The Issue The issue in these cases is whether amendments to the Broward County Comprehensive Plan are "in compliance" as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Economic Development Council of Broward, Inc. (hereinafter referred to as "EDC") is a not-for-profit corporation organized and existing under the laws of Florida. EDC's principal place of business is 1263 East Las Olas Boulevard, Fort Lauderdale, Broward County, Florida. The Florida Home Builders Association (hereinafter referred to as "FHBA") is a not-for-profit corporation organized and existing under the laws of Florida. FHBA's principal place of business is 210 East Park Avenue, Tallahassee, Leon County, Florida. The Building Industry Association of South Florida (hereinafter referred to as "BIASF") is a not-for-profit corporation organized and existing under the laws of Florida. BIASF's principal place of business is 15225 Northwest 77th Avenue, Miami Lakes, Dade County, Florida. The Florida Association of Realtors (hereinafter referred to as "FAR") is a not-for-profit corporation organized and existing under the laws of Florida. FAR's principal place of business is 7025 Augusta National Drive, Orlando, Orange County, Florida. The Department of Community Affairs (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Broward County Board of County Commissioners (hereinafter referred to as the "Broward County Commission"), is the governing body of Broward County, Florida. Broward County is a political subdivision of the State of Florida. The Broward County Commission is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction. The School Board of Broward County (hereinafter referred to as the "School Board") is the governing body of the school district of Broward County. Section 4(a), Article IX of the Constitution of the State of Florida. The School Board is charged with responsibility to "operate, control and supervise all free public schools" within Broward County. Section 4(b), Article IX of the Constitution of the State of Florida. Standing. EDC was formed in 1979 to represent the interests of residential land developers in Broward County. EDC is active in representing the interests of its members before governmental bodies in the southeastern region of Florida, including Broward County. FHBA represents approximately 16,000 members statewide. BIASF represents approximately 900 members from several counties. FAR represents approximately 63,750 members statewide. The subject matter of the plan amendments at issue in these cases is within the general scope of interest and activity of Petitioners. Petitioners submitted oral and written comments, recommendations, and objections to Broward County throughout the adoption process of the plan amendments at issue in these cases. The parties stipulated, and the facts support a finding, that Petitioners have standing to institute these proceedings. The evidence also supports a finding that the School Board has standing to participate in these proceedings. The School Board was involved in the preparation of the plan amendments at issue in these cases, and the amendments directly impact the manner in which funds for the construction of educational facilities are raised. The Charter of Broward County Florida. Broward County enacted the Charter of Broward County Florida (hereinafter referred to as the "Charter"), granting Broward County final authority over land use planning in Broward County and all municipalities located therein. The Charter establishes requirements and standards that municipalities located in Broward County must follow for land use planning and development approval. All municipal land use plans must be approved and certified by the Broward County Planning Council (hereinafter referred to as the "Planning Council") and the Broward County Commission. The Planning Council has been designated as a "local planning agency" by the Broward County Commission. The Charter was adopted November 5, 1974. The Charter was effective January 1, 1975. Section 6.05, Article VI of the Charter requires that municipal land use plans must be in "substantial conformity" with the Broward County Land Use Plan. To the extent that a municipality does not adopt a land use plan, the Broward County Land Use Plan applies in that municipality. Section 6.04, Article VI of the Charter provides that Broward County ordinances dealing with land use planning prevail over municipal ordinances. As a result of a 1976 referendum, Section 6.12, Article VI of the Charter was amended to grant Broward County authority over platting of lands throughout Broward County. It also grants Broward County authority to implement a countywide growth management system, including a concurrency management system. School Board Authority. Chapter 230, Florida Statutes, provides for the creation of school districts throughout Florida and their regulation by school boards. Among other things, school boards are vested with the responsibility and authority for the operation and administration of all public schools within their respective school districts. Section 230.23, Florida Statutes, grants the following powers, among others, to school boards: ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS.--Adopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district, as follows: Schools and attendance areas.--After considering recommendations of the superintendent, to authorize schools to be located and maintained in those communities in the district where they are needed to accommodate, as far as practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools and to approve the area from which children are to attend each such school. . . . . (j) Cooperate with other agencies in joint projects. Adopt plans for cooperating with school boards of other districts in this state or in adjoining states or with other governmental agencies . . . for such joint projects or activities as may be authorized by regulations of the state board. . . . . SCHOOL PLANT.--Approve plans for locating, planning, constructing, sanitating, insuring, maintaining, protecting, and condemning school property as prescribed in chapter 235 . . . . FINANCE.--Take steps to assure children adequate educational facilities through the financial procedure authorized in chapters 236 and 237 . . . . Other pertinent statutory provisions governing school boards include Chapter 235, Florida Statutes (planning and construction of educational facilities), Chapter 236, Florida Statutes (Finance and Taxation by School Districts), and Chapter 237, Florida Statutes (Financial Accounts and Expenditures for Public Schools). Public Schools Concurrency. Section 163.3177(10)(h), Florida Statutes (Supp. 1996), provides the following with regard to "concurrency" provisions of comprehensive growth management plans adopted pursuant to the Act: (h) It is the intent of the Legislature that public facilities and services needed to support development shall be available concurrent with the impacts of such development in accordance with s. 163.3180. In meeting this intent, public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that development are available concurrent with the impacts of the development. . . . The terms "public facilities" are defined in Section 163.3164(24), Florida Statutes (1995), to mean "major capital improvements, including, but not limited to . . . educational . . . ." Despite the Legislative intent with regard to concurrency set out in Section 163.3177(10)(h), Florida Statutes, concurrency is not required for all public facilities and services. Section 163.3180(1)(a), Florida Statutes (Supp. 1996), sets out the circumstances under which "concurrency" is mandatory: (1)(a) Roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and mass transit, where applicable, are the only public facilities and services subject to the concurrency requirement on a statewide basis. Additional public facilities and services may not be made subject to concurrency on a statewide basis without appropriate study and approval by the Legislature; however, any local government may extend the concurrency requirement so that it applies to additional public facilities within its jurisdiction. Pursuant to the foregoing provisions of the Act, local governments are not required to provide in their comprehensive plans that educational public facilities (hereinafter referred to as "Public Schools") needed to support development must be made available concurrent with the impacts of such development. Local governments may, however, elect to include such a requirement in their plans. Any local government that elects to require concurrency for Public Schools must do so pursuant to the provisions of Section 163.3180, Florida Statutes. Section 163.3177(10)(h), Florida Statutes. In particular, Section 163.3180(1)(b), Florida Statutes, requires that local governments that elect to require concurrency for Public Schools must first conduct a study (hereinafter referred to as the "Study"): If a local government elects to extend the concurrency requirement to public schools, it should first conduct a study to determine how the requirement would be met and shared by all affected parties. The local government shall provide an opportunity for full participation in this study by the school board. . . . Once the Study is completed, Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts a plan amendment providing for Public Schools concurrency must comply with the following: Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan. Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. and 2. Broward County's Comprehensive Plan. Broward County has adopted a comprehensive plan (hereinafter referred to as the "Plan") which has been found "in compliance" as defined in the Act. The Plan consists of, among other things, a future land use element (hereinafter referred to as the "Land Use Plan"), a capital improvements element (hereinafter referred to as the "Capital Improvements Element"), and an intergovernmental coordination element (hereinafter referred to as the "Intergovernmental Coordination Element"). Joint Exhibit 17 and EDC Exhibit 21. Broward County has implemented a county-wide concurrency management system for traffic and regional parks through the Land Use Plan. See Policies 08.06.03 and 11.01.01 of the Land Use Plan. Until the adoption of the amendments which are the subject of these proceedings, Broward County had not extended concurrency requirements to Public Schools. Broward County's Decision to Require Public Schools Concurrency; The Broward County Study. Broward County amended the Plan in 1993 to authorize a Study. Broward County added Policy 08.07.03. to the Land Use Plan authorizing preparation of a Study: Broward County, in coordination with the School Board of Broward County, shall prepare a study, to be completed by the end of 1993 and updated no later than annually, addressing long range planning of public elementary and secondary school sites and facilities necessary to meet the demands of Broward County's projected population and to determine if public elementary and secondary schools concurrency requirements shall be met and shared by all affected parties in accordance with Chapter 163.3180 of the Florida Statutes. The School Board agreed to participate with Broward County in the preparation of the Study. No formal agreement dealing with the Study was entered into between the School Board and Broward County. No such agreement is, however, required by Section 163.3180(1)(b), Florida Statutes, or any other provision of the Act. All that is required is that the "local government" conduct the study and allow participation by the local school board. On November 19, 1993, the Broward County Public School Concurrency Study (hereinafter