Findings Of Fact On February 15, 1980, the Petitioner held a current, valid Florida Teaching Certificate, was employed by the Duval School Board, and held tenure under the Duval County Teacher Tenure Act. The Petitioner was charged by the School Board with violating the provisions of Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and policies set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board. By Order entered March 17, 1980, the Petitioner was found guilty of all of the charges, and was discharged as a teacher in the school system. [Petitioner's Exhibits 2 and 4] Section DKHA of the Policy Manual establishes procedures for collecting and depositing money that is taken in connection with school activities. Section DKHB establishes procedures for disbursement of funds by classes or clubs at the schools. Section JHC sets procedures for charging admission to entertainment functions sponsored by schools or allied organizations. The polices set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual set more specific guidelines and procedures to be followed in taking and collecting money in connection with school activities. [Petitioner's Exhibit 1] The Duval County School Board Policy Manual, including those sections at issue in this proceeding, were adopted by the School Board after a public hearing was conducted on December 16, 1974. Notice of a public hearing was published in the legal notice section of the Florida Times-Union newspaper in its issues of December 6, 7 and 8, 1974. The manual was not filed with the Department of State, and was not published in either the Florida Administrative Weekly, or the Florida Administrative Code. No citations of authority for the various policies are set out in the manual. [Petitioner's Exhibit 3, testimony of Larry J. Paulk] The Operational Manual for Internal Accounts Activity Fund, including the pages thereof at issue in this proceeding, were adopted by the School Board at a meeting on June 1, 1974. No notice was published, no public hearing was conducted, and no effort was made to promulgate the manual as a rule. The School Board construed the policies as guidelines which implemented rules, rather than as rules. [Testimony of Larry J. Paulk] Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund constitute "rules" as defined in Section 120.52, Florida Statutes. [Petitioner's Exhibit 2]
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
The Issue An administrative complaint dated March 14, 1995, seeks termination of Karen Denbo’s annual contract of employment pursuant to Section 231.36, Florida Statutes, based on the following alleged falsifications of her Orange County Public Schools employment application: misrepresenting the reasons for separation from her last public school assignment; falsely stating her prior employment positions; and falsely identifying her immediate supervisor in her last public school assignment. The issues for disposition in this case are whether Karen Denbo committed the alleged violations and if so, whether discipline pursuant to Section 231.36, Florida Statutes, is appropriate.
Findings Of Fact From approximately 1966, until her suspension without pay by the Orange County School Board in March 1995, Karen Denbo was employed in various teaching and administrative capacities by school boards in Indiana, Georgia and Florida. She also worked on a grant project at the University of Florida, Gainesville, Florida, in 1993 and 1994. On July 6, 1994, Karen Denbo submitted an employment application to the Orange County Public Schools. Her signature appears below this printed statement on the form: I certify that all information given on this application is true and complete. I agree, if employed, to abide by all school board rules, regulations and policies, either published or in effect by usage, and all rules, regulations and laws of the State of Florida as may be required by Florida Statutes, Florida State Board of Education, and the School Board of Orange County, Florida. I understand that any misrepresentation, omission or incorrect statement of facts called for in this application is cause for a refusal to hire me or my termination if I am hired. It is understood that as a condition of employment, I must have on file an acceptable health certificate, tuberculin test and medical history form. (Petitioner’s Exhibit 1) The application includes, on the form and again on a separate work history sheet, this information regarding Karen Denbo’s employment in Brevard County: YEAR NAME/ ADDRESS OF SCHOOL GRADE OR SUBJECT NO. OF MONTHS PRINCIPAL/ SUPERVISOR REASON FOR LEAVING 86/92 Brevard Director/ 72 Jerry Budget cut Co. Public Coordinator Copeland backs Schools EEO/AA position Melbourne, Florida Guidance Counselor eliminated (Petitioner’s Exhibit 1) After an interview in August 1997, Ms. Denbo was hired by Orange County Public Schools as a counselor at Chickasaw Elementary School. Gail Pender was the principal who recommended Karen Denbo for the position. Karen Denbo’s duties included serving as a staffing coordinator for exceptional education services at the school. Sometime after it hired Karen Denbo, Orange County Public Schools learned that her employment history in Brevard County was substantially more complicated than was reflected on the small spaces provided on the application form. The whole truth would have taken pages to explain. Karen Denbo worked for the Brevard County School Board from August 6, 1986, until June 30, 1992, when her employment contract was not renewed. Her immediate supervisor for the first four years was Dr. Jerry Copeland, assistant superintendent for personnel. She worked in the district personnel office for five years with various, but similar duties: personnel specialist, administrator, EEO compliance officer, and coordinator of the Florida Educational Equity Act. Her formal position title for funding purposes was something general like “personnel specialist, administrative contract.” In the 1990-91 school year, Daniel Scheuerer was Karen Denbo’s immediate supervisor. When her position was deleted for the 1991-92 school year and the duties assigned to other district employees, Karen Denbo transferred to Challenger Elementary School as a guidance counselor in July 1991. Julia Bumgarner was principal at Challenger Elementary School and was Karen Denbo’s immediate supervisor for the 1991-92 school year. At the close of that school year Ms. Bumgarner advised Karen Denbo that she was not recommending her for reappointment for the next year because her performance was unsatisfactory. Mrs. Bumgarner provided a written evaluation to Karen Denbo, dated April 29, 1992, which stated: Due to the overall unsatisfactory performance rating as described herein, I am not recommending your reappointment for the 1992-93 school year. (Petitioner’s Exhibit 10, Bumgarner deposition) An interim evaluation dated February 19, 1992, had also been unsatisfactory and had warned that failure to show substantial improvement by May 1, 1992, would