%
   	2018-2019	56.7%	30%	10%	3.3%	0%

   
   

6. Legacy’s ELA performance in the 2017-2018 school year was higher than the School District average. However, the percentage of Legacy students performing at level 3 and above for the remaining assessments was lower than State and School District averages for all assessments.

7. The School Board also presented evidence and testimony, including expert testimony, that analyzed students’ 2016-2017 school year assessment levels in ELA and mathematics prior to attending Legacy, and then traced

   those students’ assessment levels during their time at Legacy.7 The School Board presented evidence that the number of students whose assessment levels were 1 and 2 increased after attending Legacy, while the number of students whose assessment levels were 3 and above decreased.

8. In its first school year (2017-2018), Legacy received a school grade of C, and in its second school year (2018-2019), Legacy received a school grade of D. Legacy was the only public school in the school district that received a D school grade for the 2018-2019 school year.

9. Legacy argues that, based on the percentage of points earned for the calculation for school grades, it has averaged a C for the school years 2017- 2018, 2018-2019, and 2019-2020. Legacy notes that this grade is the same, or better, over this same period of time than two schools within its geographic proximity: Mims Elementary and Coquina Elementary. Legacy further noted that Mims and Coquina received D grades for the 2016-2017 school years.

10. Legacy also introduced evidence that it received capital outlay funding for the school year 2019-2020, and that, according to the guidelines set forth in section 1013.62, Florida Statutes, as charter schools must have “satisfactory student achievement based on state accountability standards applicable to the charter school[]” to receive such funding, it must be found to have satisfactory student achievement.

11. The School Board presented evidence that comparing Legacy’s “average” grade to other geographically-proximate schools is not persuasive. First, Coquina, Mims (and other schools Legacy compared itself to during the final hearing, such as Apollo and Oak Park Elementary Schools), are Title I public elementary schools. Legacy, as a charter school, should be considered a “high-performing” school. The other “comparator” schools contain higher subgroups of economically disadvantaged, minority, and ESE populations than Legacy. Second, as a charter school, Legacy can enroll students from

    
    

    7 The School Board could not provide such an analysis with respect to science assessment levels, as the science FSA is administered only in fifth grade.

    anywhere in the district, and has no boundaries, so that a comparison to neighboring schools is not persuasive. Third, if Legacy is compared to other charters and schools that emphasize STEAM innovation, such as Sculptor Charter School, South Lake Elementary School, and Educational Horizons Charter, those schools are consistently “A” schools, and Legacy’s declining grades only emphasize its failure to demonstrate improvement.

12. Assistant Superintendent Archer testified that to establish academic achievement, comparing one school to another is not ideal; rather, it is important to drill down to data on individual student achievement to determine whether each student displays the appropriate level of growth each school year.

13. The School Board further contends that Legacy, with one exception, failed to achieve any of its self-identified academic goals listed in its Application (which is incorporated into the Amended Charter), academic goals submitted to the School Board, and those academic goals identified in a School Improvement Plan (SIP) that Legacy submitted annually to the School Board pursuant to the Amended Charter.8

    1. With respect to Legacy’s goals listed in its application:

       
       

       Legacy Goal	Student Achievement Performance
       Meet or exceed performance scores of District and State traditional public schools (based on percentage of students assessment levels 3 through 5 on FSA)	2017-2018 ELA: Legacy–58.5%; District 60.3%; State 55.9% (Note–Legacy met this goal)

       
       

       8 Legacy contends that the annual SIP requirement imposed by the School Board runs afoul of section 1002.33(7), which provides that “[t]he sponsor may not impose unreasonable rules or regulations that violate the intent of giving charters greater flexibility to meet educational goals.” The undersigned notes that section 1001.42(18)(a), Florida Statutes, requires school boards to annually approve and require implementation of a new, amended, or continuation of an SIP for each school in a district which meets certain criteria, such as receiving a school grade of D or F, among others. Assistant Superintendent Archer testified that it requires an SIP for all of its charter schools. She further testified that Florida requires academic achievement goals, which the School District now includes in the SIP. Legacy agreed to the SIP process in its Amended Charter, and submitted an SIP to the School District for each year of its existence. Further, having received a D grade in 2018-2019, Legacy was obligated to submit an SIP under section 1001.42(18)(a).

       	2017-2018 Math: Legacy–31.7%; District 61.6%; State 57% 2017-2018 Science: Legacy–45.5%; District 60.8%; State 58.7% 2018-2019 ELA: Legacy–42.7%; District – 61.6%; State 57% 2018-2019 Math: Legacy–45.5%; District 59.9%; State–57.8% 2018-2019 Science: Legacy–13.3%; District 59.9%; State 57.8%
       Grades K through 2 reading: Mean growth from fall to spring will be at least one year, as evidenced by outcomes from fall, winter, and spring Florida Assessment for Instruction in Reading (FAIR)	Legacy cannot meet this goal because it did not administer FAIR for grades K-2 students
       Grades 3 through 6 FSA ELA and Math: 86% level 3 or higher; 10% decrease in level 1 or 2	2017-2018 ELA: levels 3 through 5– 58.5%; levels 1 and 2 – 41.5% 2018-2019 ELA: levels 3 through 5– 42.7%; levels 1 and 2 – 57.3% 2017-2018 Math: levels 3 through 5– 31.8%; levels 1 and 2–68.2% 2018-2019 Math: levels 3 through 5– 27%; levels 1 and 2–73%
       Grade 5 Science: 50% level 3 or higher	2017-2018 Science: levels 3 through 5–45.5% 2018-2019 Science: levels 3 through 5–13.3%

       Growth/Performance: the longer a student stays at Legacy, as the student is promoted, the higher the performance of that student	ELA: increase in levels 1 and 2 from 48% to 50%; decrease in levels 3 through 5 from 52% to 50% Math: increase in levels 1 and 2 from 49% to 53%; decrease in levels 3 through 5 from 51% to 47%
       School Grade: first year grade of “B”; second year grade at or above “B”; third year grade of “A”	First year school grade of “C” Second year school grade of “D” No reported grade for year three

       
       

    2. With respect to Legacy’s goals identified in the 2017-2018 SIP:

       
       