referred to as the "Broward County Study") was issued. The cover of the Broward County Study is stamped "Draft." No further modifications, however, were made to the Broward County Study marked Draft. The Broward County Study was prepared jointly by Broward County's Department of Strategic Planning and Growth Management, the County Attorney's Office, the Planning Council, and the School Board's Property Management Department. Broward County afforded the School Board full opportunity to participate in the preparation of the Broward County Study. At the time that the Broward County Study was completed, the Broward County Commission had not officially voted to adopt Public Schools concurrency. The Broward County Study did not include a recommendation as to whether the Broward County Commission should adopt Public Schools concurrency. Why a specific recommendation was not included, and what the Broward County Study does include, was summarized in the Introduction to the Broward County Study: . . . . The first chapter of the study presents and analyzes the steps and procedures necessary to implement a concurrency requirement and concurrency management system for public schools. . . . Also addressed is the question of when in the development process the test for concurrency would be met including which development permits would be affected. Finally, this chapter analyzes the feasibility of establishing a county-wide concurrency management system for public schools within Broward County. The second chapter reviews and evaluates potential level of service (LOS) standards for public schools. Alternative methods for determining school capacity, [sic] are identified and analyzed. Several options for applying a LOS, ranging from a school by school application to a county-wide systems approach, are evaluated. Potential ways development could address or mitigate school LOS deficiencies are identified. Maps showing the possible impacts of implementing public school concurrency are included in the Appendix. The final chapter reviews the legal implications of a concurrency requirement. . . . This study does not include a recommendation as to whether or not Broward County should pursue a concurrency requirement for public schools. There are numerous policy issues which must be addressed prior to such a decision being made. Rather, the study attempts to identify the most feasible method for implementing a concurrency requirement for public schools in Broward County. The study also evaluates the likely impacts of a concurrency requirement on future development within the County. The study provides the School Board of Broward County and Broward County Commission with the information needed to make an informed decision regarding public school concurrency. A Summary of Findings is included on pages 3 through 6 of the Broward County Study. The Broward County Study met the requirements of Section 163.3180(1)(b), Florida Statutes. Broward County's Local Planning Agencies. Section 163.3174, Florida Statutes, requires that all local governments designate a "local planning agency." The local planning agency, which may be the governing body of the local government, is charged with the responsibility for preparing comprehensive plans and plan amendments under the Act. The local planning agency is required to conduct public hearings after giving notice and to make recommendations to the local government. The Broward County Commission has designated by ordinance two bodies to act as the local planning agency for Broward County: (a) the Planning Council; and (b) the Broward County Department of Strategic Planning and Growth Management (hereinafter referred to as "Planning Department"). The Planning Council is an entity established by the Charter. The Planning Council has been designated in Sections 5-115 and 5-116 of the Broward County Code as the local planning agency for the Land Use Element and the Plan's Future Land Use Map. The Planning Council is also charged with the duty and responsibility to certify whether comprehensive plans of Broward County municipalities are at least as restrictive as the Land Use Plan. The Land Use Plan applies to incorporated and unincorporated areas of Broward County. The Planning Council is responsible for the publication of all notices for public hearings which relate to the amendment of the Land Use Plan or the Plan's Future Land Use Map. The Planning Department is the local planning agency for all elements of the Plan applicable to the unincorporated areas of Broward County. In particular, the Planning Department serves as the local planning agency for purposes of the Capital Improvements Element and the Intergovernmental Coordination Element, among others. On June 22, 1994 and June 28, 1994, Broward County and the School Board entered into an Interlocal Agreement titled "Agreement Between Broward County and the School Board of Broward County, Florida, for the Preparation and Implementation of a Public School Element" (hereinafter referred to as the "Element Preparation Agreement"). Pursuant to the Element Preparation Agreement, the Broward County Commission designated the School Board as the local planning agency for purposes of preparing a countywide Public School Facilities Element. The School Board agreed to the designation. On July 11, 1994, the Broward County Commission adopted Ordinance 95-31, amending the Charter of Broward County to provide that the School Board would act as the local planning agency for the Public School Facilities Element. The School Board had not been designated as a local planning agency at the time the Broward County Study was conducted. Nor was the Broward County Study modified after the School Board was designated as the local planning agency. The School Board's Preparation of the Public School Facilities Element and Related Amendments. The School Board, as a local planning agency, conducted a public workshop on Public Schools concurrency, after public notice, on July 19, 1995. On August 14, 1995, a second workshop was held. At this workshop, School Board staff presented a draft of the Public School Facilities Element to the Broward County League of Cities Technical Advisory Committee. A third workshop to consider the draft element was conducted on August 16, 1995. Public notice of this workshop was given. On October 2, 1995, School Board staff conducted a retreat to consider the draft element. The Five Year Capital Outlay Plan was also considered at the retreat. A second retreat was held on October 31, 1995. On November 14, 1995, the School Board, in its capacity as a local planning agency, conducted a local planning agency public hearing to consider the adoption of a Public School Facilities Element. The School Board adopted Resolution 96-20, transmitting a draft of a Public School Facilities Element to the Broward County Commission and recommending its adoption. The draft element consisted of two volumes: (a) Volume I, "Components for Adoption"; and (b) Volume II, "Supporting Documents." Included in the Public School Facilities Element was a Financially Feasible Public School Capital Facilities Program. On November 21, 1995, the School Board adopted its Five Year Capital Outlay Plan (1995-96 to 1999-00). This plan was identical to the Financially Feasible Public School Capital Facilities Program included in the Public School Facilities Element. The School Board also adopted Resolution 96-19 at its November 14, 1995, local planning agency meeting. This resolution transmitted proposed amendments to the Land Use Plan to the Planning Council. The amendments related to the Public School Facilities Element. The School Board recommended that the Planning Council recommend to the Broward County Commission that it adopt the amendments to the Land Use Plan. The Planning Council's Consideration of Proposed Broward County Land Use Plan Amendments. On March 28, 1996, the Planning Council conducted a duly noticed public hearing at which it considered the amendments to the Land Use Plan proposed by the School Board. After modification by the Planning Council, the amendments proposed by the School Board were transmitted to the Broward County Commission. The amendments were recommended for approval by the Broward County Commission. The amendments included an amendment to Policy 08.07.02 of the Land Use Plan, and the addition of new Policies 08.07.08 through 08.07.13 to the Land Use Plan. All of these amendments related to Public Schools concurrency and are described in more detail, infra. Broward County Commission's Review of the Proposed Amendments and Its Decision to Transmit the Proposed Amendments to the Department. The Broward County Commission provided notice of a public hearing on the proposed Public Schools concurrency amendments to be held on May 1, 1996. At the hearing, the Broward County Commission voted to transmit the Public School Facilities Element recommended by the School Board and the amendments to the Land Use Plan recommended by the Planning Council to the Department for review pursuant to the Act. The proposed amendments were transmitted to the Department on May 10, 1996. The Department's Review of the Proposed Public Concurrency Amendments. On July 9, 1996, representatives of the School Board met with Department representatives charged with responsibility for review of the proposed amendments. The School Board representatives were advised by Department personnel that the Public School Capital Facilities Program included in the Public School Facilities Element was required by the Act to be included in the Capital Improvements Element of the Plan. On July 19, 1996, the Department, having reviewed the proposed amendments, issued its Objections, Recommendations and Comments Report (hereinafter referred to as the "ORC"). The ORC was transmitted to the Broward County Commission by cover letter dated July 19, 1996. The Department raised the following objections in the ORC: The failure to include the Financially Feasible Public School Capital Facilities Program in the Capital Improvements Element; The failure to enter into an Interlocal Agreement with the School Board; The absence of certain policies pertaining to the time- frame in which new facilities would be required to be in place to serve new development when mitigation is proposed; The existence of certain internal inconsistencies in goals, objectives, and policies of the proposed element; and The existence of certain inconsistencies with the State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida. The Department recommended in the ORC that the financially feasible Public School Capital Facilities Program be included in the Capital Improvements Element of the Plan. The Department sent a supplemental letter to Broward County on the same date that it transmitted the ORC. The letter was intended by the Department to supplement the ORC by suggesting that the proposed amendments failed to amend the Intergovernmental Coordination Element of the Plan, consistent with Section 163.3177(6)(h)2, Florida Statutes. The July 19, 1996, supplemental letter was sent as a result of comments concerning the ORC made to the Department by Mr. Thomas Pelham. Broward County's Adoption of the Amendments. Section 6.05 of the Charter provides that the Planning Council "may propose amendments to the County Land Use Plan at any time after consideration at two public hearings." The Planning Council had conducted one public hearing. Therefore, it was required pursuant to the Charter to conduct a second public hearing. On August 22, 1996, the Planning Council, in its role as a local planning agency, held a duly noticed public hearing on the proposed amendments to the Land Use Plan. This second meeting was not required by the Act. On September 11, 1996, the Broward