The Issue Whether the School Board lacked the delegated legislative authority to promulgate School Board Policy 2.57. Whether the challenged portions of School Board Policy 2.57 violate certain provisions of the charter school statute, section 1002.33, Florida Statutes, and State Board Rules, as outlined in Petitioner's Amended Rule Challenge Petitions. Whether the Innovative Rubric Policy 2.57 should be invalidated for enlarging, modifying, and/or contravening the charter statute and also the adopted State Board Education rule(s) and form(s). Whether the budget worksheet referenced in School Board Policy 2.57 is an unadopted rule because it was not attached or incorporated into School Board Policy 2.57 and/or was never specifically adopted by rule. Whether certain provisions of School Board Policy 2.57 violate section 1002.33(6)(h) as outlined in Petitioner's Amended Rule Challenge and Charter Petitions. Whether the prevailing party is entitled to attorneys' fees and costs pursuant to section 1002.33(6)(h) and/or section 120.595, Florida Statutes.
Findings Of Fact Renaissance is a not-for-profit Florida corporation. Renaissance currently operates six charter schools in the School District of Palm Beach County ("School District") pursuant to charters issued by the School Board: (1) Renaissance Charter School at Central Palm; (2) Renaissance Charter School at Cypress; (3) Renaissance Charter School at Palms West; (4) Renaissance Charter School at Summit; (5) Renaissance Charter School at Wellington; and (6) Renaissance Charter School at West Palm Beach. The School Board is the "sponsor" of the six schools operated by Renaissance in the School District for purposes of section 1002.33. The six schools operated by Renaissance are public schools, by virtue of their status as charter schools, under section 1002.33(1). Charter Schools USA serves as the education services provider or management company for all six of Renaissance's schools in the School District. On April 1, 2015, the School Board held a public workshop on the subject of charter schools, including proposed revisions to School Board Policy 2.57 ("Policy 2.57") entitled "Charter Schools." After the workshop, the School Board reviewed proposed revisions to the rule, Policy 2.57, at a noticed public meeting on April 22, 2015, and approved development of the policy. On May 27, 2015, at a noticed public meeting, the School Board approved adoption of revised Policy 2.57. The May 27, 2015, amendments to Policy 2.57 required, among other things, that charter schools meet a standard beyond the status quo for "innovative learning methods," mandated that every charter contract contain a provision requiring 51 percent of the charter school governing board members to reside within Palm Beach County, and mandated that every charter contract contain a provision precluding new charter schools from being located in the vicinity of a district-operated school that has the same grade levels and programs. The May 27, 2015, amendments to Policy 2.57 also included an attached Innovative Policy Rubric 2.57, which contained the innovative definition and additional standards of innovation which charter school applicants must satisfy. The May 27, 2015, amendments to Policy 2.57 also required a completed budget worksheet in the format prescribed by the School Board from each charter school applicant. The "budget worksheet" referenced in Policy 2.57 is the "Budget Template Tool" developed by the Florida Charter Support Unit. The "budget worksheet" referenced in Policy 2.57 was not specifically identified in Policy 2.57 or attached thereto when it was adopted. The School District requires use of the Budget Template Tool in order to provide charter school applicants notice about everything that is required to prepare a budget and to ensure that the budget includes all necessary information. Charter school applicants who do not use the Budget Template Tool often fail to provide all of the information required to be included in the budget. The School District will review an applicant's budget even if it is not submitted using the Budget Template Tool. Failure to use the Budget Template Tool, in and of itself, will not be a factor in the rating of the "Budget" section of an application or the overall recommendation on an application. On August 3, 2015, Renaissance submitted its application for Renaissance Charter High School of Palm Beach to the District's Charter Schools Department. The application for Renaissance Charter High School of Palm Beach is the only charter application Renaissance has filed in the School District since the revised Policy 2.57 was adopted on May 27, 2015. On or around August 18, 2015, Renaissance requested that the Florida Department of Education ("FDOE") mediate its dispute over the amendments to Policy 2.57. The School Board declined FDOE's request to mediate the dispute. On September 8, 2015, Commissioner of Education Pam Stewart issued a letter to both Renaissance and the School Board confirming that the dispute could not be settled through mediation and providing Renaissance with permission to bring its dispute to DOAH. The District Superintendent recommended that the application for Renaissance Charter High School of Palm Beach be denied and placed it on the consent agenda for the School Board's November 4, 2015, public meeting, with one of the reasons being that the application "failed to meet indicators of School Board Policy 2.57 innovative rubric." At the November 4, 2015, meeting, after deliberation, the School Board voted to deny the application. In its letter dated November 13, 2015, denying the charter application of the proposed Renaissance Charter High School of Palm Beach, the School Board relied, in part, on Policy 2.57 as grounds for denial. On September 7, 2016, Petitioner filed a consolidated challenge that was amended on December 20, 2016. Petitioner is challenging the School Board's adoption and amendments of May 27, 2015, to Policy 2.57 in the Rule Challenge and asserting a violation of the flexibility granted to charter schools for the amended provisions in the Charter Petition.
The Issue The issue is whether the School Board has the authority to include a provision in a charter that limits a charter school's annual capacity to the number of applications received as of a date certain (March 1) and whether that proposed enrollment cap is legal under Florida law.
Findings Of Fact RCA is a Florida not-for-profit corporation organized for the purpose of governing and operating charter schools. The School Board is a public body corporate, organized and existing under the Florida Constitution and Florida Statutes to govern the provision of public education to students in Leon County. On August 1, 2011, RCA submitted an application to replicate a high-performing charter school to the School Board, requesting approval of a start-up or new charter school in Leon County based upon a high-performing charter school already in existence. On September 20, 2011, School Board staff sent written correspondence to the charter school informing them of several issues with its application, and that approval of their application would be contingent upon the fulfillment of stipulations set forth in the correspondence. In paragraph 11 of the correspondence, the School Board informed the charter school that it would be required to "provide documentation to Leon County Schools by March 1, 2012, regarding the number of students who have completed official applications at the school, and this number will be utilized to set enrollment for the 2012-2013 school year." RCS responded to the September 11 letter through email on September 23, 2011, stating that most of the issues outlined therein would be worked out during contract negotiations. School Board staff responded by reiterating that, for those items to be handled through the charter, the application would not be approved "as is." The charter application was considered at its September 27, 2011, regular board meeting, and was unanimously approved, "contingent upon amendments to the application and compliance with deadlines as outlined in the [September 20] letter to [RCA]. RCS believed that, under the charter school statutes set out at sections 1002.33 and 1002.3311, Florida Statutes, and related regulations, the School Board was not legally empowered to conditionally approve a high-performing charter application, but instead could only legally approve or deny the application under limited circumstances. RCS communicated this position to the School Board during the charter negotiation process at the parties' meeting to negotiate the charter in January 2012. In late November 2011, the parties began negotiating the terms of the charter and were ultimately able to reach agreement on all issues except the March 1 enrollment cap issue that is the subject of this proceeding. On December 19, 2011, the School Board received a response from RCS to the correspondence of September 20 which stated "[t]he school's board will either have documentation that 862 students have enrolled in the school and in Genesis by August 1, 2012, or will provide documentation of available funding and an approved budget that will fully support the program described in the school's application at the number of students enrolled in the school and in Genesis by August 1, 2012. The school will provide documentation to Leon County Schools by March 1, 2012, regarding the number of students who have completed official applications to the school, and this number will be utilized to set enrollment for the 2012-2013 school year." However, at no time did RCS agree to cap the enrollment for the proposed school as of the number of applications received by March 1 of any given year. In January 2012, representatives for the parties met to work through specific terms in the proposed charter. The parties were unable to reach agreement on the March 1 enrollment deadline language. The language in the proposed charter relating to the disputed issue states in pertinent part, "[t]otal annual enrollment for each year shall be determined by the total number of applications received by March 1 of each year." RCS submitted a request for mediation in accordance with section 1002.33(6)(h). The parties participated in two days of mediation, assisted by Thomas Bateman, Supreme Court Certified Circuit Court Mediator, and were able to resolve all outstanding issues except for the issue relating to the March 1 enrollment deadline. Mr. Bateman submitted a mediation report to the Florida Department of Education declaring impasse as to this one issue. On March 12, 2012, RCS filed a Notice/Request for Initiation of Proceedings with the Division of Administrative Hearings (DOAH). RCS has broken ground on, and is currently in the process of constructing, a multi-million-dollar school facility in Leon County to house the school. Construction is currently scheduled to be completed as of late summer 2012. RCS operates a number of other charter schools throughout the state and no other school district in which it owns and operates charter schools is enrollment limited to a March 1 deadline. The School Board has granted charters to a number of other charter schools in Leon County. Currently, there are five charter schools operating in Leon County. All current charters contain the enrollment deadline provision at issue in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Leon County School Board issue a final order finding that the School Board's proposed contractual provision proposing a March 1 enrollment deadline does not violate the charter school law and does not constitute an unadopted rule. DONE AND ENTERED this 1st day of June, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2012.