       Legacy Goal	Student Achievement Performance
       75% grade level average will be achieved by students in grades 1-2 on the Quarterly Literary Assessment (QLA) spring assessment	Legacy failed to administer the spring QLA for grades 1 and 2
       70% average percentile rank will be achieved by students in grades 3 through 6 on the Reading Comprehension portion of the final FAIR assessment	Legacy did not administer the FAIR assessment to grades 3 through 6
       75% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grades 3 through 6 on the 2018 FSA assessment in ELA	58.67% of Legacy students in grades 3 through 6 achieved levels 3 through 5 on the FSA ELA
       65% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grades 3 through 6 on the 2018 FSA assessment in Mathematics	31.8% of Legacy students in grades 3 through 6 achieved levels 3 through 5 on the FSA for Mathematics
       70% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grade 5 on the 2018 FSA assessment in Science	45.5% of Legacy students in grade 5 achieved levels 3 through 5 on the FSA for Science

    3. With respect to Legacy’s goals identified in the 2018-2019 SIP:

       
       

       Legacy Goal	Student Achievement Performance
       Reduce the percentage of achievement at level 1 or 2 to 10% or below, and increase students at level 3 or above to 35% or greater for the FSA assessment in ELA	57.3% of students in grades 3 through 6 achieved proficiency rates of levels 3 through 5 (did not meet)
       Decrease the amount of students who fell to levels 1 and 2 range by at least 5% and increase level 3 and above by 10% for the FSA assessment in Mathematics	Level 1 increased by 12.9%; Level 2 decreased by 8.1%; and Level 3 decreased by 4.8% (did not meet)
       Exceptional Education Students (ESE) increase to 35% at level 3 or higher for ELA, and 25% at level 3 or higher for Mathematics	19% of ESE students scored level 3 or higher on FSA for ELA, and 14.3% of ESE students scored level 3 or higher on FSA for Mathematics
       English Language Learners (ELL) students increase by 10% proficiency from the first diagnostic test to the last exam of the school year	Legacy provided no data

       
       

    4. With respect to Legacy’s Academic Achievement Goals for 2018-2019, which were separate from its SIP, the School Board introduced evidence that: with respect to ELA, Legacy failed to reduce level 1 and 2 to 10% or below, or increase levels 3 through 5 to 35% or greater, as level 1 achievement increased from 19.5% to 34% over the previous year, and level 3 through 5 achievement decreased from 58.6% to 42.8% over the previous year; and, with respect to Mathematics, Legacy failed to decrease levels 1 and 2 by at least 5% each, and increase levels 3 through 5 by 10% overall, as levels 1 and 2 increased by 4.8% over the previous school year, and levels 3-5 decreased

    by 4.8%.

14. Clear and convincing evidence establishes that, over the two school years of its existence, Legacy’s students, with little exception, have declined

    in the area of student achievement. Although Legacy’s ELA performance in the 2017-2018 school year was higher than the school district’s average, it declined in all other areas during this time period, and declined across-the- board the subsequent year. The School Board also established, by clear and convincing evidence, that Legacy, with one exception, failed to meet its self- identified goals in its application, SIPs, and academic achievement goals submitted to the School Board.

    1. Failure to demonstrate accountability by analyzing student performance data and by evaluating the effectiveness and efficiency of its major educational programs.

       
       

15. Section 1002.33(7)(a)4. requires charter schools to address:

    
    

    The methods used to identify the educational strengths and needs of students and how well educational goals and performance standards are met by students attending the charter school. The methods shall provide a means for the charter school to ensure accountability to its constituents by analyzing student performance data and be evaluating the effectiveness and efficiency of its major educational programs. Students in charter schools shall, at a minimum, participate in the statewide assessment program created under

    s. 1008.22.

    
    

16. Assistant Superintendent Archer testified and provided an expert report, concerning Legacy’s failure to analyze its student data, as required under governing law, the Amended Charter, and district requirements. Assistant Superintendent Archer testified:

    
    

    [Legacy’s] failure to implement any type of strategy to address and analyze data and establish methods to measure goals and make those data-informed decisions for instruction has negatively impacted the student achievement. Again, if you don’t know what your students need, how do you fill any gaps in their education or knowledge? If you don’t know

    what they know, and what to do if the student doesn’t understand, you cannot continue to support the children. Therefore, any kind of lack of analysis is the responsibility of the school.

    
    

17. There are numerous progress monitoring tools available to Legacy that would document and permit analysis of individual student data and progress. Most notably, “Performance Matters” is a progress monitoring tool available to all schools within the school district. Assistant Superintendent Archer testified that Legacy did not consistently use Performance Matters or any other progress monitoring. On a site visit to Legacy, Assistant Superintendent Archer testified that she was unable to review any other documentation, notebooks, or other evidence that teachers were engaging in sufficient progress monitoring.

18. Section 1008.25(4), Florida Statutes, provides that a student who does not achieve level 3 on an FSA assessment for ELA or mathematics, and who does not have an individualized education plan (IEP) in place, must be placed on an individualized progress monitoring plan (PMP). A PMP would be referenced in Performance Matters. Assistant Superintendent Archer testified that Legacy did not access Performance Matters during its first school year, and during their second year, only accessed it sporadically and inconsistently. Assistant Superintendent Archer further testified that during their third school year (2019-2020), Legacy had potentially 33 students that should have a PMP, but that Performance Matters indicated only 4 PMPs were in place.

19. Legacy had previously indicated that it would utilize personalized academic plans (PAP) for its students, which were designed so that students and teachers would monitor an individual student’s progress. Assistant Superintendent Archer testified that Legacy never produced any evidence of a PAP for any of its students.

20. Legacy contends that it reviewed performance data of its academic programs continuously, and that it submits its academic achievement goals to the School Board on an annual basis.

21. Ms. Montford, Legacy’s current principal (who also served as its first principal in 2017-2018), testified that Legacy’s governing board provides oversight of assessments and accountability procedures for its school, but was unable to provide any evidence of this oversight.

22. Despite Legacy’s contentions, the School Board established, by clear and convincing evidence, that Legacy failed to consistently and accurately utilize methods that identified the strengths and weaknesses of its students, and how well educational goals and performance standards were met by students attending Legacy.

    1. Failure of the Charter Governing Board (Governing Board) to demonstrate oversight of assessments and accountability procedures to assure that the Legacy’s student performance standards are met or exceeded.

    
    

23. Similar to subsection I.B. above, the School Board contended, in its Termination Notice, that over the preceding two and one-half years, after reviewing the minutes of 35 meetings of Legacy’s Governing Board, there were only four instances in which Legacy’s Governing Board discussed an SIP. The School Board further contends that these minutes do not reflect input into the development of a plan, review of school and/or student performance data, or analysis of school needs.