County Commission held a duly noticed public hearing. This meeting was required by Section 163.3184(7), Florida Statutes, and was conducted consistent with the requirements of Section 163.3184(15), Florida Statutes. During this public hearing Ordinance 96-30 was promulgated, approving, among other things, a Public School Facilities Element; amendments to the Land Use Plan; amendments to the Capital Improvements Element; and amendments to the Intergovernmental Coordination Element (hereinafter referred to jointly as the "Amendments"). On the same date the Amendments were adopted, Broward County and the School Board entered into an Interlocal Agreement Between Broward County and the School Board of Broward County, Florida, for the Implementation of the Public School Facilities Element (hereinafter referred to as the "Interlocal Agreement"). The Interlocal Agreement was executed in response to the Department's supplement to the ORC suggesting that the requirements of Section 163.3177(6)(h)2, Florida Statutes, had not be complied with. On September 18, 1996, the Planning Council transmitted the Amendments, a response to the ORC, and the Interlocal Agreement to the Department. The Planning Department did not conduct any public hearings to consider the amendments to the Intergovernmental Coordination Element or the Capital Improvements Element adopted on September 11, 1996, by the Broward County Commission in response to the ORC. The substance of the amendments to the Intergovernmental Coordination Element and the Capital Improvements Element suggested by the Department was considered at public hearings prior to transmittal of the proposed amendments and the adoption of the Amendments. The substance of the amendments was approved and recommended to the Broward County Commission, was adopted by the Broward County Commission, and was ultimately reviewed by the Department. Throughout the process, the Planning Department was fully aware of the nature of the proposed amendments and the Amendments. Even though the Planning Department relied heavily on the School Board's review of the Financially Feasible Public School Capital Facilities Program, the evidence failed to prove that the Planning Department would not have relied upon the School Board's expertise even it if the Planning Department had conducted a separate local planning agency hearing. The amendments to the Capital Improvements Element and the Intergovernmental Coordination Element adopted in response to the ORC were not reviewed by the South Florida Regional Planning Council or any other agency. Nor was a separate ORC issued by the Department following a review of those amendments pursuant to Section 163.3184, Florida Statutes. The Department's First Notice of Intent and Challenges Thereto. On October 24, 1996, the Department issued a Statement of Intent finding the Amendments not in compliance. This determination was based upon the Department's conclusion that the Interlocal Agreement was defective. The basis for the Department's determination is explained, infra. The Department recommended that the defect be corrected by deleting paragraph 3.7a from the Interlocal Agreement. On November 5, 1996, and November 14, 1996, the Broward County Commission and the School Board respectively amended the Interlocal Agreement by deleting paragraph 3.7a of the Interlocal Agreement in an effort to bring the Amendments into compliance. On November 11, 1996, before the amended Interlocal Agreement could be transmitted to the Department, the Department's Notice of Intent finding the Amendments not in compliance was published. On December 2, 1996, twenty-one days after publication of the Department's Notice of Intent, EDC filed a Petition to Intervene with the Division of Administrative Hearings. The Petition to Intervene was filed in an effort to intervene in any case that the Department had initiated against Broward County as a result of the Department's determination that the Amendments were not in compliance. On December 6, 1996, the petition was also filed with the Department. The Department's Second Notice of Intent and Challenges Thereto. On November 18, 1996, the amended Interlocal Agreement was transmitted by Broward County to the Department. On November 24, 1996, the Department issued a second Notice of Intent finding the Amendments to be in compliance. On November 27, 1996, FHBA, BIASF, and FAR filed a Petition for Administrative Hearing with the Department. The petition was "directed to the [second Notice of Intent] to find the amendment in compliance with statutory requirements." It was asserted, however, that the petition should be considered as filed pursuant to Section 163.3184(10), Florida Statutes, in light of the fact that it had been filed within twenty-one days of the publication of the first Notice of Intent. On December 13, 1996, EDC filed a Petition for Administrative Hearing and Motion to Convert or Alternatively Quash or Dismiss Proceedings with the Department of Community Affairs. This petition was filed in response to the second Notice of Intent. The petition and motion were filed by the Department with the Division of Administrative Hearings on December 31, 1996. EDC's petition was designated Case Number 96- 6138GM. The petition and an amended petition filed by FHBA, BIASF, and FAR were filed by the Department, after efforts to mediate a settlement had failed, with the Division of Administrative Hearings on April 21, 1997. The petition was designated Case Number 97-1875GM. Case Number 96-6183GM and Case Number 97-1875GM were consolidated on April 29, 1997. The School Board intervened in Case Number 96-6183GM on February 5, 1997. The School Board intervened in Case Number 97-1875GM on April 29, 1997. Statutory Criteria for Public Schools Concurrency. The Legislature has established two general criteria which must be complied with if a local government decides to impose Public Schools concurrency: The establishment of a "level of service" (hereinafter referred to as "LOS") for Public Schools; and Satisfaction of certain intergovernmental coordination requirements. Section 163.3180(1)(b), Florida Statutes (Supp. 1996), establishes the two criteria which must be met: Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan. Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. And 2. The Amendments. In pertinent part, Broward County adopted the following amendments to the Plan: The Land Use Plan was amended by revising and adding policies to Objective 08.07.00; A Public School Facilities Element was added to the Plan; The Capital Improvements Element was revised by the addition of a new policy to Objective 7 of the Capital Improvements Element; and The Intergovernmental Coordination Element was revised by the addition of a new policy to Objective 1 of the Intergovernmental Coordination Element. The Public School Facilities Element. The Amendments include a new Public School Facilities Element of the Plan. This element includes four new goals. Objectives and polices for each goal are also adopted. The following are the four new goals of the Public School Facilities Element: Goal 1 01.00.00 Maximize cooperation and coordination between The School Board of Broward County, Florida . . ., the Broward County Board of County Commissioners . . ., Broward County's local government entities, and others to effectively plan for public elementary and secondary school facilities to meet the current and future need of Broward County's public school population. . . . . Goal 2 02.00.00 Manage and utilize prudently funds from the existing and future sources for school facilities and investigate and identify innovative funding mechanisms to meet the existing and expanding need for future Broward County public school facilities. . . . . Goal 3 03.00.00 Develop policies to promote ethnic and cultural diversity within the student population. . . . . Goal 4 04.00.00 Ensure that public school facilities will be available for current and future public school students when needed in accordance with the School Board's financially feasible Public School Capital Facilities Program and adopted level of service standard. To the extent relevant to this proceeding, the objectives and policies of the Public School Facilities Element are discussed in more detail, infra. The Adoption of Public School Concurrency. Newly enacted Objective 04.01.00 of the Public School Facilities Element specifically requires that the framework for implementation of county-wide Public Schools concurrency will be adopted as part of the land development regulations: The School Board and Broward County shall adopt the necessary goals, objectives, and policies to provide the framework for implementation of a county wide concurrency management system to be contained within the Broward County Land Development Code. Additionally, a number of new objectives and policies concerning the county-wide Public Schools concurrency program adopted by the Broward County Commission were included in the Public School Facilities Element: Policies The School Board and Broward County shall adopt level of service standard B, delineated in Figure PS-20, Public School Facilities Element, as the county wide level of service standard for public school facilities in Broward County. The School Board's adopted financially feasible Public School Capital Facilities Program is adopted into the Capital Improvements Element of the Broward County Comprehensive Plan by reference, and in the event of a natural disaster, the School Board may suspend the financially feasible Public School Capital Facilities Program as necessary. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process. The School Board will annually revise and adopt a capital budget consistent with the financially feasible Public School Capital Facilities Program to achieve the adopted level of service standards. Objective Adopt a concurrency management system within the Broward County Land Development Code for county wide implementation of public school concurrency to ensure that the necessary public school facilities are available concurrent with the impact of proposed residential development to meet adopted level of service standards in accordance with the School Board's financially feasible Public School Facilities Program. Policies The service districts for public school concurrency determination and implementation shall be the School Board's effective school boundary areas and assigned usage for each school, as adopted annually by the School Board. Public school concurrency determination for proposed residential development shall be conducted during the Broward County plat review process. The school capacity measure used to determine implementation of the public school concurrency provisions, for residential development(s) applying for public school concurrency approval, shall only include student capacities from existing public schools and anticipated capacities from projects funded in the School Board's annually adopted Capital Budget. Portables and portable schools are considered temporary measures and capacity from the School Board's Nineteen New School Plan (revised) shall be first used to meet the existing student station deficit. The projected student impact of any proposed residential development under consideration will be determined by using the Broward County adopted student generation rates contained within the Broward County Land Development Code. If the adopted level of service standards cannot be met, the developer will be permitted to mitigate such impacts through School Board approved public school concurrency mitigation alternatives provided for in the Broward County Land Development Code. These mitigation alternatives will ensure that public school capacity will be available