The Issue Whether Petitioner owes sales and use tax (plus penalties and interest) to the Department of Revenue (Department), as alleged in the Department's December 22, 1999, Notice of Decision.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the numerous stipulations set forth in the parties' Joint Stipulation of Facts and Second Joint Stipulation of Facts: 23/ Mr. Wheeler is a very successful entrepreneur, who has numerous investments and businesses. His interest in Petitioner represents only a small fraction of his wealth, and, consequently, he pays little or no attention to its business operations. He has let Captain Ernest exercise day-to-day control over these operations. No one other than Captain Ernest has been delegated such authority. When the "Destiny" was purchased by Petitioner, Mr. Wheeler intended for it to be used, for a time, as a charter boat (on a bare boat basis) and then sold, hopefully for a profit. From the time that Petitioner purchased the "Destiny" until the end of the Audit Period, Petitioner was not "involved in any business other than chartering the 'Destiny.'" Captain Ernest was the one who "picked [the "Destiny"] out." He did so pursuant to Mr. Wheeler's instructions that he "make sure" to select a "good charter platform." Aside from giving Captain Ernest these instructions, Mr. Wheeler did not participate in the selection process. The "Destiny" had a "perfect" configuration for chartering. In fact, it was "originally designed as a charter boat." It had last been used for chartering approximately five years before it was purchased by Petitioner. Rob Maas (the "Mr. Maas" referred to in the parties' Stipulation of Fact 26) is the attorney who represented Petitioner at the time the "Destiny" was purchased. At the request of Mr. Wheeler, who was "interested in satisfying all conditions for the Florida use tax exemption," Mr. Maas advised Mr. Wheeler and Captain Ernest as to "what was necessary to maintain the exemption." He told them that "bare boat charter forms" needed to be used when the vessel was chartered and that "any time the boat ever moved . . . [it had to be for] a business reason." After being given such advice, Mr. Wheeler specifically instructed Captain Ernest to use the "Destiny" exclusively for bare boat chartering and no other purpose, instructions that Captain Ernest followed. Captain Ernest accepted delivery of the "Destiny" on behalf of Petitioner in the Bahamas, 1/ notwithstanding that the purchase agreement between Petitioner and the seller indicated that delivery of the vessel was to be made at Pier 66 in Fort Lauderdale, Florida. Petitioner did not pay any sales tax on its purchase of the boat. Mr. Wheeler was not present at the time delivery of the vessel was accepted. After accepting delivery, Captain Ernest brought the boat to Fort Lauderdale. He did so because Fort Lauderdale was "the easiest place to get repairs done," a "good place to pick up crew . . . and finding things that you need for boats," and "the place you want to be" to charter a boat; however, he "probably [would] not" have entered Florida waters if had known that doing so would subject Petitioner to use tax liability. Upon arriving in Fort Lauderdale, Captain Ernest took the "Destiny" directly to Bradford Marine Shipyard (Bradford Marine), a Fort Lauderdale repair facility, where it was "outfitted . . . specifically for charter." On those occasions that Mr. Wheeler was on the "Destiny" during the Audit Period, he was aboard in the capacity of a paying charterer pursuant to a bare boat charter agreement that he and Petitioner had entered into on July 21, 1995. This bare boat charter agreement provided that Petitioner (as the "Owner") would make the "Destiny" available to Mr. Wheeler (as the "Charterer") "for charter on a 'stand-by' basis" and further provided, in pertinent part, as follows: Vessel Availability. Charterer understands the Vessel is scheduled to undergo significant repairs and improvements during 1995 and will not be available when such work is scheduled. Charterer further understands and agrees its charter is on a non-exclusive basis and Owner intends to charter the Vessel through the use of a charter broker to other parties. In the event of a scheduling conflict between Charterer and another charterer, Charterer agrees Owner may "bump" Charterer from using the Vessel during the conflicting period. Charter Broker. Owner and Charterer acknowledge that this is a direct charter without a charter broker. Accordingly, the charter rate is a discounted rate. Term, Hire, & Payment. Subject to the Vessel's availability, Owner agrees to let, and Charterer to hire, the Vessel on such days and for such term as Owner and Charter[er] agree at the rate of $3,000.00 per day, plus state sales tax, if applicable. There will be an accounting at the end of each calendar year to determine Charterer's usage during the preceding year. Due to the Vessel's repair schedule in 1995, the first accounting shall occur at the end of 1996 for Charterer's usage from the date of this Agreement. Charterer shall pay Owner the charter hire determined by the accounting by January 31st of next year. In addition to the charter hire, Charterer shall be responsible for all remaining expenses during charter, including but not limited to food, beverage, fuel, dockage, and accommodations. . . . 5. Control. The Vessel is chartered on a demise basis. Owner hereby transfers to Charterer full authority regarding operation and management of the Vessel for the charter terms. Charterer is solely responsible for retaining a master and crew and it is agreed that said Captain and/or crew are agents and employees of Charterer and not Owner. . . . On July 21, 1995, Mr. Wheeler and Petitioner also entered into a separate agreement for the services of the "Destiny's" captain and crew. This agreement between Mr. Wheeler (as "Charterer") and Petitioner (as "Contractor") for use of the "Destiny's" captain and crew provided, in pertinent part, as follows: Term, Hire & Payment. Charterer hereby retains Contractor to provide crew services to the Vessel during the charter period at the rate of $500.00 per day. In addition, Charterer shall provide the master and crew with food and quarters aboard the Vessel while retained. There will be an accounting at the end of each calendar year to determine Charterer's usage during the preceding year. Due to the Vessel's repair schedule in 1995, the first accounting shall occur at the end of 1996 for Charterer's usage from the date of this Agreement. Charterer shall pay Owner the charter hire determined by the accounting by January 31st of the next year. Provisions. Charterer, before any charter use, shall advance an expense deposit for running expenses. The master shall use these funds to pay for food, liquor, laundry, fuel and lubricants, harbor fees, communication expenses, and any other required supplies or services. If the deposit is insufficient to cover all charges, Charterer shall advance further funds, as needed, during the charter. Upon conclusion of a charter, the master shall provide an accounting to the Charterer of sums received and disbursed. Crew Services. Contractor, on those days Charterer is to use the Vessel, shall provide a full-time, qualified captain and crew. Each crew member shall hold any required license and shall be properly uniformed. . . . Navigation. The master shall act at the Charterer's direction; provided, however, that the master shall not have to carry out any order that jeopardizes the safety of the Vessel or those on board. Relationship. Contractor is retained by Charterer only for the purposes and to the extent set forth in this Agreement, and Contractor's relationship to Charterer shall be that of an independent contractor. Neither the execution or performance of this Agreement shall render the parties partners or co-venturers for any purposes. . . . Mr. Wheeler chartered the "Destiny" pursuant to the July 21, 1995, bare boat charter agreement (and utilized the services of the "Destiny's captain and crew pursuant to the separate July 21, 1995, employment agreement) on the following dates during the Audit Period: September 12, 1995, through September 15, 1995; December 21, 1995, through January 4, 1996; March 4, 1996, through March 7, 1996; July 21, 1996, through July 28, 1996; and August 19, 1996, through August 25, 1996. 