24. And, similarly, Legacy contends that its Governing Board conducted public meetings on a regular basis to discuss and invite public input concerning its student performance standards.

25. As this contention is directly related to the findings in subsection I.B. above, the undersigned finds that the School Board has established, by clear and convincing evidence, that Legacy’s Governing Board failed to demonstrate oversight of assessment and accountability procedures to assure that Legacy’s student performance standards were met or exceeded.

    1. EXCEPTIONAL STUDENT EDUCATION

26. The School Board contends that Legacy failed to comply with all applicable laws, ordinances, and codes of federal, state, and local governance including the Individuals with Disabilities Education Act (IDEA), as implemented by Florida through sections 1002.33(2), 1003.571(1)(a), and 1002.33(16)(a)3., Florida Statutes, Florida Administrative Code Rules 6A- 6.030191(4)(d) and 6A-6.030191(7) and adopted in section 3(j) of the Amended Charter.

27. ESE concerns services required for students with disabilities. At the federal level, ESE is governed by the IDEA, which makes available a free appropriate public education (FAPE) to eligible children with disabilities. Florida law incorporates the IDEA in section 1003.571.

28. Upon parental consent for an evaluation under IDEA, a child may be found eligible for ESE if the child has a disability that results in a need for special education services to make progress in school. If the child is eligible, the school is then required to develop an IEP, which is a document that details the individual child’s area(s) of need, educational goals, and support that the school will provide. The school must provide ESE services to the student at the duration and frequency indicated in the IEP. If a school fails to provide these services, the student may be owed compensatory education services, which are an equitable form of reimbursement when a school does not provide FAPE.

29. Section 1002.33(16)(a)3. requires charter schools to comply with laws pertaining to ESE.

30. Dr. Davis, the School Board’s fact and expert witness in charter school compliance, explained that each ESE student’s records are contained in an audit file, which is separate from that student’s cumulative student file. This audit file contains all meeting and conference notes, test results, meeting dates and notices, and the student’s IEP. And Ms. Gilman, the School Board’s fact and expert witness in ESE, stated that a school must provide services in

    accordance with the student’s IEP, and if it fails to do so, the student is owed compensatory education services. All ESE services must be reflected in lesson plans, and a school is required to report each student’s progress to the student’s parents a minimum of every nine weeks.

31. Ms. Gilman further testified of the importance of documenting and monitoring ESE students, as progress monitoring determines whether a student is meeting his or her goals in a timely manner within the duration of the IEP. If the School District does not provide documentation that a student receives these services, then it determines that the student is owed compensatory education services.

32. The School Board presented evidence that during Legacy’s first school year (2017-2018), it had not hired an ESE teacher within 15 days of the first day of class, and that student’s schedules did not provide any time for ESE services. The School District conducted a site visit after receiving complaints, and found the ESE teacher who was ultimately hired covering another classroom, and that Legacy could not produce ESE documentation when requested.

33. Legacy received multiple official notices from the School Board regarding its ESE services and documentation, starting October 13, 2017, with a Notice of Deficiency. After receiving what it deemed an inadequate response from Legacy, on December 1, 2017, the School Board issued a Notice of Default, which stated that Legacy had not provided appropriate programs, strategies, and support services for ESE students. Legacy responded, and the School Board issued another Notice of Default.

34. On February 22, 2018, the School District’s ESE department conducted one of many ESE audits of Legacy’s ESE services. The audit report showed four areas of noncompliance: (1) teachers need to document the accommodations they provide to each student in a user-friendly format; (2) ESE teachers need to have a well-documented lesson plan that details the services provided to the ESE students; (3) ESE teachers need to document

    attendance of ESE students and log of daily services provided; and (4) progress reports need to be provided to ESE students at the same time period as non-disabled peers. This audit included a corrective action plan, and the District additionally required Legacy to conduct an internal audit of its records to determine if any evidence existed that it actually provided ESE services.

35. Legacy identified 27 students who were owed a total of 11,574 compensatory education service minutes, and proposed a compensatory education plan to provide those minutes. In March 2018, Legacy provided additional information in response to the December 1, 2017, Notice of Default. The School Board reviewed that information, finding that Legacy continued to be deficient in its documentation and provision of ESE services. On

    April 18, 2018, the School Board issued the first notice of termination, which included Legacy’s failure to comply with ESE laws. As discussed previously, the parties entered into an Amended Charter after this first notice of termination.

36. The Amended Charter refers to previous ESE issues concerning Legacy:

    
    

    In the audit report dated February 22, 2018, the Sponsor cited four (4) findings of non-compliance regarding the ESE services provided by the School, including the School’s failure to document accommodations provided to each student in accordance with the student’s IEP, failure to provide well-developed lesson plans that detail the services provided to ESE students as documented on each student’s IEP, failure to provide documentation of attendance of ESE students and log of daily services provided, and failure to provide evidence that the School generated Annual Goals Progress Reports and EP Goals Progress Reports (Gifted) with data driven comments for parents. It has since adopted the District’s attendance logs,

    has adopted standardized lesson plans, and will continue to follow the District’s Corrective Action Plan as contained in the audit report dated February 22, 2018. The School has conducted an internal audit to determine what students may be owed compensatory education. By September 30, 2018, the School shall work with District ESE staff to ensure that all students have been properly identified and submit a plan to the District setting forth compliance with the deficiencies mentioned above and a plan to provide compensatory education to all students who did not receive the proper ESE services. Said plan shall include the methods by which each affected student will be receiving compensatory education, including the School’s plan for students who may no longer be enrolled at the School. All expenses related to compensatory education shall be borne by the School and all compensatory services shall be provided to the affected students by November 15, 2018, with supporting documentation of compliance provided to the District by December 1, 2018. Said plan shall be approved by the Sponsor. Upon a showing of good cause, the School may request an extension of any of these dates, and the Sponsor’s consent to such request shall not be unreasonably withheld.

    
    

37. There was no persuasive evidence presented at the final hearing that Legacy has ever provided the 11,574 compensatory education service minutes owed from the 2017-2018 school year. Legacy contends that it responded to every notice received from the School District, as provided in the Amended Charter, and that an April 2019 ESE audit conducted by the School District, which identified numerous deficiencies and corrective measures, did not mention these minutes. However, the School Board had no record of, and Legacy presented no evidence that, these compensatory education minutes were provided to eligible students.