at the time the impacts of the development occur and benefit the development providing for mitigation measures. These mitigation alternatives will include, but not be limited to, the following, the use of which must be approved by the School Board prior to County Commission action on the development approval: construction of classroom space equal to the anticipated future student impact, less paid impact fees, or participation in a School Board approved program (i.e. Pembroke Pines Special Assessment District) for the provision school facilities, or other School Board approved mitigation alternatives which may be provided for in the Code. The Plan includes a transportation concurrency management system which has been in existence since 1989. The Public Schools concurrency system adopted in the Amendments is very similar to that system. As required by Rule 9J-5.0055, Florida Administrative Code, the goals, objectives, and policies adopted in the Amendments provide many meaningful and predictable standards for development. The goals, objectives, and policies establish a county-wide LOS, adopt a capital facilities program, establish the geographic area which are served by Public Schools, establish which Public Schools will be considered in determining whether the adopted LOS has been met, adopt by reference student generation rates, provide that Public School concurrency will be imposed at plat review, and establish mitigation standards. While there is no guarantee that a particular developer will be able to meet Public Schools concurrency, a developer will know that his or her project will be subject to concurrency review at plat review, and no further concurrency review will take place thereafter. There are a number of matters which are not sufficiently described or provided for in the Public School Facilities Element. They are discussed, infra. Most, if not all, of the deficiencies are caused in large part by the unique and distinct duties and responsibilities of the Broward County Commission and the School Board. Because of those duties and responsibilities, the Broward County Commission has attempted to adopt a practical means of imposing Public Schools concurrency. The Act, however, does not allow the provisions applicable to Public Schools concurrency to be adhered to only if it is practical. Petitioners have attacked a number of the objectives and policies adopted as part of the Public School Facilities Element. In particular, Petitioners have challenged Policies 04.01.02, 04.02.03, 04.02.04, 04.02.05, 04.03.01, and 04.03.07(f) of the Public School Facilities Element. Petitioners have also challenged Objective 05.03.00 of the Public School Facilities Element. Policy 04.01.02 of the Public School Facilities Element does not specifically state which version of the School Board's Capital Facilities Program is being incorporated, when the program will be changed, how changes will be made, or when changes will be effective. These details are, however, apparent, from the language of the policy and the law governing Capital Facilities Programs. Policy 04.02.03 of the Public School Facilities Element does not include a specific definition of the terms "anticipated capacity." Based upon the use of the term "capacity" in describing the LOS standards adopted for Public Schools concurrency, it is apparent what is intended by these terms. Policy 04.02.03 of the Public School Facilities Element references and incorporates information which is part of the School Board's capital budget. There is no requirement specifically included in the Plan that the adoption of the School Board's capital budget be subject to public participation or Department compliance review. Policy 04.02.04 of the Public School Facilities Element does not specify the edition or date of the "student generation rates" referenced therein. Student generation rates are, however, technical standards, based upon surveys, and will be contained within Broward County's Land Development Regulations. They will be subject to public hearing. The rates are used in a manner which is similar to references for transportation concurrency in the Plan to highway capacity methodologies endorsed by the County Metropolitan Planning Organization. Policy 04.02.05 of the Public School Facilities Element establishes mitigation standards where a proposed development will impact a school that is not meeting the adopted county-wide LOS standard for that school. The policy specifically identifies mitigation alternatives which are intended to ensure that school capacity will be available at the time the impacts of development occur. While the mitigation standards all relate to actions which a developer may be required to take and not other remedies, they are sufficiently described. The Amendments include the following objective and policies governing the implementation of Public Schools concurrency by municipalities or Broward County at site plan review: Objective Subsequent to adoption of the Broward County Public School Facilities Element, municipalities within Broward County and the unincorporated area may only implement a public school concurrency management system, which will be effective at the time of municipal and unincorporated area site plan review, in accordance with established criteria and as specified in an interlocal agreement between the local government and the School Board. Policies The School Board shall consider approval of a municipal or unincorporated area concurrency management system at site plan review if the following criteria are met: The critical nature of public school overcrowding in the schools that serve the municipality exceeds that in other parts of the county; and A substantial number of residential units remain to be developed within already approved plats and/or there are a substantial number of potentially unbuilt residential units in unplatted vacant land within the municipality or the unincorporated areas which would require the construction of new public schools or classrooms within existing public schools; and/or The municipality or unincorporated area is proposing other innovative measures to address the provision of student stations. Municipalities or the unincorporated area that elect to implement a public school concurrency determination at site plan review must adhere to the following criteria: Pubic school(s) affected must be physically located within the jurisdictional boundaries of the municipality or the unincorporated area or have 50% or more of their student membership residing in the municipality or the unincorporated area. The level of service standard implemented must be the level of service standard adopted by the School Board. The concurrency service districts must be the effective service districts contained in the adopted Broward County Comprehensive Plan, Public School Facilities Element. A formal coordination mechanism with the School Board must be included in the interlocal agreement. The property has not undergone a concurrency determination for public schools at platting by Broward County. Such other criteria as the School Board may deem necessary and appropriate. To the extent that the "established criteria" and criteria established in the "interlocal agreement" are determined in this Recommended Order to be inconsistent with the Act, so too is Objective 04.03.00 of the Public School Facilities Element. There are several terms used in Policy 04.03.01 of the Public School Facilities Element that are not defined. Those terms, to the extent that they require further explanation or definition than is provided in the Amendments can, however, be provided in the Land Development Regulations. Policy 04.03.02(f) of the Public School Facilities Element provides for the consideration of "other criteria." No definition of “other criteria” is included in the Public School Facilities Element or any other part of the Amendments. The Policy also allows the School Board, as opposed to the Broward County Commission, to decide what constitutes "other criteria" outside of the Plan and the Act. Amendments to the Land Use Plan. The Amendments include textual amendments to the Land Use Plan. In particular, Policy 08.07.02 was amended and new Policies 08.07.08 through 08.07.13 were added to the Land Use Plan. All of these modifications to the Land Use Plan pertain to Public Schools concurrency. Newly adopted Policy 08.07.11 of the Land Use Plan provides for the implementation of Public Schools concurrency: Broward County shall adopt a county wide [sic] concurrency management system for public schools to be implemented at the time of Broward County plat review consistent with the Broward County Comprehensive Plan, Public School Facilities Element, the School Board adopted level of service standards, and the financially feasible Public School Capital Facilities Program. Like the Public School Facilities Element, Policy 08.07.11 of the Land Use Plan contemplates that many details of the concurrency management system for Public Schools will be adopted outside the Plan. Those details are to be adopted in land development regulations promulgated by the Broward County Commission at public hearing. The Capital Improvements Element. 1137. Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts Public Schools concurrency must establish LOS standards for Public Schools and adopt a "financially feasible public school capital facilities program . . . that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan." The LOS standards and the capital facilities program must be included in the capital improvements element of the local government's comprehensive plan. The LOS standards and the capital facilities program are required to be adopted with the agreement of the school board. Broward County attempted to meet the requirements of Section 163.3180(1)(b), Florida Statutes, by adding a new Policy 29 to Objective 7 of the Capital Improvements Element of the Plan: The School Board's adopted financially feasible Public School Capital Facilities Program and the Level of Service Standards delineated in Figure PS-20 of the Public School Facilities Element are adopted into the Broward County Capital Improvements Element by reference. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process. The LOS Standards Adopted by Broward County. Establishing a LOS is a basic land-use planning concept. A LOS standard is defined in Rule 9J-5.003(65), Florida Administrative Code, as: an indicator of the extent or degree of service provided by, or proposed to be provided by a facility based on and related to the operational characteristics of the facility. Level of service shall indicate the capacity per unit of demand for each public facility. Pursuant to the Implementation Agreement, the School Board agreed to include a "[d]iscussion and determination of a level of service for public schools including an analysis of the impact and feasibility of making public schools a public facility subject to review for concurrency" in the Public School Facilities Element. The School Board determined the appropriate LOS standards, recommended them to the Broward County Commission, and the Broward County Commission adopted the LOS standards as part of the Public School Facilities Element. The LOS standards were included in PS-20 of the Public School Facilities Element. PS-20 was adopted through Policy 04.01.01 of the Public School Facilities Element. The adopted LOS standards were incorporated by reference through the adoption of Policy 29 of the Capital Improvements Element. In determining what LOS to recommend, the School Board considered a number of methods of measuring the Public Schools which would be necessary to meet the increase in students caused by development and growth in Broward County. Ultimately, the School Board decided to apply a utilization factor to the capacity of each individual public school in Broward County as determined by the Florida Inventory of Schoolhouses (hereinafter referred to as the "FISH Capacity"). FISH Capacity is the capacity of every individual public school in Florida as annually determined by the Department of Education. The School Board decided to adopt three LOS standards: one LOS standard each for elementary, middle, and high schools. For each type of school, a "Desired Performance Level"; an "Effective Performance Level"; and a "Critical School Level," Levels A, B, and C, respectively, were developed. For example, for an elementary school, the Level A, Desired Performance Level, LOS standard established in the Public School Facilities Element, is a "[u]tilization factor of less than or equal to 1.3." This means that, if a particular elementary school is determined to have a FISH capacity of 900 students, its Level A LOS, or Desired Performance Level, is 1,170 students or less (900 X 1.3 = 1,170). Level A LOS is described in the Supporting Documents for the Amendments as "the membership to FISH capacity that results in a utilization factor below which the school can function effectively without straining core facilities and other school resources." Level B LOS, the Effective Performance Level, is described in the Supporting Documents as one where the following occurs: overcrowding at a school becomes problematic and requires the addition of many portable classrooms; core facilities are stretched beyond a comfortable and normal working status . . . ; every available room is utilized for classroom space; and art and music programs at elementary schools may have to "float" or not have an assigned classroom. The severity of over crowding depends upon the ability to locate portable classrooms and the space available on site. Play fields and athletic areas may start to be affected. . . . Level C LOS, the Critical School Level, is described in the Supporting Documents as follows: When this level occurs, lunches are scheduled shortly after breakfast, many portables are on site, all rooms are utilized for classes including offices, conference rooms and resource rooms. In elementary school, the music, art and science programs "float" and in middle and high schools, many teachers move from room to room using classrooms that are not in use by the assigned teacher. Play fields or athletic fields are usually the location of portable classrooms and consequently cannot be fully utilized. In general, the core facilities are servicing many more students than they were designed for and students may experience delays or the inability to use certain aspects of the facility when they normally would. . . . The School Board recommended that the Broward County Commission adopt Level B LOS as the county-wide LOS for elementary, middle, and high schools. The Broward County Commission accepted the School Board's recommendation and adopted Policy 04.01.01 of the Public School Facilities Element: The School Board and Broward County shall adopt level of service standard B, delineated in Figure PS-20, Public School Facilities Element, as the county wide level of service standard for public school facilities in Broward County. Level B LOS is consistent with, and Level C LOS is nearly identical to, the standards for overcrowded schools adopted by the School Board in 1994 as School Board Policy 5000 (hereinafter referred to as "Policy 5000"). Pursuant to Policy 5000, if a school's capacity reaches a Level C LOS, a special review process is undertaken to develop student enrollment options such as double sessions, year-round education programming, attendance zone boundary changes, and other alternatives. Policy 5000 is not, however, a part of the Plan. Nor is it subject to the Act. Level B LOS is not a "high" standard. Nor is it one that the School Board would ultimately desire. It is, however, an adequate LOS. Level B LOS for Elementary Schools Level B LOS for elementary schools is defined as "[u]tilization factor greater than 1.3 and less than Level C." The Level C LOS for elementary schools is defined as "[u]tilization factor of 1.75 or greater or exceeds 1200 students (1400 for elementary schools with a capacity in excess of 900 students)." Applying the elementary school Level B LOS, to an elementary school with a FISH capacity of 900 students, the elementary school will be considered to have achieved LOS B if the number of students at the school is: Equal to or greater than its FISH Capacity (900) x 1.3 = 1170 but is less than FISH Capacity (900) x 1.75 = 1,575 or a maximum of 1200 students For an elementary school with a FISH capacity of more than 900 students, whether the school will be considered to have achieved LOS B is determined in the same manner, except that the maximum number of students is 1400 students instead of 1200. Pursuant to the adopted Level B LOS, the maximum capacity for an elementary school with a FISH Capacity of 900 or less students can be expressed mathematically as follows: (FISH Capacity x 1.75) - 1 [Maximum of 1200] Pursuant to the adopted Level B LOS, the maximum capacity for an elementary school with a FISH Capacity of more than 900 students can be expressed mathematically as follows: (FISH Capacity x 1.75) - 1 (Maximum of 1400] Level B LOS for Middle Schools Level B LOS for middle schools is defined as "[u]tilization factor greater than 1.2 and less than Level C." The Level C LOS for middle schools is defined as "[u]tilization factor of 1.4 or greater or exceeds 1700 students (2000 for middle schools with a capacity in excess of 1700 students)." Pursuant to the adopted Level B LOS, the maximum capacity for a middle school with a FISH Capacity of 1700 or less students can be expressed mathematically as follows: (FISH Capacity x 1.4) - 1 [Maximum of 1700] Pursuant to the adopted Level B LOS, the maximum capacity for a middle school with a FISH Capacity of more than 1700 students can be expressed mathematically as follows: (FISH Capacity x 1.4) - 1 (Maximum of 2000]. Level B LOS for High Schools Level B LOS for high schools is defined as "[u]tilization factor greater than 1.2 and less than Level C." The Level C LOS for high schools is defined as "[u]tilization factor of 1.2 or greater or exceeds 2500 students (3200 for high schools with a capacity in excess of 2500 students)." Pursuant to the adopted Level B LOS, the maximum capacity for a high school with a FISH Capacity of 2500 or less students can be expressed mathematically as follows: (FISH Capacity x 1.5) - 1 [Maximum of 2500] Pursuant to the adopted Level B LOS, the maximum capacity for a high school with a FISH Capacity of more than 2500 students can be expressed mathematically as follows: (FISH Capacity x 1.5) - 1 (Maximum of 3200]. The Addition of FISH Capacity May Not Increase a School's Level of Service Pursuant to the adopted LOS standards, the addition of FISH capacity to a particular school in Broward County may not result in any increase in that school's ability to meet Level B LOS. This is true of elementary, middle, and high schools. This result is caused by the adoption in the Level B LOS standard of the maximum capacity in the Level C LOS standards. For elementary schools, elementary schools with a FISH capacity of between 686 and 899, an increase in FISH capacity will have no impact on its LOS. This phenomena can be illustrated by an example provided in Petitioners' proposed order at proposed finding of fact 47: For example, assume hypothetical Elementary School "A" has a FISH capacity of 749. The LOS B capacity of Elementary School "A" is 1200 because 749 x 1.75 = 1311 and, thus, exceeds the absolute maximum of 1200 students for an elementary school with a FISH capacity of 900 students or less. Adding ten seats of FISH capacity to Elementary School "A" results in no change in the LOS B capacity of that school because 759 x 1.75 - 1328 and, thus, it still exceeds 1200 students without reaching the 900 capacity that would increase the maximum LOS B capacity to 1400 students. More than 151 seats of FISH capacity would have to be added to hypothetical Elementary School "A" before a single seat of LOS B capacity would be added. Moreover, no LOS B capacity can ever be added to elementary schools with FISH capacity in excess of 900 students since 900 x 1.75 = 1575 and the absolute maximum LOS B capacity of elementary schools with a FISH capacity in excess of 900 students is 1400. A similar example of this phenomena applied to middle schools is described in proposed finding of fact 48 of Petitioners' proposed order. The phenomena also applies to high schools. The Public Schools Concurrency Service Areas. In order to determine the impact of a proposed development on existing LOS standards of Public Schools, it must be determined what Public Schools will be considered to be impacted by the proposed development. To make this determination, a concurrency service area must be established. The Broward County Commission determined that the concurrency service area for Public Schools should be each school's student attendance area established by the School Board pursuant to Section 230.23(4), Florida Statutes. The geographic service area for purposes of Public Schools concurrency (hereinafter referred to as the "Service District"), adopted by the Broward County Commission is described in Policy 04.02.01 of the Public School Facilities Element: The service districts for public school concurrency determination and implementation shall be the School Board's effective school boundary areas and assigned usage for each school, as adopted annually by the School Board. Section 230.23(4), Florida Statutes, requires that the School Board annually approve student attendance areas for the upcoming school year. Students are generally assigned to a school within the attendance area in which the student lives. It is these annually approved student attendance areas that were adopted by the Broward County Commission as the Service Districts for Public School concurrency. Although student attendance areas for the 1994-95 and 1995-96 school years were included in the Supporting Documents for the Amendments, no Service Districts for future years to which Public Schools concurrency is imposed by the Amendments were adopted. Nor do the Amendments contemplate or require the inclusion of Service Districts adopted in the future to be included as part of the Plan. The Amendments also fail to provide goals, objectives, or policies that control how Service Districts are to be established. Decisions concerning the establishment of Service Districts are left in the sole discretion of the School Board. The manner in which Service Districts are drawn by the School Board will not impact a particular school's LOS. It will, however, have a direct impact on the determination of whether a particular school is meeting its established LOS standard. Therefore, if a Service District is drawn in such a way that a particular school is not achieving the applicable Level B LOS, a proposed development in the Service District of that school will be negatively impacted. Due to the fact that Service Districts are not included in the Amendments, but are for the School Board to determine annually through its determination of attendance areas, it is not possible to determine specifically which individual schools will exceed Level B LOS beyond the most immediate school year. As a result, a Service District in which a proposed development is to be located may be below Level B LOS in one year, but due to a change in the Service District, may meet Level B LOS in other years. Thus, whether a proposed development will be required to meet Public Schools concurrency will vary from year to