2/ These charters all occurred outside of Florida. Mr. Wheeler was billed (in accordance with his agreements with Petitioner) for his use of the "Destiny," for the services performed for him by the "Destiny's" captain and crew, and for all "running expenses" incurred during his charters, and he paid Petitioner the full amount he was billed. Mr. Wheeler was not the only one to charter the "Destiny" during the Audit Period. There were seven other charters: by Ryder Systems, Inc., of Miami, Florida, from 2:00 p.m. to 7:00 p.m. on January 22, 1996; by Barry Zekelman, from noon on April 6, 1996, to noon on April 13, 1996; by William Boardman, from noon on May 20, 1996, to noon on May 31, 1996; by David Cole, from noon on June 29, 1996, to noon on July 7, 1996; by the Robert E. Morris Company, from 4:00 p.m. on July 9, 1996, to 4:00 p.m. on July 12, 1996; by Thomas Russell, from 9:00 a.m. to 8:00 p.m. on July 30, 1996; and by Richard Dvorak, from 3:00 p.m. on August 4, 1996, to 3:00 p.m. on August 18, 1996. Each of these charters, like Mr. Wheeler's charters of the "Destiny," occurred pursuant to a bare boat charter agreement (on a form containing provisions standard in the bare boat chartering industry, including, among others, one obligating the charterer to pay all "running expenses" during the charter), with the captain and crew being provided in accordance with the terms of a separate employment agreement entered into by the charterer. (These separate employment agreements, unlike Mr. Wheeler's agreement for the services of the "Destiny's" captain and crew, were with Captain Ernest, not Petitioner.) The arrangements made for the payment of the "Destiny's" captain and crew for services performed by them while the "Destiny" was under charter during the Audit Period were "customary in the industry." Only one charter during the Audit Period, the Ryder Systems, Inc., of Miami, Florida, charter, took place in Florida. Florida is not considered a preferred destination in the bare boat chartering industry. A considerable amount of time was spent during the Audit Period marketing and promoting the "Destiny" to rebuild the reputation it had previously enjoyed as a charter boat. 3/ It was not until 1997 that Petitioner's bare boat chartering business "really took off as far as . . . charter numbers went." Although the "Destiny" was under charter only for a small portion of the Audit Period, at no time during the remainder of the Audit Period (when it was not under charter) was it used for any purpose unrelated to Petitioner's bare boat chartering business. The "Destiny" was used to house 4/ and feed Captain Ernest and the other members of the crew 5/ at all times during the Audit Period, whether the "Destiny" was under charter or not. Such use of the "Destiny" was in furtherance of Petitioner's bare boat chartering operations. Having a full-time captain and crew aboard a "mega" yacht available for bare boat charter, even when the yacht is not under charter, is essential to conduct successful chartering operations. The captain and crew must be available, on the vessel, to host the charter brokers and prospective charterers who come aboard between charters (sometimes with little or no advance notice) and to perform those everyday tasks necessary to maintain the vessel. To attract and keep qualified onboard personnel, it is necessary to provide them with, as part of their compensation package, free room and board on the "mega" yacht. Doing so is the standard practice in the bare boat chartering industry. When it was not under charter during the Audit Period, the "Destiny" was heavily promoted and marketed in an attempt to attract bare boat charter business. "[A] lot of promotion" and marketing was needed because the "Destiny" was reentering the charter market after a five year hiatus and Captain Ernest "was new to the charter industry." The promotional and marketing efforts included entering the "Destiny" in boat shows, hosting luncheons for charter brokers aboard the "Destiny," taking charter brokers and their guests on "fam" trips on the "Destiny," and showing the "Destiny" to prospective clients. Captain Ernest and the crew always tried to make the "Destiny" look its best when charter brokers and prospective charterers came aboard. Flowers were purchased and used to enhance the appearance of the "Destiny." When charter brokers came aboard the "Destiny," they were wined and dined and otherwise shown the type of service Captain Ernest and the crew were capable of delivering to charterers. (The reputation of the captain and crew for quality service determines "what charters [a "mega" yacht bare boat chartering business is] going to get and how [the] business is going to go.") It was particularly important "in the early days" for Captain Ernest and his crew to "make an impression on the brokers" because they were not known in the broker community. During the Audit Period, when not under charter, the "Destiny" was stocked with supplies and provisions purchased for use in connection with Petitioner's bare boat chartering operations. These supplies and provisions included fuel and various food and beverage items. Some of the food and beverage items were for use during promotional and marketing activities aboard the vessel. The chef (who specialized in European-style dishes) would often serve rack of lamb or roast duck (as a main course) to visiting charter brokers. There were also food and beverage items on the vessel for the members of the crew. In addition, items that could not readily be obtained in the Caribbean islands (at a reasonably competitive price) were purchased before the "Destiny" departed for the Caribbean. These items were stored on the vessel so that they would be available for any charter that Captain Ernest might be able to obtain while the vessel was located in Caribbean. (Charterers paid Petitioner for the items they and their guests consumed during the charter.) It was "common" for Petitioner to buy large quantities of meats and seafood and store these items for later use in the seven freezers on the "Destiny." For example, on one occasion, Petitioner bought 71.49 pounds of leg of lamb (from a company that would "cryovac" the meat so that it would keep for a very long time). There were many occasions during the Audit Period, when the "Destiny" was not under charter, that it was moved from one location to another. All such movements, however, were in furtherance of Petitioner's bare boat chartering operations. For example, it was moved from time to time to attend boat shows and to pick up charter brokers and prospective charterers who wanted to look at the vessel. On other occasions, it was taken to repair facilities and other places ("mainly . . . in Florida"), such as Pier 66, to have repair and maintenance work done. It was also taken out on "quite a few" sea trials. In addition, there were times it was moved to avoid the problems that can arise if a boat just "sit[s] at the dock." "It's very important for a boat to stay moving and stay running" in order for it to remain in good working order. Another reason it was moved was to be in "the prime areas for [charter] pick-ups." 6/ In summary, during the Audit Period, the "Destiny" was either chartered on a bare boat basis (with captain and crew furnished under a separate employment agreement) or used in a manner reasonably designed to further Petitioner's bare boat chartering business, and for no other purpose. Furthermore, every tax-free Florida purchase of tangible personal property made by Petitioner under its Florida sales tax exemption certificate from the time of its acquisition of the "Destiny" until the end of the Audit Period (including the purchase of Yamaha WaveRunners on August 14, 1995, for $12,770.00 7/) was made in furtherance of Petitioner's bare boat chartering business. 8/ By letter dated October 11, 1996, the Department informed Petitioner that it was going to audit Petitioner's "books and records" for the Audit Period. Petitioner was selected for audit because it had reported only a relatively small amount of taxable charter revenue on the Florida sales and use tax returns it filed during the Audit Period. The Department began its review of Petitioner's "books and records" on January 23, 1997, at Mr. Maas' office. The Department's "audit findings" were that the "Destiny" "was purchased for [a] dual purpose, for leasing and to be used by the shareholder" and therefore "the vessel and other purchases [made by Petitioner during the Audit Period under its sales tax exemption certificate] are taxable at the cost price." Based upon these audit findings, the Department issued a Notice of Intent to Make Audit Changes, in which it advised Petitioner that Petitioner owed $250,744.18 in sales and use taxes, $125,325.07 in penalties, and $56,948.55 in interest through July 18, 1997, for a total of $433,017.80, "plus additional interest of $82.44 per day . . . from 07/18/97 through the date [of] payment." By letter dated April 22, 1998, Petitioner protested the Department's proposed assessment. On December 22, 1999, the Department issued its Notice of Decision sustaining the proposed assessment and announcing that, as of December 22, 1999, Petitioner owed the Department $506,142.08, with "interest continu[ing] to accrue at $82.44 per day from 12/23/99." Petitioner subsequently filed a Petition for Chapter 120 Administrative Hearing on the Department's proposed action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that its assessment against Petitioner is incorrect in its entirety. DONE AND ENTERED this 24th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2002.