38. After the execution of the Amended Charter, which included the requirement that Legacy submit a compensatory education plan to the School

    District by September 30, 2018, Legacy requested an extension for the deadlines contained in this provision of the Amended Charter, to be completed by January 15, 2019, with supporting documentation to the School District by February 1, 2019. In that time period, Legacy engaged in a familiar pattern of submitting a draft plan that the School District considered insufficient, but, on December 7, 2018, the School District contingently accepted Legacy’s following of a draft plan pending minor revisions. However, Legacy never submitted a revised document, and on January 18, 2019, the School District issued a Notice of Non-Satisfaction for failing to submit an acceptable compensatory education plan (which, at that point, would be the third amended compensatory education plan).

39. Thereafter, on February 4, 2019, the School District issued a Notice of Default, and provided Legacy a February 19, 2019, deadline to come into compliance by submitting an acceptable compensatory education plan. Instead, Legacy requested an extension of the February 19, 2019, deadline, which, in a letter dated February 27, 2019, the School District denied.

40. On April 4, 2019, the School District issued another Notice of Non- Satisfaction, for Legacy’s failure to comply with the February 4, 2019, Notice of Default. Following this April 4, 2019, Notice of Non-Satisfaction, the School District met with Legacy, and on April 16, 2019, issued a Notice of Deadlines, which outlined information and new deadlines that the School District and Legacy agreed to comply with concerning compensatory education services.

41. The School District’s Division of ESE conducted follow-up audits on April 16 and 22, 2019, to ensure that Legacy was in compliance with ESE requirements. The report from these audits cited seven areas of noncompliance: (1) documentation of accommodations and strategies; (2) documentation of services; (3) documentation of daily attendance and services; (4) documentation of student progress reports; (5) documentation of parent notification; (6) documentation of written IEPs; and (7) documentation

    of supplemental aids and services. Three of these areas of noncompliance (documentation of accommodations and strategies, services, and daily attendance) were repeat deficiencies from the previous February 22, 2018, audit.

42. Ms. Gilman testified that the findings of these follow-up audits raised concerns of whether Legacy’s ESE students were actually receiving the services that the law requires. Ms. Gilman’s expert testimony is credited.

43. As a result of the April 2019 audit, Legacy was required to provide 1,305 compensatory education service minutes for the six sample students identified. Legacy completed these compensatory education service minutes, which were for the 2018-2019 school year, at the beginning of the summer between the 2018-2019 and 2019-2020 school years.

44. At the beginning of the 2019-2020 school year, Legacy had completed the compensatory education service minutes (1,305) owed to those six students, but had not completed the compensatory education service minutes (11,574) owed to the 27 students from the 2017-2018 school year.

45. The School District presented evidence that Legacy experienced ESE staff turnover during its three years of operation. Legacy presented evidence of an ESE teacher shortage for several weeks, making it difficult to hire and retain such teachers.

46. During the 2019-2020 school year, Legacy lost its only ESE teacher for a period from September through October 2019, when Legacy hired a new ESE teacher. During these weeks without an ESE teacher, additional compensatory education minutes accrued because none of Legacy’s ESE students received services during this time. As a result, the compensatory education services minutes owed for 2019-2020 was 16,200 minutes. At subsequent parent meetings, some of the parents of Legacy’s ESE students waived some of the compensatory education minutes owed, resulting in a total of 9,990 minutes owed.

47. Ms. Luna, one of Legacy’s current ESE teachers and who worked as an ESE teacher for Legacy during the 2019-2020 school year, testified that Legacy worked to fulfill ESE compliance issues. Ms. Luna testified that all regular and compensatory ESE services for the 2019-2020 school year have been provided during remote learning caused by the COVID-19 pandemic, and documented through the Google Classroom platform. However, because Legacy failed to produce progress monitoring reports related to ESE students during discovery, and failed to timely disclose its desire to introduce these progress monitoring reports as exhibits at the final hearing, the undersigned excluded such evidence.

48. The School Board has established, by clear and convincing evidence, that Legacy failed to provide 11,574 compensatory education service minutes to 27 ESE students from the 2017-2018 school year. The School Board also established, by clear and convincing evidence, that Legacy failed to properly provide ESE services to its ESE students in the 2018-2019 school year, despite numerous notices. Although Ms. Luna’s testimony that Legacy has completed regular and compensatory ESE services for the 2019-2020 school year was persuasive, it is not clear, because of the lack of admissible progress monitoring reports, that Legacy’s ESE students received the services required under their IEPs.

    1. FINANCIAL MANAGEMENT

49. The School Board contends that Legacy failed to meet generally accepted standards of fiscal management and/or willfully or recklessly failed to manage public funds in accordance with the law and promote enhanced academic success and financial efficiency by aligning responsibility with accountability as set forth in sections 218.503, 1002.33(9), 1002.33(7)(a)9., 1002.33(2)(a), and 1002.345(1)(a)3., Florida Statutes, Florida Administrative Code Rule 6A-1.0081, and sections 4(H), 4(G)(3)(a), and 9(A) of the Amended Charter.

50. Section 1002.33(8)(a)2. provides that a sponsor may terminate a charter if it finds, by clear and convincing evidence, a “[f]ailure to meet generally accepted standards of fiscal management.”

51. The School District administers the public funds that Legacy receives for its operations. Pursuant to section 1002.33(9)(g), Legacy is responsible for its finances, with various reporting requirements to the School District.

52. Legacy’s Governing Board is responsible for the operation and fiscal management of the school, and shall provide oversight over the school’s operations. Legacy’s Governing Board must submit a monthly financial statement to the School District no later than the last day of the month following the month being reported. Section 1002.33(9)(g)1.a. requires Legacy to use the accounts and codes prescribed in the most recent issuance of the “Financial and Program Cost Accounting and Reporting for Florida Schools,” a publication, for all financial transactions and maintenance of public records.

53. The primary source for revenue for a charter school is the Florida Education Finance Program (FEFP), which is based on a weighted calculation of the enrollment of the school (also known as full-time equivalent (FTE)). See § 1002.33(17) Fla. Stat.

54. Legacy also qualified for a $500,000.00 Charter School Program grant (CSP), in which Florida provides start-up and implementation funds for new charter schools. CSP is a reimbursement grant, in which a charter school first purchases items, and upon submission of appropriate documentation, receives a reimbursement of the funds spent. The School District acts as a pass-through for the CSP funds, and reviews documents for proper documentation and adherence to the Governing Board policy before authorizing reimbursement. CSP funds are to be distributed in two phases: start-up (prior to opening, $25,000.00) and implementation (after opening,

    $475,000.00).

