Conclusions On October 27, 2014, an Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”) entered her ORDER CLOSING FILE AND RELINQUISHING JURISDICTION (“DOAH ORDER”) to the Madison County School Board (the “SCHOOL BOARD” or the “BOARD”) in the above captioned proceeding. A copy of the DOAH ORDER is attached hereto as Exhibit A. The DOAH ORDER indicates that copies were sent to counsel for the SCHOOL BOARD, George T. Reeves, Esq., and counsel for the Petitioner, NEW MILLENNIUM CHARTER SCHOOL, (the “CORPORATION”). The DOAH ORDER was stipulated to by the parties. This matter is now before the SCHOOL BOARD for final agency action.
The Issue The issue is whether Respondent's policy relative to the applicability of the maximum class-size statute to charter schools is a rule as defined in Section 120.52(16), Florida Statutes, which has not been adopted as required by Section 120.54, Florida Statutes.1/
Findings Of Fact Petitioners own and/or operate eight charter schools in Florida. They have been "substantially affected" by Respondent's maximum class-size policies at every level of implementation. Respondent's regulatory scheme requires charter schools to submit information and to comply with statutory class-size levels. Respondent's determination of non-compliance triggers penalties and adverse consequences for charter schools. Respondent has a comprehensive data management system for public school reporting and accountability. The system includes detailed definitions and reporting requirements on many facets of public education, including information on students, teachers, and public school facilities. This information has been incorporated by reference into Florida Administrative Code Rule 6A-1.0014, as database manuals. For example, the manuals contain a detailed student element using the Florida Inventory of School Houses (FISH) and a Classroom Identification Number, which creates an identifier for every classroom in every building and facility in the school district. Charter schools that do not have a "FISH" number may have one generated. Respondent uses a computational algorithm to calculate class size. The algorithm uses data elements and correlations to create classroom ratios. Many of the data elements are required by statute and/or existing rules for all public schools, including charter schools. For each school that does not meet class-size compliance requirements, a portion of funds attributed to that school will be transferred from operational funding to capital outlay funds. The amount transferred is equal to the full-time equivalent funds for the number of students over the cap. Respondent makes the initial transfer calculation, which is then replicated and approved by the State Board of Education, the Florida Education Finance Allocation Committee, and the Legislative Budget Committee. In November of 2007, Respondent calculated class size on the individual classroom level for all public schools, including charter schools. Respondent utilized data from the October student membership survey, which consists of data collected by the Respondent from public schools. The algorithm used by Respondent to calculate class size, including the data collected in November 2007, was not adopted as a rule until after the commencement of this proceeding. Class-size compliance forms, mandated by Respondent for use by charter schools that are determined by Respondent not to be in compliance with the maximum class-size act, have also not been adopted by any formal rulemaking process. Respondent's policies include an informal process for "appealing" adverse determinations. The informal appeal process has not been adopted as a rule. Respondent has published several Technical Assistance Papers, including TAP Nos: FY2005-04 and FY2006-01, applying the maximum class-size act and a computational class-size algorithm to charter schools. These papers were not adopted through the formal rulemaking process. Respondent withdrew TAP Nos: FY2005-04 and FY2006-01 by memorandum dated May 22, 2008. However, Respondent still maintains its policy that the maximum class-size act applies to Florida charter schools. In 2007, charter schools reported data and received data from Respondent regarding initial class-size figures. Some charter schools appealed the class-size calculations and the resulting transfer of operational funds to the State Board of Education. Cape Coral Charter School submitted information to Respondent, leading to a downward adjustment in the funds to be transferred to capital outlay. However, Cape Coral Charter School lost funds in part because of Respondent's initial determination that Cape Coral Charter School had failed to comply with the maximum class-size act. Respondent also formally determined in February 2008, that Cape Coral Charter School was ineligible to offer a voluntary pre-kindergarten program because of its 2007 determination that Cape Coral Charter School was not in compliance with the class-size strictures. The Florida Education Finance Program Appropriation Allocation Conference verified the transfer of capital outlay categorical funds as recommended by the Commissioner of Education on January 17, 2008. The Commissioner of Education recommended transfers in funds based upon class-size compliance to the State Board of Education, which approved the transfers on February 4, 2008. On February 21, 2008, the Legislative Budget Committee approved the transfer calculations. Florida Administrative Code Rule 6A-1.0014 incorporates by reference the database manual that Respondent uses to collect data from public schools on teachers, students and classroom space. The amendment to the rule, which became effective November 26, 2008, consists of an additional page in the database manual (Appendix AA). Appendix AA sets forth Respondent's class-size algorithm, which has been in use for several years. Appendix AA does not address the applicability of the maximum class-size act to Florida charter schools.