The Issue Whether Broward County School Board has good cause to non- renew Automotive Technical Charter High School of South Florida, Inc.'s Charter School Agreement.
Findings Of Fact On June 19, 2001, the School Board approved the initial Charter School Agreement that allowed Parkway Academy to open. The original contract was effective for a ten-year period, which ended on June 30, 2011. Parkway Academy was assigned school location number 5181. Parkway Academy serves students from both Broward and Miami-Dade counties. Parkway Academy is located on Broward College Campus and the 2011-2012 school year enrollment was approximately 517 students. Eighty-five students were in Parkway Academy's most recent graduating class and 84 were accepted into college. Charter schools are part of the public school system and are required to follow the same precepts as a public school. During the 2010-2011 school year, the school district conducted a program review of Parkway Academy's Charter to determine if the charter should be renewed. After the first program review conducted during the 2010-2011 school year, the School Board determined that Parkway Academy had academic performance and programmatic deficiencies. As a result of the deficiencies, the School Board only granted Parkway Academy a one-year renewal Charter. Parkway Academy's Charter was renewed for the 2011-2012 school year, permitting the school to operate through June 30, 2012. The Charter Agreement mandated that Parkway Academy "provide educational services in accordance with the terms of [the] charter school agreement." The Charter School Agreement provided the following contractual performance obligations in Section 2.D: "Any non- renewal cancellation or termination of the Charter shall be subject to Section 1002.33(8), Florida Statutes, and the terms of this Charter." Section 2.D.1. of the Charter prohibited Parkway Academy from being designated a "school in need of improvement" for more than two years and provided the following non-renewal provisions: a failure by the School to participate in the state's education accountability system created in section 1008.31 or failure to meet requirements for student performance stated in this Charter. * * * (f) receipt by the School of a state- designated grade of "F" in any Two (2) of Four(4) years or the School is designated as "a school in need of improvement" for more than Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress(AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform to current state law or rules; Section 2.D.1.a of the Charter delineated what constitutes "good cause" for charter termination or non-renewal and read in pertinent part: "Good cause" for termination or non-renewal shall include, but not be limited to, the following: * * * (2) receipt by the School of a state- designated grade of "F" in any Two (2) of Four (4) years or the School is designated as "a school in need of improvement" for more than "Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress (AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform with the current state or rules. * * * (22) any other good cause shown, which shall include without limitation, any material breach or violation by the School of the standards, requirements or procedures of this Charter such as: * * * (c) the School's failure to fulfill all the requirements for highly qualified instructional personnel as defined by the No Child Left Behind Act (NCLB) * * * (t) a failure by the School to fulfill all of the requirements for highly qualified instructional personnel as defined by NCLB Section 11.D of the Charter provided the requirements for teacher certification and highly qualified teachers and read in pertinent part: All teachers employed by or under contract to the School shall be certified and highly qualified as required by Chapter 1012, Florida Statutes and any other applicable state of federal law. Criteria developed by the School for hiring all other staff (administrative and support staff) shall be in accordance with their educational and/or experiential backgrounds that correspond to the job responsibilities they will be expected to perform. If the School receives Title I funds, it will employ highly qualified staff. In compliance with those requirements, the School's teachers shall be certified and teaching in-field and the School's support staff shall have attained at least Two (2) years of college education or have passed an equivalent exam. The School may employ or contract with skilled selected non-certified personnel to provide instructional services or to assist instructional staff members as education paraprofessionals in the same manner as defined in Chapter 1012 and as provided by State Board of Education rule for charter school Governing Boards; however, in order to comply with NCLB requirements, all teachers in core academic areas must be certified/qualified based on Florida Statutes and highly qualified as required by NCLB. The School agrees to disclose to the parents of its students the qualifications of instructional personnel hired by the School. Parkway Academy's Charter Agreement for the 2011-2012 school year was signed by the parties on or about March 3, 2011, and went into effect July 1, 2011. The School District conducted its next renewal review of Parkway Academy during the last week of October and first week of November of 2011 to determine if the charter school renewal should go beyond the 2011-2012 school year. Diane Rogers ("Rogers"), Personnel Administrator for the Certification Department, audited and reviewed Parkway Academy's instructors and the courses each instructor was teaching. On or about October 26, 2011, Rogers retrieved teacher assignment information from the Data Warehouse1 and reviewed the instruction assignments and qualifications for the 2011-2012 school year to make a determination if each of Parkway Academy's teachers were certified, teaching in field, out of field, highly qualified, or not highly qualified for the teaching assignments he/she had been given. After completing the teacher review audit, Rogers identified the following five faculty members who lacked appropriate teacher certification: John Ahrens ("Ahrens"), Valerie Cedant ("Cedant"), Jerry Goodbolt ("Goodbolt"), Talondra Ingram ("Ingram"), and Uriel Williams ("Williams"). Rogers found Ahrens was teaching auto mechanics and auto tech but did not have the required Broward certificate. Rogers notified Parkway Academy in November 2011 that Ahrens needed a Broward teaching certificate. Rogers also found that Cedant previously had a temporary certificate, which expired June 30, 2011, and Ingram's temporary certificate had also expired before the 2011-2012 school year. Additionally, Goodbolt was working at the school without ever applying for a teaching certificate. While assessing the Parkway Academy, Rogers also discovered Williams had applied for a certificate from the Florida Department of Education ("FDOE"). FDOE determined his status was ineligible for a Florida educator's certificate in any area. Therefore, Rogers properly categorized Williams as not highly qualified to teach his assignments, Physical Education, Personal Fitness and Health Education, for the school because Williams did not have the basic requirement, a Florida educator's certificate. Rogers also identified the following eight teachers who did not have the required highly qualified2 status when she did her review: Floyd Barber ("Barber"), Cedant, Ingram, Gleandeal Johnson ("Johnson"), Lee Kornhauser ("Kornhauser"), Hyaptia Mata ("Mata"), Roxanna Smilovich ("Smilovich"), and Manage Vincent ("Vincent"). Rogers determined that Cedant was not highly qualified in that Cedant was precluded from the status because she did not have a valid educator's certificate and was also teaching improperly out of field without a valid educator's certificate. Rogers determined that Barber was not highly qualified to teach his assignment, Literature and Arts, since his FDOE certification was in Business Education. Therefore, he was improperly teaching out of field at Parkway Academy. Rogers also found in her review that Johnson had a FDOE certificate in Business Education 6 through 12 but she was assigned to teach Journalism, which requires FDOE certification either in English 6 through 12, Journalism, or English 5 through Therefore, Johnson was not highly qualified to teach Journalism because she was teaching out of field improperly, and she had not met the requirements. Rogers also discovered during her audit that Kornhauser was FDOE certified in Math 5 through 9, which allows him to teach middle school grade level math but he was assigned to teach Business Math and Math for College Readiness, which requires a Mathematics 6 through 12 certification. Therefore, Rogers determined that Kornhauser was not highly qualified to teach his assigned courses and was improperly teaching out of field. Rogers' review of Mata found that she was FDOE certified in Biology 6 through 12, but she was assigned to teach Earth Space Science, Chemistry, and Physics, all three of which required certifications other than Biology. Rogers determined Mata was not highly qualified to teach the three courses and was improperly teaching out of field. Upon review, Rogers found that Smilovich's FDOE certification was in Biology 6 through 12, but she was assigned to teach Earth Space Science, which requires certification in Chemistry, Physics, Earth Space Science, or General Science 5 