55. Legacy failed to receive full reimbursement from CSP at either phase because it did not properly document purchases and failed to follow its Governing Board purchasing policies. This failure caused financial issues with Legacy, to be discussed further below.

56. On November 19, 2018, Legacy took out a short-term loan from Legacy Funding Services, LLC, evidenced by a promissory note, in the original principal amount of $112,505.00.9 Legacy agreed to repay the promissory note by March 15, 2019, and accrue interest. The purpose of this loan was to provide funds to purchase items, to be reimbursed by the CSP grant.

57. The School Board presented evidence that, in early 2018, it had various concerns about Legacy’s financial situation. The School District requested its internal auditor, RSM, to conduct a review of Legacy’s financial condition, and report whether financial emergency indicators, as defined in section 1002.345, were present. After meeting with School District staff, and Ms. Montford, RSM provided a “Specific Review” audit dated March 12, 2018. This Specific Review formed part of the basis for the April 18, 2018, 90-Day Notice of Termination.

58. The 2018 RSM Specific Review found that Legacy made no payments on this short-term loan before the maturity date. Legacy had not paid the promissory note by the maturity date because it did not receive CSP funds. According to section 218.503(1)(a), one condition of a “financial emergency” is “[f]ailure within the same fiscal year in which due to pay short-term loans . . . as a result of a lack of funds.”

59. Legacy made a payment on the promissory note after the maturity date. Then, it renegotiated the loan into a new promissory note dated September 20, 2019, in the principal amount of $88,322.11, with a maturity date of August 1, 2021. That promissory note included a security agreement, by which Legacy agreed to pledge all of its furniture, fixtures, equipment, and

    
    

    9 Legacy Funding Services, LLC, is not connected to or otherwise affiliated with Legacy Academy Charter, Inc., or any of its principals.

    the like as collateral; however, as the school’s assets are purchased with public funds, it was improper to enter into this security agreement. Legacy provided evidence, in a Uniform Commercial Code (UCC) filing, that this security agreement was removed from the promissory note.

60. The 2018 RSM Specific Review also found that Legacy listed this loan as revenue on its monthly financial report, as opposed to a liability, which is problematic. By standard accounting principles, revenue is income that an entity generates; a loan, such as the Legacy loan, obviously does not qualify as revenue.

61. Legacy has engaged an external third-party auditor, King & Walker, CPA, P.L. (King & Walker) to conduct an annual financial statement audit. This annual financial statement audit is a review of the balances of Legacy’s financial statements, and the auditor ultimately issues an opinion on whether those balances are reasonable and accurate in all material respects. These audits are reported in accordance with generally accepted accounting principles (GAAP), which are standards set by the American Institute of Certified Public Accountants. GAAP is an all-encompassing version of the financial statements that includes every long-term item, pension, long-term capital assets, long-term payables, and the like.

62. In all of its previous annual audits from King & Walker, Legacy has received a “clean” audit, that is, that the financial statements “present fairly, in all material respects[,]” with no adverse findings. Although Legacy contends that this is sufficient to establish that it has met accepted standards of financial management, the evidence presented at the final hearing indicated otherwise.

63. The King & Walker audit report provides exceptions. For example, it states that the audit is “not for the purpose of expressing an opinion on the effectiveness of the school’s internal control.” It also states that “consideration of internal control . . . was not designed to identify all deficiencies in internal control that might contain material weaknesses or

    significant deficiencies . . . material weaknesses may exist that have not been identified.”

64. Ms. Manlove, who was an auditor for RSM and was accepted as an expert in the field of auditing, explained that government entities commonly report their funds on a “fund balance” or “modified accrual basis,” which does not include every long-term asset or liability, but only includes short-term items. Ms. Manlove stated that this differs from GAAP.

65. In 2019, the School District again engaged RSM to conduct a review to analyze Legacy’s compliance with the Amended Charter, fiscal management and controls, compliance with Florida law (focusing on indicators of a deteriorating financial condition or financial emergency), and compliance with Florida law concerning background screenings of Legacy employees.

66. The 2019 RSM Review differed from the King & Walker audits, as it looked for compliance with what the Florida Department of Education requires of charter schools to report to sponsors, which means a “fund balance” approach that includes short-term items that are normally found in monthly financial statements.

67. RSM met with Ms. Montford and performed field work on site at Legacy in August and September 2019, and additionally contacted Kevin Lugar of Building Hope, which Legacy had contracted with to support accounting support. Ms. Manlove testified that Ms. Montford, who was then serving as Principal, had possession of the documents, and that many of the requested financial documents were not kept at the school.

68. The 2019 RSM Review, in analyzing whether any indicators of a financial emergency existed, looked for evidence of failure to pay uncontested claims from creditors within 90 days after the claim is presented, as required by section 218.503(1)(b), and found:

    1. A December 27, 2018, debit card payment in the amount of $323.12 to IC Systems, which was supported by a demand for payment that stated that IC Systems was a debt collection agency for Parrish Medical Group. Legacy

       could not provide a copy of the original invoice, and contended that this was a payment to AT&T, but could provide no evidence to support this contention. Based on this lack of documentation, it is not clear whether this payment aged over 90 days;

    2. A March 8, 2019, debit card payment in the amount of $843.96 to Florida Power & Light (FPL), which was supported by a document that indicated that this was a “final notice before power is turned off,” with a due date of March 7, 2019. Legacy did not respond to RSM’s inquiries as to whether FPL shut off Legacy’s power;

    3. Ms. Manlove testified that there was a pattern of FPL shut-off and past- due notices. The School Board presented evidence of four additional shut-off notices from FPL–July 10, 2018, November 27, 2018, February 26, 2019, and March 26, 2019—as well as four past due notices from FPL—April 2, 2019, June 3, 2019, November 2, 2019, and March 3, 2020. The Governing Board was not aware of these FPL shut-off and past-due notices.

69. The 2019 RSM Review also analyzed a sampling of expenditures. Legacy’s segregation of financial duty policies provides that the Principal may authorize payments of $5,000.00 or less, and the Principal and Treasurer must jointly authorize (i) payments greater than $5,000, and (ii) payments of $1,500 or more that utilize CSP funds.

70. The 2019 RSM Review found a December 5, 2018, check for $67,635.00 to CFL Alarms, LLC (CFL Alarms), for the purchase of computers and related equipment. The records provided to RSM indicated that

    Ms. Montford, as Principal, and Mr. Carroll, as Treasurer, approved of this expenditure. However, Ms. Montford was not the Principal of Legacy at that time, and Mr. Carroll had never served as Treasurer, but rather as Governing Board Vice Chair.