The Issue The issues to be decided are: (i) whether Respondent's interpretation of section 1006.12, Florida Statutes——namely, that charter school operators such as Petitioner, rather than school boards and superintendents, are obligated to assign "safe-school officers" to police charter school facilities—— constitutes an unadopted rule; (ii) whether Respondent's form, which solicits information from charter schools regarding their safe-school officers, constitutes an unadopted rule; and (iii) whether Respondent's denial of Petitioner's request for the assignment of safe-school officers to its charter schools constitutes inequitable treatment of charter schools as public schools.
Findings Of Fact Petitioner Renaissance Charter School, Inc. ("RCS"), is a nonprofit Florida corporation that operates six charter schools located within the Palm Beach County School District (the "District"). The District is a constitutionally created political subdivision of the state whose geographic jurisdiction ("district region") is Palm Beach County.1/ As used herein, the term "district administration" will refer generally and collectively to the district school officers, officials, and employees through whom the District acts. Respondent The School Board of Palm Beach County, Florida (the "Board"), is the collegial body established under the Florida Constitution to operate, control, and supervise all free public schools within the District.2/ Its members are elected to office by the voters of the District. The Board is the "sponsor" of RCS's charter schools. As a sponsor, the Board is empowered to exercise a form of regulatory jurisdiction over all charter schools within the District. The Board's sponsorship authority includes the power to deny the renewal of, or terminate, a charter agreement.3/ Although owned and operated by private interests, charter schools are public schools. As such, charter schools receive a portion of the public funds appropriated to educational purposes. These funds follow students, so that a particular charter school's share of available funds is based upon its student enrollment. Funding sources include, among other things, "categorical program funds" appropriated by the Florida Legislature to specific purposes, of which charter schools are entitled to a proportionate share. Financial resources flow to charter schools through their sponsors, which are required to make timely payments to the charter schools within their respective district regions. In an immediate response to the infamous mass shooting that took place at a high school in Parkland, Florida, on February 14, 2018, the Florida Legislature enacted the Marjory Stoneman Douglas Public Safety Act (the "Safety Act"), which was signed into law and took effect less than one month after the outrage, on March 9, 2018. Among other features, the Safety Act imposes new obligations regarding the stationing of "safe-school officers" ("SSOs") at all public school facilities. SSOs must be certified law enforcement officers except that, in circumstances not shown to exist in this case, regular employees who qualify for appointment as "school guardians" may also serve as SSOs. There is no dispute in this case that, under the Safety Act, one or more SSOs must be assigned to each charter school facility in the District, including RCS's six schools. The question is, whose duty is it to assign SSOs to charter schools? The Board's answer, clearly expressed in word and deed, is this: It's not our job; rather, the obligation falls to each charter school to arrange police protection for its own campus, as though each charter school were a school district unto itself. Indeed, failing that, the charter school will be in violation of the Safety Act. Accordingly, the Board has not assigned SSOs to the charter schools in the District.4/ Nor, apart from paying charter schools their respective proportionate shares