through 9. Rogers' audit also determined that Smilovich was not highly qualified for her assigned class, and she was improperly teaching Earth Space Science out of field. Rogers' review also found Vincent was FDOE certified in Biology 6 through 12, but Vincent was teaching Chemistry, which requires a certification in Chemistry 6 through 12. Rogers determined that Vincent was not highly qualified for the teaching assignment and was improperly teaching Chemistry out of field. Parkway Academy employed and had the following instructors teaching out of field for the 2011-2012 school year without the proper credential for the core course of instruction they were assigned: Cedant, Ingram, Johnson, Kornhauser, Mata, Smilovich, Vincent, and Williams. Seventeen out of the 52 classes at Parkway Academy were being taught out of field. After discovering the teachers who were teaching out of their fields during her audit, Rogers also checked to determine if Parkway Academy had complied with the requirement to notify the parents that their children had teachers providing instruction out of field. Rogers found that Parkway Academy had only notified parents partially regarding Vincent and Mata. She concluded that the newsletter notification was incomplete for Mata because it listed only one of her areas being out of field, and it failed to notify the parents about the other instructors teaching out of field. Rogers concluded her audit by determining that Parkway Academy did not comply with the Charter School Agreement and laws because the school failed to employ teachers who all had valid teaching certificates, failed to have all of its teachers teaching in the appropriate field, failed to correctly designate teachers who were highly qualified to teach core curriculum subject areas, and failed to correctly notify parents that their children were being taught by teachers who were out of field. Rogers emailed Parkway Academy on or about December 1, 2011, and requested updated information on the status of each deficiency regarding the instructors that lacked the proper certification and/or qualifications that she had discovered during her review. Parkway Academy provided Rogers an email update the next day on each teacher Rogers had listed in the email of December 1, 2011, that was not in compliance, but Parkway Academy never provided Rogers any replacement teachers' names or certifications to verify compliance as she requested. During December 2011, Parkway Academy took the following measures to correct some of the teacher certification and qualification deficiencies. Parkway Academy replaced Cedant, Ingram, and Smilovich with certified, highly qualified teachers. Also, Parkway Academy changed Barber, Johnson, and Kornhauser's core course codes to courses they were certified to teach. Parkway also obtained out of field agreements with Mata and Vincent to teach courses they were not certified to teach while each worked on certification in the area they were teaching. The School Board's Testing and Assessment Department also reviewed Parkway Academy's Charter. Among other things, the Department looked at Parkway Academy's Adequate Yearly Progress ("AYP"), the measure of school performance used to comply with the No Child Left Behind Act of 2001 ("NCLB"). The Testing and Assessment Department found that Parkway Academy did not meet AYP for the latest school year 2010-2011, which was reported after the signing of the renewal Charter School Agreement in March 2011. Additionally, the Department determined that the failure to meet the requirements for student performance for the 2010-2011 school year meant Parkway Academy had failed to make AYP for the following eight consecutive years: 2003-2004, 2004- 2005, 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010, and 2010-2011. Parkway Academy's failure to meet the AYP for eight consecutive years earned the school the status of a "school in need of improvement" for more than two years. Parkway Academy failed to operate in compliance with the Charter School Agreement. The Certification Department's audit review report which showed a failure to use instructors that had the proper certification and/or qualifications for a substantial part of the year, combined with the Testing and Assessment Department's review results that concluded the Respondent was a "school in need of improvement" for more than two years due to failing to make AYP for eight consecutive years, caused a recommendation to be made to the School Board to non-renew Parkway Academy's Charter. On March 20, 2012, the School Board voted not to renew Parkway Academy's Charter. A Proposed Non-Renewal of its Charter notice was sent to Parkway Academy. On April 4, 2012, the School Board received Parkway's letter dated April 2, 2012, requesting a hearing upon the proposed Charter non-renewal, which was forwarded to the DOAH. The day of the formal hearing, Ahrens obtained a vocational certificate, which qualified him to teach auto mechanics and auto tech. Kornhauser neither had applied for nor obtained mathematics certification for grades 6 though 12.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board, enter a final order declining to renew the Charter School Agreement for Automotive Technical Charter High School of South Florida Inc., upon both the statutory and contractual grounds of (1) failure to meet the requirements for student performance stated in Parkway Academy's Charter including the school's status as a "school in need of improvement" for more than two years; (2) failure to use instructors having proper certification and/or qualifications; (3) failure to have teachers teaching in their fields; and (4) failure for Parkway Academy to disclose the out of field qualifications to the students' parents. DONE AND ENTERED this 10th day of August, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2012.
The Issue The issue is whether Respondent's teaching certificate should be disciplined because of Respondent's misconduct.
Findings Of Fact Background and parties Mr. Negedly holds Florida Educator's Certificate 836720, in English, which was valid through June 30, 2008. At all times pertinent, he was employed by the Volusia County School District as a language arts teacher at Heritage Middle School (Heritage). The Department of Education, which was headed by Petitioner at all times material to this case, is the state agency charged with investigating and prosecuting complaints against teachers holding Florida Educator's Certificates. The Education Practices Commission is charged with, among other things, imposing discipline on teachers. The Becker incidents During the 2004-2005 school year, Jami Lynn Becker was a consultation teacher at Heritage. A consultation teacher advises and otherwise aids teachers who have exceptional student education (ESE) pupils in their classes. She ensured that ESE students were provided the accommodations to which they were entitled. Mr. Negedly taught sixth-grade language arts at Heritage. There were three ESE students in his class. Ms. Becker's duties included visiting his class in order to provide services to those three students. On September 16, 2004, immediately before the commencement of classroom activities, Ms. Becker went to Mr. Negedly's room to inquire if he needed any help. During the conversation, Mr. Negedly mentioned that he and his wife had by happenstance seen Ms. Becker driving into New Smyrna Beach, Florida. Ms. Becker related that she was there to receive counseling regarding a recent divorce. Mr. Negedly moved the subject of the conversation to his own marriage and related that he was having problems and was sexually frustrated. He stated that he was having impure thoughts. He suggested that he was willing to engage in a physical relationship with Ms. Becker if she was willing. Ms. Becker was completely shocked by this conversation. Ms. Becker knew Mr. Negedly's wife, Joely Negedly, because she taught at Heritage also, and Ms. Becker suggested that he should direct his intimate conversations to his wife, not her. Mr. Negedly then revealed that he had the same feelings with another teacher, Jaqueline Brame, in the previous year. At that point in the conversation, the school bell rang, students entered the classroom, and Ms. Becker told Mr. Negedly that she would pray for him and then departed for her office. She also made it clear to him that she hoped that this type of conversation would not be repeated. However, that was not to be the case. About 45 minutes later, Mr. Negedly provided Ms. Becker with a note saying that he was sorry if what he said was too much, too fast, and that he hoped that he had provided her with some help. During the seventh period, which was Mr. Negedly's planning period, he came to Ms. Becker's office and renewed the conversations about his sexual frustration and stated that he didn't understand why God intended for man to be with one woman for his entire life. He asked Ms. Becker not to tell others about the conversations. On one or more occasions, Mr. Negedly came into Ms. Becker's office at the end of the school day and talked to her for as long as 45 minutes. Both his presence and his conversations during these times made her feel uncomfortable. Ms. Becker is a self-described non-confrontational person and could not bring herself to tell him to leave. These sort of encounters occurred about seven times over several weeks. Ms. Becker felt that the conversations he initiated were inappropriate. His words made her