year based upon events outside the Plan. Although school attendance is projected by the School Board five years into the future, the factors which the School Board must consider in drawing attendance areas in Broward County are varied and do not promote accurate projections of Service Districts for future years. Factors which the School Board considers each year include immigration patterns, weather events, and the type and location of housing production. Issues related to desegregation, enrollment capping, double sessions, multi- track year-round education programs, flexible scheduling, busing, individual student transfers, magnet schools, variable grade- mixed schools, special centers, and charter schools also impact how attendance areas are drawn. It is apparent from Policy 5000 that one important consideration in the designating of attendance areas is the physical capacity of each school. The Level C LOS standards set out in the Amendments is also reflected in Policy 5000. The School Board is, therefore, committed to a consideration of school capacity in establishing attendance areas. School attendance area decisions are also based upon a number of other policies established in Policy 5000. Policy 5000 sets out guidelines for the establishing of attendance areas, including maintaining neighborhood elementary schools, the continual over-utilization or under-utilization of particular facilities, and the racial and ethnic backgrounds of students. The School Board must consider and weigh several competing goals when establishing attendance areas. Therefore, those competing goals may outweigh any effort the School Board may otherwise have been able to make to avoid drawing an attendance area in such a way that a Service District in which there are schools not meeting Level B LOS is created. Construction of new school facilities also affects how attendance areas are established. In 1995 the School Board made 92 boundary changes, partly as a result of a change in desegregation requirements imposed by the courts. The School Board's annual determination of attendance areas is made at School Board public meetings, after public notice. Obviously, the determination of attendance areas is a function for the School Board to fulfill. It is not a function which the School Board wishes to relinquish, even if it could. It can also be assumed that the School Board will consider school capacity in drawing attendance areas. The determination of attendance areas and, thus, the determination of Service Districts pursuant to the Public School Facilities Element, is not, however, subject to review pursuant to the Act. It is, therefore, a factor which directly impacts Public Schools concurrency decisions that is determined outside of the provisions of the Act. The Amendments simply fail to include any guidance as to how Service Districts are to be drawn. The decision is left to the School Board. The Plan fails to establish guidelines for how the School Board will draw the Service Districts. Public School Capital Facilities Program. In order to ensure implementation of the adopted LOS standards, Section 163.3180(1)(b)1, Florida Statutes, requires the adoption of a "financially feasible public school capital facilities program" (hereinafter referred to as the "Capital Facilities Program"). The Capital Facilities Program must be adopted as part of the Capital Improvements Element. The Capital Facilities Program is required to "provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan." Finally, the Capital Improvements Program must be established "in conjunction with" the school board. The Implementation Agreement provided that the School Board would prepare the required Capital Facilities Program. The School Board did so and transmitted the program to the Broward County Commission, along with a draft of the Public School Facilities Element, on November 14, 1995. The draft Capital Facilities Program was for the fiscal years 1995-96 through 1999-00. The Broward County Commission reviewed and accepted the draft Capital Facilities Program. The Capital Facilities Program prepared and recommended by the School Board was adopted by the Broward County Commission as part of the Capital Improvements Element by the addition of Policy 29 to Objective 7. Rather than being specifically included in the Capital Improvements Element, the Capital Facilities Program was adopted by reference. The Capital Facilities Program was also adopted by reference in Policy 04.01.02 of the Public School Facilities Element of the Plan: The School Board's adopted financially feasible Public School Capital Facilities Program is adopted into the Capital Improvements Element of the Broward County Comprehensive Plan by reference, and in the event of a natural disaster, the School Board may suspend the financially feasible Public School Capital Facilities Program as necessary. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process. Policy 04.01.03 of the Public School Facilities Element provides that the "School Board will annually revise and adopt a capital budget consistent with the financially feasible Public School Capital Facilities Program to adopt the level of service standards." At the time of its adoption, the Capital Facilities Program consisted of three figures: Figures PS-16, PS-17, and PS-18. These figures are titled "Estimated Revenue Fiscal Years 1996/2000"; "Tentative Appropriations Fiscal Years 1996/2000"; and "New School Funding Schedule Fiscal Years 1995-1996 through 1999-00." The Capital Facilities Program was subsequently adopted by the School Board on November 21, 1995, as part of a five-year capital outlay plan for the School Board's 1995-96 through 1999-00 fiscal years. The School Board's fiscal year runs from July 1 to June 30. Adopting a five-year capital outlay plan during the first fiscal year of the plan is consistent with Chapter 230, Florida Statutes, and prior School Board practice. At the time the Capital Facilities Program was adopted as part of the Amendments, the School Board had not adopted the five-year capital outlay plan for the period 1996-97 through 2000-01. Therefore, the Broward County Commission adopted the Capital Facilities Program for the period 1995-96 through 1999- 00. As a consequence of the fact that the program was adopted after the start of the 1996-97 fiscal year, the first full year of the Capital Facilities Program is the fiscal year 1997-98 and the Capital Facilities Program only contains three full fiscal years. Financial Feasibility. Revenues for the Capital Facilities Program are projected to come form several sources. Those sources were determined pursuant to professionally accepted school budgeting practices. The Capital Facilities Program revenue projections are based, in part, on the use of the maximum property millage available under the law for school capital needs. Estimates of revenue are based upon conservative, historical data, and other reasonably available information. Comparing projected revenues with projected expenditures, the Capital Facilities Program is financially feasible from a school budgeting perspective. The projected revenues are consistent with Chapter 9J-5, Florida Administrative Code, to the extent that they are revenues that will come from assured sources of revenue. Section 163.3180(1)(b)1, Florida Statutes, however, requires that the Capital Facilities Program include reasonable financial projections which will ensure that the Public Schools will be provided at the adopted LOS standards of the Public School Facilities Element. Thus, the Capital Facilities Program must project revenues (from assured sources) and expenditures which will result in the accomplishment of the Public School Facilities Element. The primary goal of the Public School Facilities Element is stated in Goal 4. That goal is to "[e]nsure that public school facilities will be available for current and future public school students when needed in accordance with the [Capital Facilities Program] and the adopted [LOS]." Based upon this goal, the Capital Facilities Program is required to include projections as to how "current and future" students will be provided Public Schools at Level B LOS. Through the fifth school year of the Capital Facilities Program, 1999-00, it is projected that there will be an additional 42,611 students in Broward County. In addition to the increase in students through the 1999-00 school year, prior to the commencement of the planning period, 1995-96, a number of schools in Broward County were already operating at below Level B LOS. During 1994 and 1995 there were a number of schools in Broward County that were not at Level B LOS. Tables III-1(A) and III-1(B) of the Supporting Documents. Every September the School Board surveys enrollment at all schools on the twentieth day after the first day of the school year. The results of the survey are produced on a Twentieth Day Membership Report. For 1994, the report indicated there were 34 schools that were below Level B LOS. Table III- 1(A). This amounted to a total deficit of 5,449 student stations out of a total school population of 198,690 students. The results of the survey for 1995 indicated that there were 26 schools that were below Level B LOS. Table III- 1(B). This amounted to a total deficit of 4,007 student stations out of a total school population of 207,345 students. The Service Districts in which the overcrowded schools for 1994 and 1995 were located are shown on FHBA Exhibits 6A-C. The Service Districts with overcrowded schools make up the majority of the geographic area of Broward County. On an aggregate, county-wide basis, there was an excess of 32,689 student stations in 1995. The total excess stations do not take into consideration the three types of schools (elementary, middle, and high). Excess capacity on an aggregate, county-wide basis, should continue to exists through 1999-00. It is projected in the Capital Facilities Program that the School Board will increase student stations by constructing additional new schools and making renovations, additions, and replacements to existing schools. The funding of new schools is set out on Figure PS-18 of the Supporting Documents. Funding of $220 million in capitalized cost for construction of twenty-two new schools is projected. It is projected that the total increase in the number of student stations as a result of new schools will be 29,014 stations. The total increase in student stations projected as a result of modifications to existing schools will be 2,132 elementary school stations and 1,079 middle school stations. The total projected new stations is 32,225 stations. Some of the new schools to be constructed, however, will not be available for use by the end of the five-year period of the Capital Facilities Program. They will not be available until 2002-03. Without those schools, the total new student stations from new schools will be 19,227 stations. Combined with the new stations from modifications to existing schools results in the addition of a total of 22,438 stations. If all of the 32,225 new stations are considered plus the excess capacity on an aggregate, county-wide basis (32,689 stations or more), there MAY be sufficient Public Schools available in Broward County to meet current and future student need for facilities. The Capital Facilities Program adopted by the Broward County Commission does not, however, ensure that there WILL be sufficient capacity. The Capital Facilities Program does not specifically provide that aggregate, county-wide excess capacity is to be utilized to meet current or future need for student stations necessary to achieve Level B LOS. Nor do the Amendments require that aggregate, county-wide excess capacity must be utilized to reduce current or future student