result in Karen Denbo’s not being recommended for a subsequent annual contract. Karen Denbo responded in writing to both evaluations. Included in those responses and included in her testimony at hearing was her assertion that the evaluations were part of the Brevard County School Board’s continued harassment of her in retaliation for her lawsuit against the school board and various individuals. The lawsuit to which Karen Denbo referred was initiated on August 16, 1990, with her charge of discrimination filed with the Florida Commission on Human Relations. The charge included her allegations that assistant superintendent, Jerry Copeland, sexually assaulted and harassed her. Subsequent charges of retaliation were filed, as well as follow-up lawsuits in the U.S. District Court for the Middle District of Florida. The lawsuits named as defendants the School Board of Orange County, Jerry Copeland, Superintendent Abraham L. Collinsworth, and Daniel T. Scheuerer, individually and in their official capacities. Karen Denbo filed a third charge of discrimination with the Florida Commission on Human Relations on February 11, 1993, and filed another federal lawsuit thereafter. All of the claims by Karen Denbo against the Brevard County School Board were settled with a general release dated June 30, 1993. The settlement agreement provides, in pertinent part: The Defendants will pay Plaintiff the sum of $325,000 and agree to the following conditions: 1) annual reviews for 91 and 92 will be removed from present file and placed in file to be maintained by School Board Attorney; 2) annual reviews will be prepared by last supervisor for 87, 88, 89 and 90 to reflect satisfactory performance; 3) Indiana University placement form will be filled out by Copeland and reflect satisfactory performance. (Petitioner’s Exhibit 8) In abbreviating her Brevard County work history on the Orange County Public Schools application, Karen Denbo relied, in part, on the settlement agreement. Jerry Copeland, her supervisor for four of the six years, was required to provide a satisfactory performance statement for Karen Denbo’s Indiana University placement file. She knows that he was not her “immediate supervisor” for the final two years, but the more recent two annual reviews, clouded by the pendancy of the lawsuits and Karen Denbo’s claims of retaliation, were removed from her personnel file. Karen Denbo also relied on her understanding that in both June 1991 and June 1992 her positions were eliminated for budget reasons. This understanding was bolstered by her knowledge of a newspaper article dated August 6, 1992, reporting that Karen Denbo was “one of the 88 annual-contract teachers who lost their jobs to budget cuts.” (Respondent’s Exhibit 4) The same article quoted the teachers’ union president as stating that the job cut was to make sure Karen Denbo was out of the system. By fall 1992, Karen Denbo began having negative interactions with her Chickasaw Elementary School principal, Gail Pender, in Orange County. Karen Denbo attributes the problems to Ms. Pender’s finding out that Karen Denbo was the person who had the charges against the School Board of Brevard County. In December 1994, the Orange County School Board placed Karen Denbo on relief duty with pay, pending investigation into allegations of falsifications of her application. She was suspended without pay in February 1995, and was recommended for termination on March 14, 1995. The administrative complaint by Superintendent, Dr. Donald Shaw alleges: The Respondent, Karen Denbo, at all times material to this Administrative Complaint, was employed as a guidance counselor by the School Board of Orange County, Florida. That Respondent, Karen Denbo, holds an annual contract of employment with Petitioner. That on or about July 6, 1994, Respondent, Karen Denbo, did falsify her Orange County Public Schools employment application which is just cause for termination of Respondent’s employment contract with the School Board. The falsifications are: Misrepresenting the reason for separation from her last public school assignment. Falsely stating her prior employment positions. Falsely identifying her immediate supervisor in her last public school assignment. That actions by the Respondent, Karen Denbo, constitute just cause for termination of her employment agreement with the School Board, for reasons including but not limited to gross insubordination, willful neglect of duty, misconduct, a violation of the code of ethics for professionals in the education profession in the State of Florida and a violation of the terms of her employment with the School Board of Orange County, Florida. Such grounds are sufficient to sever the contract status of Respondent and to terminate her employment with the School Board of Orange County, Florida. When Karen Denbo stated on her employment application that her position was eliminated through budget cuts, this was the truth, if not the whole truth. She had ample basis to assume that her positions for 1991-92 and 1992-93 were eliminated. For example, and in addition to the news article and statements of her union president, Karen Denbo had a copy of this February 25, 1993, letter from Howard Hickman, Director of Personnel Services, Brevard County School Board, to the superintendent of an Indiana school district who was seeking a reference: Dear Superintendent Fulk: Please find my response to your recent letter of inquiry regarding the employment history of Ms. Karen Denbo with the School Board of Brevard County, FL. Ms. Denbo began her employment with the School Board of Brevard County on 08/06/86 as a Compliance Officer/Personnel Specialist. Her primary responsibilities were to represent the school district in issues of compliance and equity. Due to budget consideration, the position of Compliance Officer, along with several other district positions, was eliminated for the 1991-92 school year. Compliance and equity issues were assigned to other district employees. Ms. Denbo transferred to Challenger Elementary School as a guidance counselor in July, 1991. Based upon staffing priorities at Challenger 7 Elementary School, Ms. Denbo was not reappointed for the 1992-93 school year. (Respondent’s Exhibit 1) In his deposition, Howard Hickman responded to questions by counsel for the Orange County School Board: By Mr. Kruppenbacher: Q. Mr. Hickman, am I correct that in School Board language, or School Boardese...the non- renewal of an annual contract teacher is not considered to be disciplinary action but is considered, to be the School Boards’ right to simply non-renew? A. That would be my understanding. (Petitioner’s Exhibit 9, p. 21, ll. 7-16) Karen Denbo’s designation of Jerry Copeland as her “principal/supervisor” was likewise a justified over- simplification. He was her supervisor for four years, and the settlement agreement super-imposed him above or replaced, the two other subordinate supervisors whose roles were clouded by the charges of retaliation. Jerry Copeland’s employment