of a categorical appropriation for school safety called the Safe Schools Allocation, which preexisted the Safety Act, has the Board provided any funds to cover the cost of police protection. By letter dated March 14, 2018, RCS's security director sent a letter to the District requesting that the Board provide a full-time SSO to each of RCS's charter schools in the district region. The District denied this request via a reply letter dated March 28, 2018, which stated that RCS would need to look to "the governing board of the six Renaissance Charter Schools operating in" Palm Beach County "for assistance [in] implementing the Safety Act or for providing the" SSOs. On April 4, 2018, the Board adopted a resolution declaring its opposition to the deployment of district employees as school guardians, thereby manifesting an intention to rely exclusively on school police or other certified law enforcement officers for the protection of students and school personnel. By this resolution, the Board exercised its discretion, under the Safety Act, to opt the District out of participation in the Coach Aaron Feis Guardian Program ("Guardian Program"). In August 2018, RCS submitted a request for mediation services to the Florida Department of Education ("DOE") pursuant to section 1002.33(7)(b). Specifically, RCS wanted DOE to mediate the ongoing dispute between RCS and the Board over the responsibility for assigning police officers to charter schools in accordance with the Safety Act. The Board refused to mediate. Thus, by letter dated August 27, 2018, the commissioner notified the parties of her decision that the dispute "cannot be settled through mediation" and "may be appealed to an administrative law judge appointed by the Division of Administrative Hearings." Thereafter, RCS sent a letter dated September 12, 2018, to the School District Chief of Police asking to enter into negotiations with the School District Police Department for the provision of police officers to its facilities through a cooperative agreement. As of the final hearing, some four months later, RCS had received no response from the district administration. On or about October 3, 2018, district administrative staff prepared a survey using Google Forms that was sent by email to each charter school in the District with the subject line, "TIME-SENSITIVE REQUEST Re: Safe-School Officers." The email contained a link to an online form, titled "Charter School Safe-School Officers FY19" (the "Form"). Recipients were instructed to "complete this form by noon on Thursday, October 4, 2018." The survey consisted of six queries. Three were dual choice, yes/no questions that would be answered by selecting the appropriate radio button. Three others required the recipient to type in a short answer. The five questions that "required" an answer were marked with an asterisk. The form solicited the following information: Provide your school name.* [Your answer] Do you have a safe-school officer on your campus?* [Yes/No] Is the safe-school officer on your campus Monday – Friday during all school hours?* [Yes/No] If not, please identify the safe-school officer's schedule. [Your answer] Is the safe-school officer armed?* [Yes/No] Provide the name of the agency that employs the safe-school officer.* [Your answer] The Board maintains that completion of the survey was "optional" and that no charter school has suffered, or will suffer, any adverse consequences for failing to provide a timely response. The Board has not adopted the Form as a rule pursuant to the rulemaking procedure prescribed in the Administrative Procedure Act. More broadly, the Board has not adopted any rules implementing the Safety Act, nor has it codified the statement, which it has clearly embraced, that charter schools in the district region are required by law independently to arrange, on their own authority, police protection for their own campuses.