station need. That decision is left totally to the discretion of the School Board, which must consider many factors in establishing student enrollment districts. While it is true that the School Board "may" modify Service Districts to redistribute student populations, and is even required by Policy 5000 to take into consideration overcrowding, the School Board is not required to do so. Therefore, there is no assurance that excess capacity which may exist will be available. The lack of any requirement that excess capacity must be used to reduce overcrowding is of greater significance when the fact that the School Board has not used excess county-wide capacity in past years to eliminate overcrowded schools is taken into account. Additionally, the existence of an aggregate, county- wide excess does not mean that deficits can be eliminated due to the fact that the LOS standards are applied to three different types of schools: elementary, middle, and high. Therefore, if the aggregate excess capacity consists of all high school stations, the School Board may not be able to eliminate a deficit at an elementary or middle school. While it is true that the School Board has the flexibility to modify school attendance at the different type schools by reconfiguring the grades considered to be elementary, middle and/or high school, or through other measures, nothing in the Capital Facilities Program or the Amendments as a whole ensure that the School Board will do so. The Capital Facilities Program fails to provide projections that will ensure that Level B LOS is met during the program period. The program does not provide for sufficient new stations to meet the need of future increases in students and to provide for how existing deficiencies will be eliminated. The Supporting Documents do provide some information concerning the reduction of existing overcrowded schools. Table III-15 of the Supporting Documents. Table III-15 lists the 34 schools that were overcrowded in 1994. Columns titled "New School Relief" and "Estimated Year Open" are printed next to the list of overcrowded schools. For six of the overcrowded schools the New School Relief listed is "to be determined." Therefore, according to the Supporting Documents, there is not yet a plan for how to eliminate the deficit in the LOS for at least 6 of the schools which were overcrowded in 1994. The reduction in overcrowded schools in 1995 does not alleviate this problem. The 1995 list contains five more overcrowded schools for which no specific remedy is provided because they were not on the 1994 list. Additionally, how “New School Relief” will impact LOS standards at the overcrowded schools is in no way explained in the Table or the Amendments. Intergovernmental Coordination. The second criterion specified in the Act for imposing Public Schools concurrency which a local government must meet is to satisfy the requirements of Section 163.3177(6)(h)1 and 2, Florida Statutes (Supp. 1996). The evidence failed to prove that the Amendments do not satisfy the requirements of Section 163.3177(6)(h)1, Florida Statutes. At issue in these cases is whether the Amendments satisfy the requirements of Section 163.3177(6)(h)2, Florida Statutes (Supp. 1996): 2. The intergovernmental coordination element shall further state principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan with the plans of school boards . . . providing facilities and services but not having regulatory authority over the use of land. In addition, the intergovernmental coordination element shall describe joint processes for collaborative planning and decisionmaking on population projections and public school siting, the location and extension of public facilities subject to concurrency . . . . Within 1 year of adopting their intergovernmental coordination elements, each county, all the municipalities within that county, the district school board, and any unit of local government service provider in that county shall establish by interlocal or other formal agreement executed by all affected entities, the joint processes described in this subparagraph consistent with their adopted intergovernmental coordination elements. Broward County's Intergovernmental Coordination Element is included in Volume 2 of the Plan, beginning at page 15-1. The following objectives and policies, which existed before the adoption of the Amendments, are pertinent to these cases: Objective 15.1. Coordinate the Broward County Comprehensive Plan with the plans of the School Board of Broward County as well as other units of local government providing services to the Unincorporated Area but not having regulatory authority over the use of land. 3(b)(1) Policy 15.1.1. The Department of Strategic Planning and Growth Management shall continue to utilize the Broward County League of Cities Technical Advisory Committee (TAC) to coordinate planning activities mandated by the various elements of the Comprehensive Plan with local governments, the School Board of Broward County, and other governmental units providing services but not having regulatory authority over the use of land. 3(c)(1) The Board of County Commissioners adopted Ordinance 76-4 creating Chapter 5. Article VII, "Area Planning Council," Broward County Code of Ordinances, Section 5-118, "Technical advisory committee." The membership of the TAC consists of the 28 municipalities, the School Board of Broward County, the Broward County Planning Council, and the Broward County Board of County Commissioners. The Broward County League of Cities provides the staff services to the TAC. . . . . Objective 15.2. Utilize coordinating mechanisms to ensure that proposed developments and their potential impacts on adjacent local governments, the School Board of Broward County, the Region, and the State are addressed. 3(b)(2) . . . . Policy 15.2.2. The Development Management Division shall continue to rely upon the Development Review Committee, established pursuant to Chapter 5. Article IX, "Broward County Land Development Code," Broward County Code of Ordinances, to provide a technical review of the future impact of a proposed plat (county-wide) or site plan (Unincorporated Area) on the facilities and services provided by the local government within which it is located as well as those of adjacent local governments, if any. 3(c)(d) . . . . Policy 15.2.5. The Comprehensive and Neighborhood Planning Division shall, during the five-year evaluation and appraisal report preparation process, seek the input of the School Board of Broward County and local governments whose borders are adjacent to the Unincorporated Area regarding changes which may be considered to promote compatibility of land uses and ensure the availability of public facilities and services. 3(c)(7) . . . . Policy 15.2.7. The Department of Strategic Planning and Growth Management, in its capacity as Local Planning Agency, shall coordinate its planning activities with the 28 municipalities, the School Board of Broward County, Port Everglades Authority, and several independent special districts, including all those agencies required to submit public facilities reports to Broward County pursuant to Chapter 189, Florida Statutes. 3(c)(1) The foregoing provisions establish intergovernmental coordination requirements and the procedures to carry out those requirements. At the time the provisions were created Public Schools concurrency was not required by the Plan. Therefore, the foregoing provisions do not specifically "describe joint processes for collaborative planning and decisionmaking on population projections and public school siting, the location and extension of public facilities subject to concurrency" (hereinafter referred to as the "Joint Processes for Collaborative Planning and Decisionmaking") as required by Section 163.3177(6)(h)2, Florida Statutes, directly relating to Public Schools concurrency. In addition to the provisions of the Intergovernmental Coordination Element, there are a number of policies included in the Land Use Plan which establish intergovernmental coordination requirements and the procedures to carry out those requirements. Those polices include Policies 08.07.01 through 08.07.06 of the Land Use Plan. They are hereby incorporated by reference into this Recommended Order. Although Policies 08.07.01 through 08.07.06 deal with intergovernmental coordination, they are not a part of the Intergovernmental Coordination Element. More importantly, they do not specifically "describe" the Joint Processes for Collaborative Planning and Decisionmaking directly relating to Public Schools concurrency. When originally transmitted to the Department for its initial review, the Amendments did not include an amendment to the Intergovernmental Coordination Element. The Amendments did include amendments to the Land Use Plan concerning intergovernmental coordination. See Policies 08.07.02, and 08.07.08 through 08.01.12 of the Land Use Plan. The Public School Facilities Element also include provisions providing for intergovernmental coordination. See Goal 1.00.00, Objectives 01.01.00, 01.01.01, 01.01.02, and 01.02.00; and Policies 01.02.01 through 01.02.03, 01.02.05, 03.01.01, and 03.03.03 of the Public School Facilities Element. The amendments to the Land Use Plan and the provisions of the Public School Facilities Element do not, however, specifically "describe" the Joint Processes for Collaborative Planning and Decisionmaking directly relating to Public Schools concurrency. The Department's second letter of July 19, 1996, to the Broward County Commission amended the ORC to object to the Amendments for failing to "satisfy the requirements for intergovernmental coordination set forth in s. 163.3177(6)(h)2, F.S." This objection was based upon the fact that the existing provisions of the Intergovernmental Coordination Element of the Plan and the Land Use Plan, as amended, did not contain a "description of the processes for collaborative planning and decision making on population projections and public school siting" required by Section 163.3177(6)(h)2, Florida Statutes (Supp. 1996). In response to the Department’s objection to the lack of compliance with Section 163.3177(6)(h)2, Florida Statutes, the Broward County Commission adopted the following new policy as part of the Intergovernmental Coordination Element: Policy 3: Broward County shall establish by interlocal agreement with the Broward County School Board joint processes for collaborative planning and decision making on population projections and public school siting consistent with Chapter 163.3177(6)(h)2 F.S., Chapter 235 F.S., the Public School Facilities Element of the Broward County Comprehensive Plan and Policy 08.07.06 of the Broward County Land Use Plan. The effect of Policy 3 is simply to provide that the Joint Processes for Collaborative Planning and Decisionmaking required by Section 163.3177(6)(h)2, Florida Statutes, will be included in an interlocal agreement and not the Intergovernmental Coordination Element. The new policy also suggests that the Joint Processes for Collaborative Planning and Decisionmaking are not already included in the Plan, as argued by Respondents and the School Board. Otherwise, why provide that they will be adopted elsewhere? Broward County and the School Board entered into an interlocal agreement on September 16, 1996 (hereinafter referred to as the "Interlocal Agreement"). The Interlocal Agreement specifically describes the manner in which population projections will be obtained and the processes for public school siting. The Interlocal Agreement does not, however, constitute a part of the Intergovernmental Coordination Element or any other part of the Plan. Newly adopted Policy 3 also contemplates that the interlocal agreement contemplated therein will be