recommendation, in Karen Denbo’s possession and attached to her Orange County School Board application, is consistent with his role: July 28, 1993 EMPLOYMENT RECOMMENDATION RE: Ms. Karen K. Denbo To Whom it May Concern: Ms. Karen K. Denbo was employed on August 6, 1986 as Compliance Officer. She bravely accepted the challenge of this assignment even though her prior experience was one of school based administration and/or guidance/student services. To accept this assignment with such confidence was appropriately interpreted by this agency as being an individual who is academically competent, professionally aggressive and with a full capacity to grasp a new job which is controlled by regulations, statutes, administrative rules, board rules, labor contracts, case law, past practice, and a list of other detailed items to numerous to mention. During this time of service, Ms. Denbo has responded to more employment charges and complaints on behalf of the district in a shorter period of time than all of her predecessors combined. To date, every case has been dismissed without a finding of probable cause, settled without economic impact on the district or referred to another agency due to circumstances beyond the control of the school system. Ms. Denbo has an unusual gift for the written word. These materials contain, at times, an unbelievable degree of materials requiring hours of analytical compilation. It is, therefore, with pleasure that I offer this unequivocal employment recommendation. To find these talents in an individual in my opinion, is unique and offers a very promising opportunity for your agency. Sincerely, Jerry P. Copeland Assistant Superintendent Personnel Services (Petitioner’s Composite Exhibit 1) Finally, the descriptions of Karen Denbo’s positions in Brevard County on her application form are plainly descriptions of her functions, rather than formal position titles. She was a guidance counselor and revealed that; she also was an EEO/affirmative action compliance officer, and based on her own uncontroverted testimony and the several recommendations attached to her application, she directed the Brevard County School Board’s compliance in those areas. There is no evidence that she was one of several individuals performing the same function under a separate “director.”
Recommendation BASED on the foregoing, it is, hereby RECOMMENDED: That the School Board of Orange County issue a Final Order dismissing its charges against Karen Denbo and providing back pay from the date of her suspension without pay through the end of the 1994-95 contract year. DONE AND ORDERD this 27th day of June, 1997, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Kruppenbacher and Associates, P.A. Post Office Box 3471 Orlando, Florida 32801-3471 James G. Brown, Esquire Brown and Green, P.A. Post Office Box 3108 Orlando, Florida 32802-3108 G. Ware Cornell, Esquire Victoria Park Centre, Suite 204 1401 East Broward Boulevard Fort Lauderdale, Florida 33301 Thomas H. Yardley, Esquire Building C2 1970 Michigan Avenue Cocoa, Florida 32922 Dr. Donald Shaw, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether just cause exists to reprimand and suspend Respondent, Thomas Caggiano, for five days without pay from his position as a teacher with Petitioner, the School Board of Duval County (School Board),1 for the reasons set forth in the March 26, 2021, correspondence from the School Board, which contained an April 6, 2021, Amended Step III Progressive Discipline Petition.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise free public schools within Duval County Public Schools. See Art. IX, § 4(b), Fla. Const.; § 1012.33(1)(a), Fla. Stat. The School Board and Mr. Caggiano executed a professional service contract, as defined in section 1012.33, Florida Statutes, and he has been employed by the School Board since 1994. The School Board has renewed this professional services contract on an annual basis. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education rules, and the Collective Bargaining Agreement (CBA) between Duval Teachers United and the School Board. The CBA relevant to this matter was effective from 2017 through 2020.2 Mr. Caggiano’s Employment at SHS Mr. Caggiano had been a math teacher at SHS for numerous years, including the time period relevant to the allegations of the Amended Step III Progressive Discipline correspondence. He currently remains employed by the School Board, but is currently not a math teacher at SHS. During his career with the School Board, Mr. Caggiano received positive employment evaluations. Prior to the allegations at issue, the School Board had never disciplined Mr. Caggiano. During the 2019/2020 school year, Mr. Caggiano taught Algebra II. During his career at SHS, he also taught geometry, trigonometry, analytic geometry, calculus, and statistics. He also taught college-level classes for Embry-Riddle Aeronautical University during this time. As a teacher at SHS and an employee of the School Board, Mr. Caggiano received numerous and various training materials and updates concerning governing policies and procedures, electronically (via email). 2 The CBA entered into evidence, without objection, and which was unexecuted, states on its cover page that it is effective from 2017 through 2020. However, the same document, in Article XV, section C, states that it is effective from July 1, 2014, through June 30, 2017. As the Amended Step III Progressive Discipline letter references the 2017-2020 CBA, and as no party objected to the CBA that the undersigned accepted into evidence, the undersigned has treated the CBA entered into evidence as the CBA that was in effect during the allegations concerning Mr. Caggiano. Many of these materials were provided to Mr. Caggiano prior to faculty and staff training, which occurred in the weeks leading up to the start of the school year. Among the various materials provided to Mr. Caggiano (and other faculty) was a handout entitled “Ethics and Professionalism,” provided by Duval County Public Schools’ Office of Equity and Inclusion/Professional Standards. SHS also provided Mr. Caggiano (and other faculty) a link to its handbook, which contained policies, laws, and rules that govern Mr. Caggiano. The “Ethics and Professionalism” training materials contained a section on social media, and stated: Please ensure that personal social media accounts are set to private. Do not accept friend requests from students or their parents, and use discretion when inviting colleagues to your pages. Please ensure that your social media posts are respectful and do not possess profane, insensitive, or offensive language or images. As a reminder, you may not post photographs or identifying language about your students. It is a violation of FERPA. In the Acceptable Use Policy (2.1.11), it states “Employees must maintain professional boundaries between themselves and students. Employees will not solicit or engage in inappropriate communications with students verbally, in writing, or electronically regardless