feel uncomfortable, and she felt that it was necessary for her to take evasive action in order to avoid him and therefore avoid repeat occurrences. She also honored his request not to reveal the nature of his conversations. At some point, Ms. Becker approached Ms. Brame, the person Mr. Negedly had identified as a previous target of his affections, and told Ms. Brame of her experiences. Ms. Brame related her experience with Mr. Negedly, and Ms. Becker ascertained that they were very similar. As a result, Ms. Becker resolved to inform higher authority. This plan was shelved, however, by the intervention of Hurricane Jeanne, which resulted in the suspension of school activities. On September 28, 2004, when school resumed, Mr. Negedly came into her office and after about 45 minutes Ms. Becker told him that his conversation was inappropriate. A few days after that, Ms. Becker reported these events to Mrs. Gunderson, who was an assistant principal and supervisor of ESE. All of these encounters occurred on school grounds. However, there was no evidence that any student observed or heard Mr. Negedly's suggestions. Mr. Negedly never touched Ms. Becker, threatened her person, or used sexually explicit language. His actions disturbed her to the extent that her ability to teach was affected. However, her effectiveness as an employee of the district school board was not seriously compromised. The Brame incidents Jacqueline Brame is currently a teacher at River Springs Middle School in the Volusia County School District and was a teacher at Heritage during all times pertinent to this proceeding. Ms. Brame was Mr. Negedly's mentor when he began teaching at Heritage and worked with him on a sixth-grade team of teachers providing education to the same 150 children. By the beginning of the 2003-2004 school year, Ms. Brame, Mr. Negedly, and Joely Negedly had become close friends. They mingled socially and would visit one another in their homes. Ms. Brame confided in Mr. Negedly, and Ms. Brame described their relationship as "best friends." Ms. Brame was having marital problems, and she shared intimate details about this with Mr. Negedly. She valued his advice and respected his opinions about her problems. After the 2003-2004 school year commenced, Mr. Negedly attempted to move the relationship into a romantic one. He told her that he cared for her deeply and that he was in love with her. These comments made Ms. Brame uncomfortable. She reminded Mr. Negedly that he was married, that she, Ms. Brame, was Mrs. Negedly's friend, and that his son was in her class. This conversation occurred in school, during the school day. He told Ms. Brame that he wanted to have a physical relationship with her. This continued even when Ms. Brame was seven months pregnant. After each advance and rebuff, Mr. Negedly would apologize. His pursuit continued for almost a year. On numerous occasions she would tell him that his advances were unwelcome and inappropriate. Ms. Brame, like Ms. Becker, described herself as someone who did not like confrontation, and she did not firmly tell him that his behavior was unacceptable. Once when Ms. Brame had temporarily abandoned her marital home as the result of a domestic dispute, Mr. Negedly invited her to stay at his home. Ms. Negedly was out of the area at this time because of her duties as a consultant for the college boards, but their children were present in the home. Ms. Brame refused. However, she did not take the invitation to be an invitation for sex. She said that had Ms. Negedly not been away during this time, she might have accepted the invitation. Mr. Negedly's pursuit made Ms. Brame uncomfortable and occasionally sick to her stomach. It adversely affected her emotions and affected her teaching. The events happened in school, in the school cafeteria, and after school, but in connection with school activities. As a result of his unwelcome overtures she had to attend counseling. However, her effectiveness as an employee of the district school board was not seriously reduced or compromised. Eventually Ms. Brame restructured their relationship. She transformed it into a professional friendship and maintained this status through the 2003-2004 school year. At no time during these encounters did Mr. Negedly touch Ms. Brame inappropriately or use sexually explicit language. Most if not all of the encounters occurred on school grounds or in connection with school activities. However, there was no evidence that any student observed or heard Mr. Negedly's overtures. Ms. Brame did not tell anyone in authority about Mr. Negedly's behavior. She cared deeply for Mr. Negedly and his family. She believed remaining silent was her Christian duty. She stated during the hearing that she does not believe he should be removed from the teaching profession. Ms. Brame's allegations surfaced during the investigation into Mr. Negedly's conduct that resulted from Ms. Becker's allegations. The Hepsworth incidents Ms. Kuuleialoha Hepsworth was a teacher's assistant at Heritage during the first semester of 2004. She was in charge of the "lunch club." This informal organization provided lunches to teachers who desired to have their lunch prepared by commercial providers. Ms. Hepsworth would collect money from participating teachers, acquire the food at nearby restaurants, and deliver them to those who had placed orders with her. Once when Mr. Negedly handed her money to be used for purchasing lunch, she claimed he inappropriately brushed the bottom of her hand. Mr. Negedly was the sponsor for the school yearbook and in connection with that duty, he was taking pictures of children in a seventh-period classroom Ms. Hepsworth was teaching. Ms. Hepsworth testified that he said that he was intrigued with her and that "he wanted to pursue her." She said she asked him, "What about your wife?" She said he then asked her if "I would do his wife too, because that would be too cool." Ms. Hepsworth claimed that she was "freaked out." She related that this latter incident occurred on the Friday before Mr. Negedly was removed from the school because of the Becker allegations. She was asked on October 28, 2004, to give a statement to an investigator and that is when she revealed her alleged encounters. The alleged behavior of Mr. Negedly as related by Ms. Hepsworth was so dissimilar to the events related by Ms. Becker and Ms. Brame that it is deemed unworthy of belief. Mr. Negedly Mr. Negedly's targets were women who did not like confrontation and who sought unsuccessfully to communicate their discomfort passively. Had they been confrontational with him, or if they had reported his behavior to higher authority immediately, the behavior could have been corrected locally, and the downward spiral of unpleasantness which has resulted, could have been avoided. On the other hand, these two women may have been selected as targets because of Mr. Negedly's perception that they were unlikely to either harshly react to his overtures or immediately report him to those in authority. Mr. Negedly's certificate expired June 30, 2008. He was employed as a teacher from the beginning of the 2000-2001 school year until the latter part of the school year 2005-2006. Mr. Negedly received a certificate of appreciation for his outstanding dedication to education from the assistant principal of Heritage, on May 7, 2002. All of his performance assessments indicated that he met standards, and he had no disciplinary record prior to the discipline at issue in this case. As previously noted, he was given the additional duty of yearbook sponsor at Heritage. He was also made sponsor of the Junior Beta Club. Heritage Principal Dennis Neal wrote a recommendation dated May 7, 2004, when Mr. Negedly applied for a Stetson University Teacher Scholar Grant that related, "Mr. Negedly continues to demonstrate high professional standards and a dedication to his students' success both in and out of the classroom. He is a valuable team player who can be counted on to go above the norm in all his endeavors. I commend Mr. Negedly on taking on the challenge of an advanced degree and professional growth." When Mr. Negedly was teaching English at David Hinson Middle School, he was chosen teacher of the month for October 2005 by students and teachers. Subsequent to the exposure of Mr. Negedly's transgressions, he attended counseling with his wife at Associated Psychiatric Services in New Smyrna Beach, Florida. As late as April 13, 2005, counseling continued. The counseling was ordered and paid for by the Volusia School District. In January 2005, the school board punished Mr. Negedly by suspending him for five days without pay. As a result of Mr. Negedly's lack of judgment, he was taken from his classroom at Heritage and transferred to the district headquarters; his wife had to obtain a transfer to another school; Mrs. Negedly and her child were the subject of incorrect and hurtful conversations by students, faculty, and others; and Mr. Negedly, who sincerely loved teaching, lost his career.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Joan Stewart, Esquire FEA Legal Services 300 East Park Avenue Tallahassee, Florida 32301 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the proposed amendment to Florida Administrative Code Rule 6A-2.0020(4) is an invalid exercise of delegated legislative authority because of conflict with section 1008.34(1)(a), Florida Statutes (2016), or because the rule will be arbitrary and capricious in its application and administration.