71. Legacy submitted a CSP reimbursement request to the School District for the CFL Alarms purchase, but provided invoices from CFL Alarms that did not contain details such as types of equipment purchased or serial

    numbers of computers. Mr. Pulchan, the owner of CFL Alarms, testified that, in response to the School Board’s subpoena for its records, he added serial numbers and modified the invoices per Ms. Montford’s request.

72. It also became apparent during the final hearing that CFL Alarms was not a licensed reseller of the Lenovo or Dell computers that it sold to Legacy. In fact, the evidence showed that CFL Alarms purchased computer equipment directly from Dell and Amazon, and then resold the equipment to Legacy at a substantial mark-up of between 45 and 60 percent. While

    Mr. Pulchan testified that he delivered and installed this equipment, Legacy provided no evidence or testimony why it could not have purchased this equipment directly, or in a more cost-effective manner.

73. Legacy provided bank records that reflected a refund from CFL Alarms to Legacy in the amount of $33,131.50. CFL Alarms provided records from Mr. Pulchan’s Amazon account that reflected the return of Lenovo laptops. The undersigned finds that the evidence was unclear as to what Legacy purchased from CFL Alarms for $67,645.00, or what Legacy returned to CFL Alarms for $33,131.50.

74. The payment to CFL Alarms, evidenced by a check signed by

    Ms. Montford, is also evidence that Legacy did not follow its segregation of financial duties policies.

75. The School Board presented additional evidence that Legacy lacked a formal monitoring process for debit card purchases. It presented evidence that Legacy’s December 2019 bank statement reflects four payments to FPL, only one of which by check. Legacy made the other three payments with a debit card in the amounts of $948.31, $74.31, and $485.60, which were unsupported by other documentation.

76. The School Board also presented evidence that it was, at best, unclear whether Legacy’s Governing Board properly monitors, performs due diligence, and exercises fiduciary responsibility over the school, as required under section 1002.33(9)(i) and (j). Part of the reason for this was that Legacy

    did not produce complete board packets for its monthly Governing Board meetings. An additional reason is that Mr. Carroll, the Governing Board vice chair, who has extensive background in finance and who previously served as the chief financial officer for NASA, provided inconsistent testimony about past-due bills and oversight.

77. The School Board also presented evidence of Legacy’s monthly financial statements, which reflected a negative cash position for each month between October 2019 and March 2020. The negative cash position classified Legacy as being in a “deteriorating financial condition” under section 1002.345, and required Legacy to submit a Corrective Action Plan (CAP). The School District provided Legacy with notice about the submission of a CAP in November 2019. Legacy prepared a CAP, but the School District determined it was insufficient because it did not identify the specific actions needed to recover from this negative cash position. Legacy did not provide an updated CAP, and the School District forwarded Legacy’s CAP to the Department of Education on December 19, 2019.

78. The Department of Education directed Legacy to prepare a CAP, with a deadline of May 1, 2020, which Legacy timely submitted, with assistance of the School District. As part of the CAP, Legacy plans to reduce salaries over a period of a year, and renegotiate its lease to reduce payments.10

79. With respect to the lease, which Legacy entered into with Legacy Charter Holdings, LLC, on April 21, 2017, the renegotiation resulted in a temporary reduction of the monthly rent from $41,483.67 per month, to

    
    

    10 Legacy presented evidence at the final hearing that another charter school in Brevard County, Emma Jewel Charter Academy in Cocoa, Florida, has been required to submit a CAP for the 2014-2015 and 2015-2016 school years, but has never received a notice of termination from the School Board, while Legacy, who is undergoing the CAP process for the first time, received a notice of termination. Legacy contends that this disparate treatment is discriminatory. The undersigned finds that such evidence related to Emma Jewel does not alter the undersigned’s ultimate findings concerning whether Legacy has failed to meet generally accepted standards of fiscal management.

    $10,000.00 per month, for April, May, and June 2020. Thereafter, in July 2020, the rent increased to $37,941.98 per month.11

80. Mr. Moreno, the chief financial officer of Building Hope Services, testified, since fall 2018, that Building Hope Services provides back office accounting services for Legacy. His staff assists in the preparation of Legacy’s monthly financial statements, which he reviews. He testified that based on his review of Legacy’s financial statements, its revenues will exceed its expenditures at the end of the fiscal year. Mr. Moreno based this conclusion on the lease adjustment, and that Legacy received through the Small Business Administration (SBA) and USA CARES Act, see 15 U.S.C. § 636, et seq., a Paycheck Protection Program (PPP) loan in the amount of

    $198,810.00.

81. The PPP loan could be forgivable if the funds received are used for: payroll costs; costs related to the continuation of group healthcare benefits; mortgage interest payments (but not mortgage prepayments or principal payments); rent payments; utility payments; interest payments on any other debt obligations that were incurred before February 15, 2020; and/or refinancing another specific SBA loan. If not, the PPP loan must be repaid monthly in the amount of $8,370.15, commencing November 1, 2020.

82. Mr. Carroll testified that Legacy intends to use the PPP loan proceeds for salaries. It is unclear at best how Legacy needs funds to pay the salaries of its employees as a result of the COVID-19 pandemic, as those funds are derived from FEFP. It is also unclear if Legacy has done so, or whether it will be required to repay the loan beginning in November 1, 2020. Apparently, Legacy’s belief is that the PPP loan operates as a deus ex machina that solves all of its financial problems, and thus should convince the undersigned that the PPP loan cures and excuses the clear and convincing evidence presented

    
    

    11 The lease originally tied the rent amount to enrollment of students at Legacy. Legacy’s year one enrollment was 165, year two was 235, and year three was 246. Pursuant to an addendum to the lease, the monthly rent was $1,100 per student, but no less than $200,000 in year two, and no less than $449,000 in year three.

    by the School Board that Legacy, time and time again, failed to meet generally accepted standards of fiscal management. It does not.

83. The undersigned finds that the School Board presented clear and convincing evidence that Legacy failed to meet generally accepted standards of fiscal management. Additionally, the School Board presented clear and convincing evidence that Legacy did not manage public funds in a responsible manner.

    1. BACKGROUND SCREENING

84. The School Board contends that Legacy failed to comply with requirements for background screening of its employees and Governing Board members, as set forth in chapter 1012, sections 1002.33(12)(g), 1012.32, 1012.465, 1012.467, and 1012.468, Florida Statutes, and sections 10(I) and

    (J) of the Amended Charter.