of the age of the student. Employees will not engage in any direct electronic communications with students, parents, supervisors, or co-workers whether by e-mail, instant messaging, or other digital media that will adversely affect the employee’s ability to perform his or her job.” Here are some best practices to follow: You are the adult, the teacher, the professional. You are not their friend. You are in violation of the Code of Ethics if you post disparaging comments about your colleagues, administration, and/or the Superintendent. Do not post material that is illegal, sexually explicit, obscene, derogatory, related to alcohol or drug use, or in violation of copyright laws. Do not access social networking sites from your school computer or during work time. Be cautious about photos posted online. Students and parents could view them! Any information posted to, or communicated through, a social networking site shall not bring disfavor, embarrassment or condemnation to the student, employee or school district. Mr. Caggiano (and other faculty) further received materials and training related to the School Board’s Non-Discrimination Policy (Board Policy 10.10), which states: Duval County Public Schools (DCPS) believes that education should be provided in an atmosphere where differences are understood and appreciated, and where all persons are treated fairly and with respect, and where all persons are free from discrimination, harassment and threats of violence or abuse. School board policy explicitly states, “No person shall, on the basis of a person’s actual or perceived identity with regard to race, color, religion, gender or gender identity, age, marital status, disability, sexual orientation, political or religious beliefs, national or ethnic origin, veteran status, or any other distinguishing physical or personality characteristics, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity on in any employment conditions or practices conducted by this School District, except as provided by law.” Previous Incident Involving Transgender Student J.N.S. J.N.S., a student at SHS, is a female transgender student and has identified as female at least since the 2018-2019 school year, her freshman year. In the summer before her sophomore year, after receiving her class assignments for the new academic year, J.N.S. sent an email to all of her new teachers, including Mr. Caggiano. The August 5, 2019, email, sent at 9:21 p.m., stated: I will be in your class during the 2019-2020 school year, and I would like to let you know that I am a Male-to-Female Transgender student who would like to go by the name [J.N.S.] as well as female pronouns in your class. I am sending this email before the actual school year starts so that there is plenty of time to change it on the roll before then if possible. Thank you very much for carrying out my request, I can’t wait to attend your class this year. That same evening, Mr. Caggiano responded to J.N.S.’s email: I will call you by any reasonable name you like, but the pronouns are not a negotiable thing for me. I will NOT refer to you with female pronouns. If this is not acceptable for you change classes. J.N.S. testified that most of her remaining teachers responded to this email in a positive fashion, agreeing to her request. J.N.S. also testified that she posted her email interaction with Mr. Caggiano on one of her social media platforms. On August 6, 2019, during the faculty pre-planning period before classes started, SHS held a mandatory training session presented by Dr. Wells as part of the Duval County Public Schools’ “All In: Ally for All” program. As part of this training, Dr. Wells presented various Duval County Public Schools policies that included the treatment of transgender students, including that transgender students had a right to be called by names that they chose. Principal Hatcher also attended this training, and stated that all students had a right to be called by their requested names, including pronouns. A sign-in sheet reflected that Mr. Caggiano attended this training session, although Mr. Caggiano testified that he did not recall attending. On August 7, 2019, J.N.S. contacted the SHS school counselor, Ms. Solliday, to request a transfer out of Mr. Caggiano’s class. After conferring with SHS Assistant Principal Motley, Ms. Solliday transferred J.N.S. to a different class with a different teacher. J.N.S. never attended Mr. Caggiano’s class, was never his student during the 2019-2020 school year, and has never been a student in Mr. Caggiano’s class. On August 12, 2019, Principal Hatcher met with Mr. Caggiano regarding his email response to J.N.S. and to counsel him regarding Duval County Public Schools’ policies for addressing students. Principal Hatcher informed Mr. Caggiano that he should use whatever name or pronoun a student asks to be called. Mr. Caggiano testified that he told Principal Hatcher he would stop using all pronouns, and refer to a student by the name requested. Although the School Board devoted a significant amount of time and effort at the final hearing to this incident involving Mr. Caggiano’s response to J.N.S.’s email request, this incident is not part of the Amended Step III Progressive Discipline correspondence that is the subject of the instant action. Dr. Hatcher counselled Mr. Caggiano on this issue. The undersigned heard testimony of various students, faculty, administrators, and even a school psychologist concerning this incident, which the undersigned finds provides background to the issues included in the Amended Step III Progressive Discipline correspondence; however, this particular incident does not form the basis for the proposed discipline in the instant proceeding. Mr. Caggiano’s Use of Facebook Mr. Caggiano testified that he decided to set up a Facebook account sometime in 2008, to catch up with old friends. He testified that his daughter, Arielle, actually set up the account, and told him that his account’s settings were “private.” Thereafter, Mr. Caggiano stated that he posted and commented on posts of his Facebook “friends,” and because he believed his settings were “private,” he believed that only those “friends” could see those posts and comments. He testified that “[a]ll my posts were either political commentary, social commentary, or adult humor.” Mr. Caggiano did not accept any of his students as Facebook “friends,” but did have a few fellow SHS teachers as Facebook “friends.” He testified that he did not think anybody from SHS would be able to see his Facebook posts, aside from the fellow SHS teacher “friends.” Additionally, at some point in the past, Mr. Caggiano set up a separate Facebook account, called “AP Caggiano,” for students in an advanced placement class to post questions or comments concerning a class. Mr. Caggiano testified that he had not used that particular Facebook account in some time. Mr. Caggiano also testified that he never accessed his Facebook account at SHS or during his normal work hours. Mr. Stika, who was a