Findings Of Fact Petitioner Florida Association of Independent Charter Schools is a Florida non-profit corporation. The association is substantially affected by the proposed amended rule. Petitioner Aspira Raul Arnaldo Martinez Charter School is a charter school in Miami-Dade County and is currently serving 573 students. Its school grades over the past two consecutive years are: “D” for 2014-2015 and “D” for 2015-2016. If the proposed amended rule becomes effective and the school receives a school grade lower than “C” for 2016-2017, the school will not be eligible for the 2017-2018 Capital Outlay Appropriation. The school is substantially affected by the proposed amended rule. Petitioner Miami Community Charter Middle School is a charter middle school in Miami-Dade County currently serving 283 students. It is a Title I school serving 99 percent Free and Reduced Lunch. Its school grades over the past two consecutive years are: “D” for 2014-2015 and “D” for 2015-2016. If the proposed amended rule becomes effective and the school receives a school grade lower than “C” for 2016-2017, the school will not be eligible for the 2017-2018 Capital Outlay Appropriation. The school is substantially affected by the proposed amended rule. Respondent State of Florida Board of Education is “the chief implementing and coordinating body of public education in Florida . . . [with] the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of law conferring duties upon it for the improvement of the state system of K-20 public education . . . .” § 1001.02(1), Fla. Stat. Respondent Florida Department of Education “act[s] as an administrative and supervisory agency under the implementation direction of the State Board of Education.” § 1001.20(1), Fla. Stat. “The Commissioner of Education is the chief educational officer of the state . . . , and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system except for the State University System.” § 1001.10(1), Fla. Stat. Charter school capital outlay funding is the state’s contribution to capital funding for charter schools. A charter school’s governing body may use such funds for the following purposes: purchase of real property, construction of school facilities, purchase or lease of permanent or relocatable school facilities, purchase of vehicles, renovation, repair, maintenance of school facilities, and insurance for school facilities. § 1013.62(3), Fla. Stat. The charter school statute, section 1002.33, Florida Statutes, specifically authorizes the State Board of Education to adopt rules which address charter school eligibility for capital outlay funds. “The Department of Education, after consultation with school districts and charter school directors, shall recommend that the State Board of Education adopt rules to implement specific subsections of this section.” § 1002.33(28), Fla. Stat. One of the specific subsections of section 1002.33 is subsection (19), entitled “CAPITAL OULAY FUNDING.” Subsection (19) provides, in pertinent part: “Charter schools are eligible for capital outlay funds pursuant to s. 1013.62.” Each year, the Commissioner of Education is required to allocate charter school capital outlay funds, if any are appropriated by the Legislature, to eligible charter schools.1/ One of the eligibility criteria, which is at the center of the parties’ dispute, is set forth in section 1013.62(1)(a)3., Florida Statutes: “Have satisfactory student achievement based on state accountability standards applicable to the charter school.” The 2016 Florida Legislature amended section 1013.62, but it did not amend the statute regarding satisfactory student achievement. With regard to satisfactory student achievement, presently effective rule 6A-2.0020 provides: (2) The eligibility requirement for satisfactory student achievement under Section 1013.62, F.S., shall be determined in accordance with the language in the charter contract and the charter school’s current school improvement plan if the school has a current school improvement plan. A charter school receiving an “F” grade designation through the state accountability system, as defined in Section 1008.34, F.S., shall not be eligible for capital outlay funding for the school year immediately following the designation. On February 28, 2017, Respondents published a Notice of Proposed Rule, which proposed to amend rule 6A-2.0020. On March 22, 2017, the State Board of Education approved the proposed amendments to rule 6A-2.0020. As approved, the portion of the proposed rule which addresses satisfactory student achievement provides: (4) Satisfactory student achievement under Section 1013.62(1)(a)3., F.S., shall be determined by the school’s most recent grade designation or school improvement rating from the state accountability system as defined in Sections 1008.34 and 1008.341, F.S. Satisfactory student achievement for a school that does not receive a school grade or a school improvement rating, including a school that has not been in operation for at least one school year, shall be based on the student performance metrics in the charter school’s charter agreement. Allocations shall not be distributed until such time as school grade designations are known. For the 2016-2017 school year, a charter school that receives a grade designation of “F” shall not be eligible for capital outlay funding. Beginning in the 2017-2018 school year, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Beginning in the 2017-2018 school year, a charter school that receives a school improvement rating of “Unsatisfactory” shall not be eligible for capital outlay funding. Proposed amended rule 6A-2.0020(4), if adopted, will provide the standard for what constitutes failure to meet satisfactory student achievement for purposes of receiving capital outlay funding. A school with a grade of “F” or two (2) consecutive grades lower than a “C” will be ineligible for funding. Proposed amended rule 6A-2.0020(4), if adopted, will allow a charter school with a single “D” grade to continue receiving capital outlay funds for the next fiscal year. On April 5, 2017, Respondents published a Notice of Change for a technical change for rule 6A-2.0020, referencing the following rulemaking authority for the rule: sections 1001.02(1), (2)(n); 1002.33(19), (28); 1013.02(2)(a); and 1013.62(5).
Findings Of Fact White Swan is a corporation registered and doing business in the State of Florida. White Swan is engaged in the sale of wholesale food supplies to Florida public entities. A sampling of the Florida public entities White Swan has transacted business with, include: Tampa General Hospital, Charlotte County Sheriff's Department, County Jails in West and Central Tampa, Pasco County Detention Center, Polk County Sheriff's Department and the Duval County School System. White Swan entered a plea of guilty and was convicted on June 10, 1993, of an offense constituting a public entity crime as defined within Section 287.133(1)(g), Florida Statutes. White Swan pled guilty and was convicted in the U.S. District Court for the Southern District of Texas, Houston Division, of a one count information for violation of the Sherman Antitrust Act, 15 U.S.C. S. 1. The count for which White Swan pled guilty and was convicted was brought by information filed April 28, 1993, pursuant to a plea agreement. It charged a conspiracy to rig bids for contracts to supply wholesale grocery products to certain public school districts and other public entities located in southeastern Texas. On June 10, 1993, White Swan, pursuant to its plea, was sentenced to pay a fine in the amount of $650,000. The amount of $200,000 was paid on the date of sentencing and $90,000 was to be paid each month thereafter. White Swan has paid the fine in full. On July 30, 1993, White Swan entered into a settlement agreement with the State of Texas. In connection with the settlement, the State of Texas filed an original petition, and a consent judgement and agreed permanent injunction. The settlement resulted in White Swan paying a civil fine in the amount of $35,000 and attorney's fees in the amount of $25,000. Mr. James Maurice Johnson, a former employee of White Swan, also pled guilty to an offense arising from the same transaction for which White Swan entered a plea. On March 12, 1991, a one count information was filed by the United States against Mr. Johnson (a former employee of White Swan's Houston Division Office involved in the preparation and submission of bids for the supply of wholesale grocery products to certain public school districts located in southeastern Texas) for violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. S. 1. Pursuant to Plea Agreement entered into between Mr. Johnson and the United States pursuant to Fed. R. Crim. P. 7(b), as well as a settlement agreement, Mr. Johnson entered a plea of guilty to the one count information, constituting commission of a public entity crime as defined within Section 287.133(1)(g), Florida Statutes. The information to which Mr. Johnson entered a plea of guilty detailed participation by him in a conspiracy to rig bids for the award and performance of contracts to supply wholesale grocery products to certain public school districts in Southeastern Texas in late 1986 through May 1990. The activities of Mr. Johnson did not involve any business conducted by White Swan within the State of Florida, by its Florida division. Pursuant to Sections 287.133(3)(a) and (b), Florida Statutes, White Swan timely notified DMS of its guilty plea resulting in conviction through submission of a Public Entity Crime Sworn Statement, dated January 20, 1992. By letter dated January 28, 1992, DMS corresponded with a representative of White Swan's Lakeland, Florida division requesting additional information regarding said conviction. By letter dated February 7, 1992, counsel for White Swan responded to the January 28, 1992, letter from DMS providing additional information and documentation regarding the conviction of Mr. Johnson. By letter dated March 9, 1992, DMS