85. As part of the 2019 RSM Review, RSM reviewed a sample of employees and Governing Board members for proper background screening. RSM found that two Governing Board members began their positions on the Governing Board prior to obtaining the required background clearance, two substitute teachers had either inaccurate employment records or did not receive the proper background screening before beginning employment at Legacy, and one teacher was not fingerprinted in a timely manner.

86. Dr. Davis then reviewed all payroll, clearance, and database records for Legacy, and concluded that there were other issues concerning Legacy’s failure to conduct background screening. However, the Termination Notice, which forms the basis of this proceeding, only identifies the five persons analyzed in the 2019 RSM Review, as evidence that Legacy failed to comply with background screening laws.

87. Legacy presented evidence that the School District had accidentally deleted a Governing Board member’s background screening information, but that RSM identified this Governing Board member as not obtaining the appropriate background screening. With respect to the other Governing

    Board member, the Governing Board approved of this member, and he received his clearance, during the summer months, when students are not normally on campus.

88. Legacy also presented evidence that, with respect to the other four individuals identified in the 2019 RSM Review as not having obtained the required background clearance, the School District had issued a Notice of Default, as required under the section 12(F) of the Amended Charter, and Legacy had cured that default within the time prescribed in the Notice of Default. In fact, the School District issued written notices of satisfaction with respect to these issues.

89. The undersigned finds that the School District has not established, by clear and convincing evidence, that Legacy failed to comply with background screening requirements for its employees and Governing Board members.

    1. VIOLATION OF LAW AND BREACH OF CONTRACT

90. The School Board contends Legacy failed to comply with law and/or cure material breaches of terms or conditions of the Amended Charter after receiving the School District’s written notice of noncompliance, and that Legacy failed to promote enhanced success and financial efficiency by aligning responsibility with accountability as set forth in sections 286.011, 1002.33(2), 1002.33(7), 1002.33(9)(c), 1002.33(12)(f), 1002.33(16)(b)1., 1012, Florida Statutes, and sections 1(D)(1)(d)(i), 10(C), and 12(F) of the Amended Charter.

91. Many of the School Board’s contentions made under this sub-category are repetitive of issues raised with respect to the other four sub-categories, such as: Legacy’s pledging its assets as collateral for a short-term loan; Legacy’s untimely submission of monthly financial reports; Legacy’s not providing proper minutes of its Governing Board meetings; the Governing Board’s failure to exercise oversight; and the Governing Board’s failure to implement policies and procedures. The undersigned previously found that

    the School Board presented clear and convincing evidence to establish these contentions, and further finds that these also constitute a violation of the provisions of the Amended Charter.

92. Section 10(C) of the Amended Charter states that “teachers employed or under contract to the School shall be certified as required by Chapter 1012.” The School Board presented evidence that Legacy employed two teachers who were not certified, and two who worked out-of-field, but not approved by the Governing Board.12 Legacy presented evidence that the two teachers who lacked certification were substitute teachers, who were not required under Florida law to possess a certification. See § 1012.35, Fla. Stat. The School Board presented clear and convincing evidence that two teachers—Jane Anne Burnett and Vilma Perez—taught out-of-field without the Governing Board’s approval. See Fla. Admin. Code R. 6A-1.503(3).

93. Section 1002.33(9)(p)2. provides that each charter school’s governing board must appoint a parent representative “to facilitate parental involvement, provide access to information, assist parents and others with questions and concerns, and resolve disputes.” Section 1002.33(9)(p)3. provides that this parent representative, or his or her designee, must be physically present at each meeting. The School Board presented clear and convincing evidence that Legacy’s appointed parent representative did not attend four meetings in the 2016-2017 school year, 13 of 15 meetings in the 2017-2018 school year, and six of 13 meetings in the 2018-2019 school year, in derogation of section 1002.33(9)(p).

94. Section 1002.33(9)(p)3. also provides that all governing board meetings “must be noticed, open, and accessible to the public.” The School Board presented evidence, as found in the 2019 RSM Review, that between July 2018 and August 2019, Legacy posted 11 public notices on its website, but that four public meeting notices were not available, one meeting notice

    
    

    12 An out-of-field teacher is one who is certified in a certain area, but teaches in an area outside of his or her certification. See Fla. Admin. Code R. 6A-1.503(1)(c).

    was “corrupted,” and three meeting notices were not posted on Legacy’s website. The 2019 RSM Review also revealed that of these 11 public notices on Legacy’s website, four were not timely noticed under Legacy’s April 2018 Notice of Meeting Policy, which provided that for all regular meetings, “notice should be given to the public at least seven (7) days prior to the meeting.” The School Board presented clear and convincing evidence that Legacy failed to provide notice of its Governing Board meetings, in derogation of section 1002.33(9)(p)3., and its Notice of Meeting Policy.

95. Section 1002.33(9)(p)1. provides that “[e]ach charter school shall maintain a website that enables the public to obtain information regarding the school … and, on a quarterly basis, the minutes of the governing board meetings.” The School Board presented evidence, as found in the 2019 RSM Review, that two of the 15 meeting minutes sampled between July 2018 and August 2019 did not have any minutes posted to Legacy’s website. The School Board presented clear and convincing evidence that Legacy failed on two occasions to post required meeting minutes of its Governing Board, in derogation of section 1002.33(9)(p)1.

96. Finally, the School District introduced evidence that it had issued 26 notices of deficiency between the date of the Amended Charter and the date of the 2019 RSM Review. The School District found that Legacy had not cured 14 of these notices. The undersigned’s review of these 14 uncured notices reveals that they are duplicative of School Board contentions that the undersigned has already found to be established by clear and convincing evidence. The undersigned further finds that the School Board has established, by clear and convincing evidence, that Legacy has defaulted under section 1(D)(1)(d)(i) of the Amended Charter, which provides that good cause for termination includes the failure to cure a material breach of any term or condition after written notice of noncompliance.

97. The undersigned has not overlooked evidence that, after the April 18, 2018, “90 Day Notice of Termination,” and as the parties executed the

    Amended Charter, members of the School District, including Assistant Superintendent Archer, requested that Ms. Montford and Mr. Carroll be removed from their positions as principal and Governing Board Member. While the undersigned may agree with Legacy that such a request was an inappropriate invasion of Legacy’s autonomy, the undersigned cannot overlook the overwhelming evidence presented by the School Board of Legacy’s numerous, well-documented issues that support termination of the Amended Charter, or somehow reason away that these numerous, well- documented issues are actually evidence that the School District has a vendetta against Legacy, which Legacy contends.