forensic examiner in the Information Technologies department of Duval County Public Schools, testified that Mr. Caggiano did not use his school- issued laptop to access Facebook during the time period relevant to the instant matter. Amended Step III Progressive Discipline On May 19, 2020, the Duval County Public Schools Office of Equity and Inclusion/Professional Standards received an email concerning Mr. Caggiano’s Facebook postings. On May 21, 2020, the Florida Times Union published a story concerning Mr. Caggiano’s Facebook postings and comments. The May 19, 2021, email, and the May 21, 2020, newspaper article, caused an investigation into Mr. Caggiano’s Facebook posts and comments, conducted primarily by Mr. Johnson. Mr. Johnson interviewed parents, students, former students, Principal Hatcher, Mr. Stika, and Mr. Caggiano, as part of this investigation. His findings form the basis for the Amended Step III Progressive Discipline correspondence. As alleged in the Amended Step III Progressive Discipline correspondence, the complainant provided screenshots of Mr. Caggiano’s Facebook postings. Mr. Johnson’s investigation discovered a Facebook account in the name of “Thomas Caggiano,” who was listed as a Duval County Public School teacher. Mr. Caggiano admitted that the Facebook account referenced in the Amended Step III Progressive Discipline correspondence was his personal Facebook account, which his daughter initially set up. As reflected in the Amended Step III Progressive Discipline correspondence, the investigation revealed Mr. Caggiano, commencing on or about January 2020, admitted to 27 various Facebook posts, reposts, or comments. The Amended Step III Progressive Discipline correspondence specifically alleges that “some of your posts and/or comments were as follows[,]” and then lists seven specific posts, reposts, or comments from Mr. Caggiano’s personal Facebook account.3 At the final hearing, the undersigned heard testimony and considered evidence of Mr. Caggiano’s Facebook posts, reposts, or comments, including Mr. Caggiano’s testimony, and finds that Mr. Caggiano’s Facebook account reflects the following posts and reposts—which could be considered “memes,” which can be defined as amusing or interesting pictures, videos, etc., that are 3 The School Board introduced into evidence other Facebook posts, reposts, or comments attributed to Mr. Caggiano, and questioned numerous witnesses about this “other” Facebook activity. The undersigned has only considered the allegations contained in the Amended Step III Progressive Discipline correspondence in determining whether the School Board has just cause to discipline Mr. Caggiano. spread widely through the internet or social media—or comments to memes or articles, that were made, or reposted, by Mr. Caggiano. These seven posts, reposts, or comments, which are the only posts, reports, or comments alleged in the Amended Step III Progressive Discipline, are: A repost from a Facebook entity called “Messenger of Liberty,” which states: “My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he’s been spit on, punched and had a bottle thrown at him! I’m curious to see what happens when he goes outside.”; A repost from an individual and an entity called “LIFT – LONG ISLANDERS FOR TRUMP,” which states: “Crazy but TRUE, If this girl sees a penis at a party it’s a crime … [with an accompanying photograph of a young woman], but if this girl sees a penis in the woman’s bathroom … it’s tolerance [with an accompanying photograph of a girl in a bathroom]. Vote Republican and put an end to the madness.”’ A post authored by Mr. Caggiano which states: “Dumb ass liberals are now organizing protest against the killing of the Iranian general (terrorist) who was responsible for many attacks against the USA. Amazing how TRUMP derangement syndrome can cause democraps, and the main stream media, to support our enemies.”; A repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…” The “screen grab” attributes this quote to Bernie Sanders, currently a United States Senator from Vermont, sometime in the 1970’s (the exhibit copy is unclear), and Mr. Caggiano’s handwritten notes next to this exhibit states” “Bernie said this!”; A repost from a Facebook entity called “Maine Bikers,” which states: “Meanwhile at the ‘Bikers for Bernie’ rally…[,]” and which contains a picture of two nude men on a motorcycle; What appears to be an attempted repost by Mr. Caggiano, which Facebook apparently removed with the message “False information, Checked by independent fact-checkers,” but which also contains the following comments from Mr. Caggiano: “Teach this childish nasty bitch a lesson. Have her treasonous ass removed from office and put in jail.”; and A repost, dated August 19, 2020, from Mr. Caggiano, of an article from an entity called “Lifesitenews.com,” with a headline that states, “Teen girls stage school walkout to protest boys in their bathroom who claim to be ‘girls’”; and to which Mr. Caggiano commented, “Love it! About time people stood up to this insanity.” The Amended Step III Progressive Discipline correspondence further alleges: Resulting from our Facebook postings, your school and district leadership were both impacted as they received several complaints and/or concerns from students, parents and constituents expressing their displeasure with your conduct as a Duval county teacher and the comments displayed within your Facebook account. Many parents also contacted the school and informed the principal that they would not want their children in your class for the 2021- 2021 school year. If this administrative action had not occurred, the public consequences would cause an equity issue for other teachers by redistributing your assigned students or assignment of replacement teachers. While you are certainly entitled to your First Amendment right to free speech, your actions are in direct contradiction to the District’s mission to “Provide educational excellence in every school, in every classroom, for every student, every day.” This is without regard to a student’s ethnicity, race, religious beliefs, gender orientation, political persuasion, or any other qualifier. In addition, the Principals of Professional Conduct of the Education Profession in Florida (Florida Administrative Code 6A-10.081), requires that an individual, “Take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.” As an educator you have a duty and/or a responsibility to maintain the respect of the community and your colleagues. You posted and/or shared inappropriate, derogatory, demeaning and inflammatory material and comments referencing sexual orientation, national origin, and domestic abuse on your public social media (Facebook) account. Your conduct was unethical, lacked integrity and violated Duval County School Board policy, as such, warrants corrective discipline. The Amended Step III Progressive Discipline correspondence alleges that Mr. Caggiano’s Facebook posts, reposts, and comments violated section 1006.147, Florida Statutes; Florida