The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
Findings Of Fact Stipulated Facts Florida High is a charter school created pursuant to section 1002.33(5)(a)2. Florida High is a public school. Pursuant to section 1002.33(5), FSU is the sponsor of Florida High, has executed a charter agreement with FSUS, and performs the duties listed in the charter agreement. Florida High was originally created as a developmental research school and receives public funding for its operations as set forth in section 1002.32(9). Florida High?s student admissions are governed in part by sections 1002.21 and 1002.33(10)(a). FSUS employees are public employees and are part of the Florida Retirement System. The Public Employees Relations Commission has certified a unit of FSUS? instructional personnel for purposes of engaging in collective bargaining. FSUS teachers are subject to the same instructional certification requirements as those for all of Florida?s public school teachers. In establishing Florida High as a lab charter school, FSU and FSUS drafted a charter agreement. The charter agreement was executed by both parties after holding a public hearing. FSUS adopted the Student Code of Conduct after holding a public hearing. FSUS is subject to Florida?s public records laws as set out in chapter 119. All meetings of FSUS? Board of Directors, unless otherwise exempt, are subject to the requirements of Florida?s Sunshine Act and must be noticed and open to the public. FSUS is subject to the class size requirements of Florida?s public school system. FSUS is required to administer the Florida Comprehensive Assessment Test to all students, and the school is included in the state grading system for public schools and subject to specific repercussions by the Department of Education in the event of a failing grade. FSUS is required to report student assessment data to every parent of a student at the school, the school district, and its Board of Directors, and must maintain a website and post this data as well as follow the State Board of Education?s rules pertaining to public notice of school performance. Florida High?s Director files an annual financial disclosure of financial interest with the Florida Commission on Ethics. FSUS has the status of a “Local Education Agency” allowing it to receive federal funds. Jack Carswell was withdrawn from Florida High in part due to paragraph “k” of the Student Code of Conduct entitled “Withdrawal of Invitation”. Additional Facts Petitioner, Jack W. Carswell, was, until the 2013-2014 school year, a student at FSUS, having attended since 2002. Petitioners, Julie and Scott Carswell are Jack W. Carswell?s parents. Charter schools are public schools, and are part of the state?s program of public education. Charter schools may be sponsored by district school boards in the county over which the district school board has jurisdiction, or by a state university. Charter schools sponsored by a state university are in a separate category known as developmental research (laboratory) schools, or “lab schools.” With certain exceptions not applicable here, there is a limit of one charter lab school per state university. Respondent, FSUS, is a lab school created under the authority of sections 1002.32 and 1002.33. Respondent, FSU, is a state university, and is the sponsor of FSUS. The alleged unadopted rule at issue in this proceeding is found at section VI.K. of the Student Code of Conduct, which provides that: K. Withdrawal of Invitation/Expulsion When a student?s behavior is repeatedly inappropriate to others or continues to exhibit absolute disregard for the conditions of behavior set by the school, a meeting will be held and the Principal may recommend to the Director expulsion or permanent withdrawal of invitation of the student. The Principal/designee may recommend to the Director expulsion or withdrawal of invitation any student enrolled when his or her presence has or tends to substantially disrupt or interfere with the orderly educational process, destroys school property, endangers the health or safety of the student or others or infringes on the rights of others. (1) Withdrawal of Invitation FSUS is a school of choice that extends invitations on an annual or longer basis. The administration will decide the viability of a particular student?s invitation to attend FSUS at the end of each school year. Attendance and disciplinary issues will be considered when making these determinations. If it is decided that a particular student?s invitation should be withdrawn, then the Principal will make a written recommendation to the Director. Parents will be formally notified by the administration of a withdrawal of invitation for the next school year during the summer. Every attempt will be made to notify parents of the withdrawal of an invitation as early as possible in the summer so that arrangements for enrolling the student in their home school can be made. The Director may withdraw an invitation as prescribed in this Code or a parent or guardian may voluntarily withdraw the student. Documentation for withdrawal of invitation is a confidential record between the parents/guardian(s) and the school. Such documentation shall not be included in the student?s permanent record. A student cannot avoid expulsion by withdrawing from school. The only rulemaking authority granted by the Legislature in sections 1002.32 or 1002.33 is that conferred on the State Board of Education to adopt rules on how to form and operate a charter school and how to enroll in a charter school once it is created, which rules are to include a model application form, standard charter contract, standard evaluation instrument, and standard charter renewal contract. §§ 1002.33(21)(b)3.b. and 1002.33(27), Fla. Stat.1/ Charter school systems (see section 1002.33(20)(a)4., section 1002.33(20)(a)6., and section 1002.332) have been designated as “local educational agenc[ies]” for the limited purpose of receiving federal funds. § 1002.33(25), Fla. Stat. As further established in that section, however, “[s]uch designation does not apply to other provisions unless specifically provided in law.”