    
    

    CONCLUSIONS OF LAW

98. The Division has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to sections 120.569, 120.57,

    and 1002.33(8)(b), Florida Statutes.

99. In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor, in this case the Brevard County School Board. See § 1002.33(1), Fla. Stat.; Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1227 (Fla. 2009). All Florida charter schools are public schools. Id.

100. An administrative law judge (ALJ) has final order authority to resolve the dispute, pursuant to section 1002.33(8)(b), which provides that upon receiving written notice from the sponsor of a proposed termination, the charter school’s governing board may, within 14 calendar days, request a hearing.

101. The burden for establishing a termination of a charter school contract is found in section 1002.33(8)(a), which provides:

     
     

     1. The sponsor shall make student academic achievement for all students the most important factor when determining whether to renew or

        terminate the charter. The sponsor may also choose not to renew or may terminate the charter if the sponsor finds that one of the grounds set forth below exists by clear and convincing evidence:

        
        

        1. Failure to participate in the state’s education accountability system created in s. 1008.31, as required in this section, or failure to meet the requirements for student performance stated in the charter.

           
           

        2. Failure to meet generally accepted standards of fiscal management.

           
           

        3. Material violation of law.

           
           

        4. Other good cause shown.

        
        

102. Section 1(D)(1)(d) of the Amended Charter provides, in pertinent part, that “other good cause” may include:

     
     

     i. Failure to cure a material breach of any term or condition of [the] Charter after written notice of noncompliance;

     
     

     * * *

     
     

     1. Failure to comply with background screening and other requirements set forth in section 1002.33, Florida Statutes;

        
        

     2. Failure … to comply with all applicable laws, ordinances, and codes of federal, state and local governance including, without limitation, the Individuals with Disabilities Education Act (IDEA) and applicable laws relating to English Language Learners (ELL);

        
        

     3. Failure to make sufficient progress in attaining the student achievement objectives of the Charter and a showing that it is not likely that such objectives can be achieved before the end of the Charter term; or

     4. Willfully or recklessly failing to manage public funds in accordance with the law.

     
     

103. The burden of establishing grounds for the termination of the Amended Charter falls on the School Board, as sponsor, which must prove the allegations through clear and convincing evidence. In re Watson, 174 So. 3d 364, 369 (Fla. 2015) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

104. The Slomowitz court described what constitutes clear and convincing evidence as follows:

     
     

     [C]lear and convincing evidence requires that the evidence must be found to be 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 in issue. 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, 429 So. 2d at 800. The Florida Supreme Court has adopted the Slomowitz court’s definition of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994).

105. As set forth in greater detail in the Findings Of Fact above, the School Board established, by clear and convincing evidence, the following grounds for termination contained in the Termination Notice: (a) Legacy failed to meet academic achievement and requirements of student performance under sections 1002.33(2), 1002.33(7)(a)4., 1002.33(8)(a)1., and sections (2) and 9(C) of the Amended Charter13; (b) Legacy failed to comply with all applicable laws, ordinances, and codes of federal, state, and local

     
     

     13 The undersigned notes that section 1002.33(8)(a) does not explicitly require a sponsor to establish, by clear and convincing evidence, that a charter school has failed to meet academic achievement requirements. However, the undersigned finds that the School Board has established this ground for termination by the clear and convincing evidence standard.

     governance including the IDEA, as found in sections 1002.33(2), 1003.571(1)(a), and 1002.33(16)(a)3., rules 6A-6.030191(4)(d) and 6A-

     6.030191(7), and section 3(j) of the Amended Charter; (c) Legacy failed to meet generally accepted standards of fiscal management and/or willfully or recklessly failed to manage public funds in accordance with the law and promote enhanced academic success and financial efficiency by aligning responsibility with accountability as set forth in sections 218.503, 1002.33(9), 1002.33(7)(a)9., 1002.33(2)(a), and 1002.345(1)(a)3., rule 6A-1.0081, and

     sections 4(H), 4(G)(3)(a), and 9(A) of the Amended Charter; and (d) Legacy failed to comply with law and/or cure material breaches of terms or conditions of the Amended Charter after receiving the School District’s written notice of noncompliance, and that Legacy failed to promote enhanced success and financial efficiency by aligning responsibility with accountability as set forth in chapter 1012, sections 286.011, 1002.33(2), 1002.33(7), 1002.33(9)(c), 1002.33(12)(f), 1002.33(16)(b).1., Florida Statutes, and

     sections 1(D)(1)(d)(i), 10(C), and 12(F) of the Amended Charter.

106. The School Board failed to establish, by clear and convincing evidence, that Legacy failed to comply with requirements for background screening of its employees and Governing Board members, as set forth in sections 1002.33(12)(g), 1012.32, 1012.465, 1012.467, and 1012.468, and sections 10(I) and (J) of the Amended Charter.

107. The extensive amount of evidence and testimony presented at the final hearing supports the conclusion that the School Board met its burden, by clear and convincing evidence, and that the School Board may terminate the Amended Charter.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Brevard County School Board may terminate the Amended Charter. The undersigned reserves the right to address whether attorney’s

fees, costs, and sanctions are awardable to the Brevard County School Board. Any such request shall be by motion within 10 days of this Final Order.

DONE AND ORDERED this 18th day of August, 2020, in Tallahassee, Leon County, Florida.

S

ROBERT J. TELFER III

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 18th day of August, 2020.

COPIES FURNISHED:

Debra S. Babb-Nutcher, Esquire

Garganese Weiss D'Agresta & Salzman, P.A. 111 North Orange Avenue, Suite 2000

Orlando, Florida 32801 (eServed)

Christopher Norwood, J.D.

Governance Institute for School Accountability 14844 Breckness Place, Suite 100

Miami Lakes, Florida 33016 (eServed)

Jonathan Clark, Esquire

Law Offices of Jonathan K. Clark 185 Southwest 7th Street, Suite 3100

Miami, Florida 33130 (eServed)

Catherine Hollis, Esquire

Garganese, Weiss, D'Agresta & Salzman P.A. Suite 2000

111 North Orange Avenue Orlando, Florida 32801-2327 (eServed)

Mark W. Mullins, Ed.D. Superintendent

The School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Richard Corcoran Commissioner Education Department of Education Turlington Building, Suite 1244 325 West Gaines Street

Tallahassee, Florida 32399-0400 (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.

Docket for Case No: 19-006424

Orders for Case No: 19-006424