Administrative Code Rules; rules 6A-5.053 and 6A-10.081, and Duval County School Board Policies 6.80 and 10.10. It further alleges that, pursuant to article V, section 9, of the CBA, which concerns “potential harm to the physical or mental wellbeing of a student, or students, constitutes more severe acts of misconduct which warrant circumventing progressive disciplinary steps,” and imposed discipline of a written reprimand, five consecutive working days of suspension without pay, and a requirement that Mr. Caggiano complete a course in “Culture Diversity” by a certain date.4 Additional Facts Concerning Mr. Caggiano’s Facebook Account J.N.S. testified that at some point after her email interaction with Mr. Caggiano, she was “curious” and decided to access his Facebook account, 4 A review of the CBA in evidence shows that the provision of the CBA that addresses progressive discipline may be found in article V, section C, subsections 9 and 10. and saw numerous posts, including some of the posts that form the basis of the School Board’s proposed discipline. She stated that she was “appalled, but not surprised.” She also testified that the Florida Times Union reporter who authored the May 21, 2020, article about Mr. Caggiano reached out to her through social media concerning Mr. Caggiano. Ms. Schultz previously served as SHS Principal during the time period that Mr. Caggiano taught at SHS. She recalled seeing Mr. Caggiano’s posts that were “forwarded” to her, and she thereafter communicated directly with Mr. Caggiano. She stated that she asked Mr. Caggiano to remove his Facebook posts. In an email exchange between them, after Ms. Schultz informed Mr. Caggiano that she was able to access his Facebook account numerous times after he stated that he had changed his account settings to private, Mr. Caggiano wrote: Thank you for your email. I have had my daughter assist me in making my Facebook account settings “private,” and I have changed my account password. I am going through and removing a number of posts that were made by people that I do not know. I do not want to shut the entire account down, because I have a number of personal photos of my grandkids and me. Please confirm whether you are still able to see the Facebook “wall” for my account. I want to make sure the settings are properly adjusted so that only people whom I accept as “friends” can see what I post at this time. As you are aware, I have also received inquiries from the Duval County Public Schools Equity & Inclusion/Professional Standards supervisor …. In the emails, [he] provided me with a link to a Times- Union article by reporter Emily Bloch. [He] inquired whether I posted the items in question, on my Facebook account, as attributed by the writer of the article. I have reviewed the article. The article indicates that I am not obligated to respond to [his] inquiry. The article states that a “note from the Office of Equity and Inclusion and Professional Standards added that an inquiry ‘could take some time, as the office cannot compel anyone to meet or speak with us’,” and that I “did not directly reference a student of direct [my] posts at a student in [my] posts,” nor identify myself as a Duval County Public Schools teacher in my posts. Please confirm whether the article’s statement is accurate, as I prefer to only respond on this issue as I am obligated and as is otherwise necessary. For the record, I view Emily Bloch’s article as a well- timed political hit piece, full of inaccuracies, targeting me for my political views on issues of sexuality, to promote the latest version of the “need” for the City of Jacksonville Human Rights Ordinance (“HRO”), which was illegally passed back in 2017, and recently struck down by a Florida court. It is a transparent attempt to torpedo a good teacher’s career, to score political points. I hope the Duval County Schools will not countenance this reporter’s efforts to manufacture an issue to promote her political causes, especially where the public cannot come out to oppose the latest ordinance, because of Coronavirus. I treat all of my students with dignity and respect, and my classroom record speaks for itself. I will not lie to my students. I treat all of them with honesty and fairness. On the other hand, I make no secrets that when I am not acting in my official capacity as a Duval County Schools teacher, I do engage in robust political debate on political issues. I deny making any kind of “phobic” remarks or posts. A “phobia” is an irrational fear. Holding traditional views about the biological nature of sex (and need for sex-based privacy in bathrooms and lockers) is not a “phobia.” Disagreement with the political orthodoxy of the Left on matters of sexuality is not a “phobia.” Sharing my belief on my personal Facebook that there are only two genders that correspond with biological sex is not a “phobia.” Ms. Bloch may not like the way I make those points, and that is fine. Since I have been active on Facebook, I know I have shared various political memes on my personal Facebook wall, or commented in response to others’ postings. I do not instantly recall them all. Memes are often a good way of making pithy political statements, with a touch of humor. Sometimes “humor” is in the eye of the beholder, or is funny at the time. I’m sure I found certain memes funny or punchy at the time, and I have friends who did as well. I’m sure others may not find them funny, or may disagree with me, as is their right. I have not gone back through the last year’s worth of Facebook postings, and I am unable to verify some of Ms. Bloch’s attributed quotes. I can confirm that the account settings are now “private.” I stand by a number of statements Ms. Bloch attributes to me (or at least, I agree with the sentiments expressed, where they may have been posted by me or others). Others I do not. I will also note that at least one of the specifically quoted references in Ms. Bloch’s article was taken out of context, and she uses that out-of-context quote to suggest my remarks are “racist” or “xenophobic.” I’m neither. In fact, some of my beautiful grandchildren are “biracial” (for lack of a better term – there is only one “race”– the human race). But even having to make that note is offensive, and suggests bigotry and prejudice on the part of Ms. Bloch in leveling that charge against me. For the record, the “corona” or “covid” food reference was a political jab at President Trump’s references to the “CHINA” virus. Nothing more, nothing less. I trust that the Duval County Schools will continue to respect the rights of teachers to engage in robust political debate on Facebook, on matters of public concern (such as the political “transgenderism” movement – “Exhibit A” of which is the novel “lexicon” Ms. Bloch placed in her article, purporting to tell the public which terms are acceptable in the debate, and which are not). The First Amendment surrounds political speech with the highest level of protection, whether some people find the speech of others “offensive,” or wish to silence speakers with whom they disagree. Mr. Caggiano and his daughter, Arielle, testified that it was, and has been, Mr. Caggiano’s intention that his Facebook account settings be “private” so that only his “friends” could see them, and that after the May 21, 2020, Florida Times Union article, they both checked and saw that it was not set to private. Arielle then set Mr. Caggiano’s settings back to private. The School Board called numerous witnesses, including students and parents, who testified about accessing Mr. Caggiano’s Facebook account. None of the student witnesses (including J.N.S.) were students of Mr. Caggiano. Ms. Porak, a parent of students at SHS, testified that neither of her children had Mr. Caggiano for a teacher. The various student and teacher witnesses discussed a number of Mr. Caggiano’s Faceook posts, reposts, and comments, only some of which were contained in the Amended Step III Progressive Discipline correspondence. Impact of Mr. Caggiano’s Facebook Posts After the publishing of the May 21, 2020, Florida Times Union article, school officials, including Ms. Schultz and Dr. Hatcher, testified to receiving numerous complaints. The undersigned received into evidence numerous complaints from parents concerning Mr. Caggiano’s Facebook posts, some of which were included with Mr. Johnson’s investigative report. Some of these parents also testified at the final hearing concerning their complaints and feelings concerning Mr. Caggiano’s Facebook activity. These parents testified that they felt Mr. Caggiano’s Facebook posts were inappropriate for a teacher. Assistant Principal Motley testified that a total of four students (not including J.N.S.) requested and were transferred out of Mr. Caggiano’s classes during the Spring 2020 semester. Dr. Hatcher testified that after the Duval County Public Schools removed Mr. Caggiano from SHS, it took part of the Fall 2020/2021 semester to hire a full-time replacement teacher. During that semester, several substitute teachers taught what would have been Mr. Caggiano’s math classes before SHS hired a full time teacher. Ms. Brennan testified that Mr. Caggiano’s Facebook posts impacted J.N.S. negatively. Ms. Brennan did not perform a psychological assessment of J.N.S.; the School Board requested that Ms. Brennan provide emotional support to J.N.S. during her preparation as a witness in this matter in March 2021—more than a year after J.N.S. testified that she read Mr. Caggiano’s Facebook posts. Ms. Brennan testified that J.N.S. has experienced symptoms of depression. She also testified that J.N.S.— previously an A-B student her freshman year, and who had few absences her sophomore year—had approximately 345 separate class absences from school her junior year and was retained. Mr. Caggiano’s Explanation Mr. Caggiano admitted to having authored the Facebook posts, reposts, and comments that are contained in the Amended Step III Progressive Discipline correspondence and detailed in paragraph 29 above. Mr. Caggiano testified that his daughter Arielle “did everything” in setting up his Facebook account, to ensure that his settings were private so that only people he accepted as “friends” could see his posts, reposts, and comments. He further stated that, for the approximately 10 years after establishing his Facebook account, he believed his settings were private. After learning in 2019/2020 that members of the public could view his Facebook account, he again asked Arielle to ensure that it was private. Mr. Caggiano believes his Facebook account was “hacked.” He testified that he believed it to be set to private, and after learning otherwise, “fixed” it. Then, he found it was “public” again. As there was no additional testimony or evidence concerning whether Mr. Caggiano’s Facebook account was hacked, the undersigned does not credit this explanation. Mr. Caggiano testified about the seven posts, reposts, or comments that are the subject of the Amended Step III Progressive Discipline correspondence and detailed in paragraph 29 above. Mr. Caggiano did not express any regret in making any of these Facebook posts, reposts, or comments. With respect to Mr. Caggiano’s repost from a Facebook entity called “Messenger of Liberty,” which states, in part, “My son is taking part in a social experiment[,]” Mr. Caggiano testified that “it’s funny. All my posts were either political commentary, social commentary, or adult humor. And that’s funny. Okay. So for somebody to look at that and not giggle at least, you know, I don’t think you know what funny is. That’s funny.” This particular repost states that, after his son wears a “Bernie” t-shirt, “[s]o far he’s been spit on, punched and had a bottle thrown at him.” Although Mr. Caggiano testified that he believed this to be “funny,” the undersigned finds that it also could be logically read to encourage violence against a child. With respect to Mr. Caggiano’s repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…[,]” and which attributes this quote to Bernie Sanders, sometime in the 1970’s (the exhibit copy is unclear), Mr. Caggiano testified that it was not his opinion, but that he was quoting Bernie Sanders, and that “people should know somebody who’s a sitting senator, twice presidential candidate, former mayor of New York City, has this sort of mentality.” On cross-examination, when asked if “women, teenage girls, could be offended by this post[,]” Mr. Caggiano testified, “I think everybody should be offended by this.” The undersigned finds that despite Mr. Caggiano’s belief that his post makes an important point about Bernie Sanders, the undersigned finds that it can be logically read to be patently offensive, discriminatory, and degrading to women. Mr. Caggiano’s own testimony confirms this. The undersigned finds that the remaining posts, reposts, or comments, can be fairly characterized as political memes that, depending on the viewpoint of the reader, could be characterized as crude political commentary, passionate advocacy, or humor. While these postings, which are generally consistent with a conservative ideology, might not originate from more traditionally respected sources like the National Review or the opinion page of the Wall Street Journal, they are the type of abrasive political speech that one regularly finds in social media. In particular, with respect to Mr. Caggiano’s repost of the meme entitled “Crazy but TRUE,” and the article from an entity called “Lifesitenews.com,” with a headline that states, “Teen girls stage school walkout to protest boys in their bathroom who claim to be ‘girls’”; and to which Mr. Caggiano commented, “Love it! About time people stood up to this insanity[,]” the undersigned cannot find that these reposts, or Mr. Caggiano’s comments, are related to, or in retaliation to, his email interaction with J.N.S. concerning the use of pronouns, or his subsequent counselling on the subject. Mr. Caggiano testified of his concern about men using a women’s restroom which, while counter to the