corresponded with counsel for White Swan requesting to be provided with additional information and documentation and, by letter of April 3, 1992, the requested information and documentation was forwarded to the Department. On April 21, 1994, DMS issued a Notice of Intent pursuant to Subsection 287.133(3)(e)1., Florida Statutes. The Notice of Intent was based on the June 10, 1993 conviction of White Swan of a public entity crime as defined by Section 287.133(1)(g), Florida Statutes. On May 10, 1994, pursuant to Subsection 287.133(3)(e)2., Florida Statutes, White Swan timely filed a petition for formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to determine whether it is in the public interest for White Swan to be placed on the State of Florida convicted vendor list. Subsection 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. Subsection 287.133(3)(e)3.d, Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the convicted vendor list. On August 5, 1991, Mr. Johnson was sentenced to five years probation (as well as service of four months confinement via electronic monitoring), and he was fined $10,000 payable at $200 per month over the five years' probation. Mr. Johnson is in full compliance with the terms of the sentence. White Swan has made full restitution to all of the school districts potentially involved in or affected by any of the subject activities of Mr. Johnson in southeastern Texas, and the potential claims against White Swan have been released. The subject school districts include: Alvin Independent School District; Alief Independent School District; Brazosport Independent School District; Clear Creek Independent School District; Columbia- Brazoria Independent School District; Channelview Independent School District; East Chambers Independent School District; Fort Bend Independent School District; Goose Creek Independent School District; Galveston Independent School District; Huntsville Independent School District; Katy Independent School District; Klein Independent School District; Sheldon Independent School District; Spring Branch Independent School District; Stafford Municipal School District; and Houston Independent School District. In total, White Swan has paid to these school districts the sum of $185,086.22. In each instance, the schools have agreed to utilize the amounts paid for restitution in conjunction with their nutritional programs, exclusive of those portions of the payments representing attorneys' fees and administrative expenses. White Swan commenced discussions with the Department of Justice on July 30, 1990, for the purpose of acceptance of responsibility for Mr. Johnson's actions, as well as for negotiations of a criminal fine in conjunction with the entry of a plea to a one count information. Upon finalization of the matter with the U.S. Department of Justice, White Swan paid a civil penalty to the State of Texas in the amount of $60,000. Subsection 287.133(3)(e)3.e, Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. Upon learning of the Grand Jury investigation and the possible violation of antitrust laws in connection with bids submitted to public schools in Southeastern Texas, in early June of 1990, White Swan fully cooperated with the Department of Justice. It encouraged the full cooperation of Mr. Johnson (and any and all other employees) in the investigation. White Swan immediately took affirmative steps to ensure a complete cessation of any activities of the nature alleged to have occurred, and it commenced its own internal investigation of the matter. Mr. Johnson was reprimanded and relieved from his responsibilities as bid manager for the Houston division. Separate counsel was engaged for Mr. Johnson. Through the cooperative efforts of White Swan, Mr. Johnson entered into a plea agreement and voluntarily entered a plea of guilty to the one count information. Pursuant to the negotiations with the Department of Justice, White Swan has submitted detailed information regarding the volume of commerce affected by the activities of Mr. Johnson (including detailed sales documentation regarding all items sold to the various entities during the relevant bid period). White Swan offered to provide any additional information or documentation which might be desired by the Department of Justice in conjunction with its investigation and plea negotiations. White Swan has fully cooperated with DMS in connection with its investigation initiated pursuant to section 287.133, Florida Statutes. Subsection 287.133(3)(e)3.f, Florida Statutes, establishes "[d]isassociation form any other person or affiliates convicted of the public entity crime" as a mitigating factor. White Swan reprimanded Mr. Johnson and removed him as bid manager for the Houston division, arranged for the institution of new procedures for handling bids by the Houston division and, in addition, appointed a new Houston division president. Mr. Johnson's employment has been subsequently terminated. The former Houston division president (Mr. John Cogniglio) was transferred to White Swan's Euless, Texas, office in the early fall of 1990. He currently holds the title of Director of Sales -- Coffees and Chemicals, and he does not have any supervisory responsibility over any management personnel located in the other divisions of White Swan. Subsection 287.133(3)(e)3.g, Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. White Swan has established an extensive antitrust compliance program (including adoption and distribution of written policies and guidelines) to educate all employees in position of authority in connection with the sales of any products (including but not limited to all those involved in the submission of bids to any public entity). White Swan, in late 1990, adopted for dissemination within the corporation and all divisional offices a comprehensive "Antitrust Policy and Compliance Guide" setting forth in detail the corporation's policy regarding strict compliance with any and all antitrust laws (state and federal), explaining the types and nature of activities prohibited and proscribed by those laws (including specific "do's and don't's"), covering commonly asked questions, etc. The Policy and Compliance Guide sets forth disciplinary actions the corporation may take against any employee violating the antitrust laws, including possible termination. The Policy and Compliance Guide addresses in detail the types of activities in connection with bidding on public entity contracts which are prohibited. White Swan has conducted educational sessions for all employees having responsibilities encompassed by the antitrust laws. A copy of the Policy and Compliance Guide was distributed to all management, sales, office, and clerical employees of the Florida division, and each of those employees signed acknowledgments of receipt and understanding of the information set forth therein. Training sessions were held at the Florida division on July 19- 20, 1991, and White Swan will continue to engage in periodic training sessions in each of its division offices. All supervisory personnel of the White Swan corporation have been advised of their responsibility to review the conduct of all employees under their supervision for adherence with all applicable antitrust laws, as well as other related laws applicable to the corporation's business, and each employee has been instructed to promptly notify corporate management in the event of the occurrence of any activity potentially violative of the antitrust laws or the corporate policy statement. Subsection 287.133(3)(e)3.h, Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. To date, White Swan has not been advised of any limitation placed upon its engaging in business with any public or private entities in any location throughout the United States including the school districts of Texas. Subsection 287.133(3)(e)3.i, Florida Statutes, establishes "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b)" as a mitigating factor. White Swan has fully complied in providing notification to DMS with regard to the guilty pleas and resulting convictions of White Swan and Mr. Johnson. It has also promptly supplied to DMS all information and documentation requested in conjunction with the investigation by DMS. Subsection 287.133(3)(e)3.j, Florida Statutes, establishes "[t]he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. White Swan is engaged in the sale of wholesale food supplies to various public entities within the State of Florida. As part of its April 3, 1992 response to the inquiry letter of DMS of March 9, 1992, White Swan provided a copy of the computer printout reflecting the names and addresses of all entities within the State of Florida to whom White Swan has sold products during the fiscal years 1989 through 1990, as well as a similar customer listing for the fiscal years 1991 through March 25, 1992. White Swan is a supplier of significant goods and services to public entities within the State of Florida through its Florida division office. The inability of White Swan's Florida division office to bid for the supply of wholesale health food products would have an impact on competition for the supply of those goods to public entities in the State of Florida. Subsection 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. The Florida division office of White Swan (like all other division offices) has been an active supporter of the activities of the public school districts located within its market area, including periodic donations of food preparation equipment and other supplies for school activities and charitable fund-raising functions. The Joint Stipulation filed in this case on June 1, 1994, provides a full and complete factual basis for determining whether White Swan should be placed on the convicted vendor list in light of the facts and criteria set forth in Subsection 287.133(3)(e)3.a. through k., Florida Statutes. There are no other disputed issues of material fact between DMS and White Swan which would require a formal hearing.