policy of the Duval County Public Schools, does not on its face appear to be the type of bullying, harassing, or retaliating prohibited in applicable laws, rules, and policies. Ultimate Findings of Fact Mr. Caggiano created seven posts, reposts, and comments to posts on his personal Facebook account, which are more fully described in paragraph 29 above. Mr. Caggiano contends that he never intended to share these posts, reposts, and comments publicly, and more specifically, to the SHS community. Mr. Caggiano contends that his Facebook account was hacked, which caused all of his Facebook activity to become public. The undersigned finds that Mr. Caggiano’s explanation is not credible, as he testified that he had several SHS teachers as “friends,” and as he did not check his Facebook settings for approximately 10 years, before the Duval County Public Schools, and the SHS community, became aware of the seven posts, reposts, and comments. The undersigned finds that Mr. Caggiano posted, reposted, and commented on Facebook on his personal account, and shared them in a manner that did not ensure that they remain private. Ultimately, Mr. Caggiano’s Facebook posts, reposts, and comments described in paragraph 29 made their way into the public sphere, and students, parents, Duval County Public Schools personnel, and the media viewed and became aware of them. The undersigned finds that two of the alleged posts, reposts, and comments—entitled “My son is taking part in an experiment,” and “MAN AND WOMAN”—warrant further findings that include violations of statutes, rules, and policies enunciated in the Amended Step III Progressive Discipline correspondence. The undersigned does not make such findings with respect to the remaining five posts, reposts, and comments contained in the Amended Step III Progressive discipline correspondence. Accordingly, the following ultimate findings of fact below apply only to the two posts previously mentioned. The two posts at issue concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped. Mr. Caggiano candidly admitted that the post concerning women was offensive. The undersigned finds that these particular posts violate some of the governing laws, rules, and policies alleged in the Amended Step III Progressive Discipline correspondence. Mr. Caggiano violated rule 6A-10.081(1)(b), because the School Board established, by a preponderance of the evidence, that he failed to exercise best professional judgment and integrity. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b). Mr. Caggiano violated rule 6A-10.081(1)(c), because the School Board established, by a preponderance of the evidence, that he failed to maintain the respect and confidence of his colleagues, students, and parents, and failed to sustain the highest degree of ethical conduct. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(a)1., because the School Board established, by a preponderance of the evidence, that he failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students’ mental and/or physical health and/or safety. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rules 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(a)5., because the School Board established, by a preponderance of the evidence, that he intentionally exposed students to unnecessary embarrassment or disparagement. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(b)1., because the School Board established, by a preponderance of the evidence, that he failed to take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which he is affiliated. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-5.056(1), which concerns “immorality,” because the School Board established, by a preponderance of the evidence, that his actions constituted immorality, which is “conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.” Mr. Caggiano violated Duval County School Board Policy 10.10(IV)(A), because the School Board established, by a preponderance of the evidence, that he engaged in conduct that denigrates or shows hostility or aversion toward an individual because of his/her actual or perceived identity with regard to gender. The undersigned finds that the School Board did not establish, bya preponderance of the evidence, that Mr. Caggiano violated section 1006.147(2), which prohibits bullying and harassment. The undersigned finds that the School Board did not establish, by a preponderance of the evidence, that Mr. Caggiano violated rule 6A-10.081(2)(a)6. (“Shall not intentionally violate or deny a student’s legal rights.”), or rule 6A-10.081(2)(c)1. (“Shall maintain honestly in all professional dealings.”). The undersigned finds that the School Board did not establish other alleged violations of Duval County School Board Policy, including bullying or retaliation. The School Board established, with respect to the two aforementioned Facebook posts, that Mr. Caggiano’s conduct constituted “potential harm to the physical and mental wellbeing of a student, or students[,]” and “behavior that impairs the employee’s effectiveness in performing her/his duties, professionalism, and confidence in the eyes of the students and parents/guardians[,]” and thus, under article V, section C, subsections 9 and 10 of the CBA, it was not required to follow the steps of progressive discipline, and had just cause to reprimand (Step II) and suspend without pay (Step III) Mr. Caggiano, and require him to complete a course in Culture Diversity. However, because the undersigned finds that the School Board did not establish that the remaining Facebook posts violated governing laws, statutes, rules or polices, and because the undersigned further finds that the School Board did not establish that the posts constituted bullying or retaliation, the undersigned finds that a reduction in the proposed discipline is warranted.
Conclusions For Petitioner: Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street, Jacksonville, Florida 32202 For Respondent: Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the School Board of Duval County enter a final order that: (1) finds that Mr. Caggiano violated rule 6A- 5.056(1) and (2)(b); rule 6A-10.081(1)(b), (c), (2)(a)1., (2)(a)5., and (2)(b)1.; and Duval County School Board Policy 10.10(IV)(A) for two public Facebook posts or reposts associated with his Facebook account; (2) finds that Mr. Caggiano did not violate section 1006.147(2), rules 6A-10.081(2)(a)6. or 6A- 10.081(2)(c)1., or any remaining portions of Duval County School Board Policy 10.10(IV); (3) issues a written reprimand; (4) suspends Mr. Caggiano, without pay, for three days; and (5) requires Mr. Caggiano to complete a course in Culture Diversity. DONE AND ENTERED this 15th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2021. Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street Jacksonville, Florida 32202 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Diana Greene, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8152 Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