entered into between Broward County and the School Board. It does not contemplate that the approximately twenty-eight municipalities located within Broward County will also be parties to the interlocal agreement. This interpretation of Policy 3 is supported by the Interlocal Agreement actually entered into. Only Broward County and the School Board are parties to the agreement. AA. The Interlocal Agreement. At the time that the Amendments were first transmitted to the Department for review, no interlocal agreement had been entered into. The ORC included the following objection to the Amendments concerning the lack of an interlocal agreement: 2. Objection: The School Board and Broward County have not entered into an interlocal agreement which addresses joint processes for collaborative planning and decision making on population projections and public school siting, the location and extension of public facilities subject to concurrency, and siting facilities subject to concurrency. . . . The Department recommended that such an interlocal agreement be entered into in order for the Amendments to be found "in compliance." In response to the Department's objection, the Interlocal Agreement was entered into on September 11, 1996. The Interlocal Agreement was, however, determined by the Department to be defective. Therefore, the Department concluded that the Amendments were not "in compliance." In particular, the Department found the that Amendments were not in compliance because of paragraph 3.7 a. of the Interlocal Agreement: AGREEMENT TO HAVE NO IMPACT ON SCHOOL BOARD OBLIGATIONS AND DUTIES The implementation of this Agreement shall in no way obligate the SCHOOL BOARD nor infringe upon the SCHOOL BOARD'S constitutional duties or other requirements which are mandated by law. This includes, but is not limited to: setting public school boundary maps; selecting and acquiring public school sites; planning, designing, and constructing public school facilities; designing educational curriculum; developing procedures and requirements for public school building operations; setting personnel policies; making hiring decisions; setting the level of service standards for public school facilities; and approving the public school capital facilities program. The Department informed Broward County of its determination that the Interlocal Agreement was defective by letter dated October 24, 1996. The Department explained that its determination was based upon the Department's conclusion that paragraph 3.7 a. allows the School Board to unilaterally amend or terminate the Public School Facilities Element. In addition, Condition 3.7 a. implies that the School Board does not have to implement school concurrency. Section 163.3177(6)(h)2, Florida Statutes (F.S.), specifically requires an interlocal agreement between the County and School Board which establishes joint processes for collaborative planning and decision making on population projections and public school siting as well as the location and extension of public facilities subject to concurrency. Condition 3.7 a., which states that the School Board can unilaterally set the level of service standards and approve the public school capital facilities program and that the School Board does not have to commit to school concurrency implementation, is not consistent with Section 163.3177(6)(h)2, F.S. . . . The Department recommended that Broward County and the School Board "delete this condition from the Interlocal Agreement" in order to bring the Amendments into compliance. In response to the Department's October 24, 1996, letter, Broward County and the School Board amended the Interlocal Agreement on November 14, 1996, to delete paragraph 3.7 a. The Interlocal Agreement continues to provide, however, that the agreement may be "terminated by the unilateral action of any one of the parties to the Agreement" after giving notice and an opportunity for the other party to be publicly heard on the decision to terminate the agreement. Paragraph 3.2 of the Interlocal Agreement. The Department did not object to this provision. The Joint Processes for Collaborative Planning and Decisionmaking required by Section 163.3177(6)(h)2, Florida Statutes, are included in the Interlocal Agreement. The Interlocal Agreement is not, however, a part of the Intergovernmental Coordination Element or any other element of the Plan. Additionally, even if the Interlocal Agreement were incorporated into the Intergovernmental Coordination Element by reference, either party may terminate the Interlocal Agreement pursuant to paragraph 3.2 of the Interlocal Agreement without plan amendment review pursuant to the Act. BB. Data and Analysis. The data and analysis in support of the Amendments prepared by the Broward County Commission and School Board is contained in the Supporting Documents, Volume II of the Public School Facilities Element. The data and analysis relied upon in adopting the Amendments suffer from the same general deficiencies as the Amendments themselves. Petitioners have offered a number of findings of fact demonstrating areas where deficits in reaching LOS standards may result through the school year 1999-00. Those findings of fact are correct, but unnecessary to this determination. Those findings of fact only support the ultimate finding of this Recommended Order that the Capital Facilities Program does not demonstrate that the LOS standards adopted by the Broward County Commission will be achieved. CC. Consistency with the State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida. Petitioners failed to present any evidence concerning the consistency of the Amendments with the state comprehensive plan set out in Chapter 187, Florida Statutes. The South Florida Regional Planning Council found the Amendments to be consistent with the "Strategic Regional Policy Plan for South Florida." Petitioners failed to present any evidence concerning the consistency of the Amendments with the Strategic Regional Policy Plan for South Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs find, consistent with this Recommended Order, the Amendments not in compliance and submit the matter to the Administration Commission for the entry of a Final Order. DONE AND ENTERED this 8th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1997. COPIES FURNISHED: Mark D. Solov, Esquire Sterns, Weaver, Miller, Weissler, Alhadeff, and Sitterson, P.A. Museum Tower, Suite 2400 150 West Flagler Street Miami, Florida 33130 John W. Little, III, Esquire Jonathan Sjostrom, Esquire Jacob D. Varn, Esquire Steel, Hector, and Davis, LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 David L. Jordan, Deputy General Counsel Kathleen R. Fowler, Assistant General Counsel Stephanie G. Kruer, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 John J. Copelan, Jr., County Attorney Sharon Cruz, Esquire, Assistant County Attorney Lisa Zima Bosch, Assistant County Attorney Broward County 115 South Andrews Avenue, Suite 423 Ft. Lauderdale, Florida 33301 Nancy Stroud, Esquire Susan Trevarthen, Esquire Burke, Weaver, and Prell 1900 Glades Road, Suite 350 Boca Raton, Florida 33431 James F. Murley, Secretary Department of Community Affairs Suite 1000 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On April 17, 2009, the Department published its Notice of Intent to find the public schools interlocal agreement entered into by Hernando County, Brooksville, and Hernando County School Board, DCA docket no. 27-01, consistent with the minimum requirements of Sections 163.31777(2) and (3), Florida Statutes. On May 21, 2009, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded Brooksville Quarry LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number 09-2833GM. FINAL ORDER No. DCA09-GM-288 On August 10, 2009, Brooksville Quarry, LLC, filed a Notice of Voluntary Dismissal without Prejudice. There are no other Petitioners in this case, and the time has expired for the filing of new petitions for hearing. Therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that *[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT. OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-288 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this 1” say of J ngs , 2009. Paula Ford gency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Linda Loomis Shelley, Esquire Karen Brodeen, Esquire Jacob D. Varn, Esquire Fowler White Boggs PA PO Box 11240 Tallahassee, FL 32302 John P. Carland, II, Esquire Hernando County School Board 919 N Broad Street Brooksville, Florida 34601-2397 Geoffrey Kirk, Esquire Assistant County Attorney Hernando County 20 North Main Street, Suite 462 Brooksville, Florida 34601-2850 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA09-GM-288
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 issues are whether the Department of Education’s (Department) decision to deny Petitioner’s application for capital outlay funding for the 2017-2018 school year is in conflict with Florida Administrative Code Rule 6A-2.0020(4)(b), as amended effective August 13, 2017, and is, therefore, based on an unadopted rule; and whether the Department’s decision to deny the application should be determined under the prior version of the rule.
Findings Of Fact Petitioner is a not-for-profit public charter school located in Ocoee, Florida, serving approximately 260 students in kindergarten through grade five. The school opened in the 2012-2013 school year, but did not receive a school grade until 2014-2015. That year, it received a grade of “B.” It received a grade of “D” in 2015-2016 and a “D” in 2016-2017. Since school year 2015-2016, Petitioner has been operating under a School Improvement Plan, approved and reviewed by its sponsoring school district, the Orange County School District. A School Improvement Plan is a plan designed to improve academic performance and is required when a charter school receives a grade of “D” or “F.” See § 1002.33(9)(n)1., Fla. Stat. (2016). The Department is the agency charged with the responsibility of administering capital outlay funds for charter schools pursuant to section 1013.62, Florida Statutes.1/ Charter school capital outlay funding is a source of funds for charter schools, which must meet eligibility criteria set forth in section 1013.62. The funds can be used only for specific purposes set forth in the statute, such as the purchase of real property, construction of school facilities, purchase of vehicles, computer equipment and software, insurance for school facilities, and renovation and repair of school facilities. See § 1011.71(2), Fla. Stat. Petitioner has used the funding “for subsidizing or supplementing [its] rent.” If funds are appropriated by the Legislature, each year the Department is required to allocate capital outlay funds to eligible charter schools. The allocation is based on the number of students in the school. In school year 2017-2018, charter school capital outlay consisted of a combination of state and local funds, which included both a state appropriation and revenue resulting from the discretionary millage level levied by local school districts under section 1011.71(2). The state appropriation for charter school capital outlay for that year was $50 million. In order to receive capital outlay funds, a charter school must satisfy a number of criteria, one of which is that the school must have “satisfactory student achievement based on state accountability standards applicable to the charter school.” § 1013.62(1)(a)3., Fla. Stat. A school’s budgetary concerns are not a consideration in the approval process. Rule 6A-2.0020 governs eligibility for charter school capital outlay funds and implements the statutory requirement for satisfactory student achievement. The previous version of the rule, effective December 15, 2009, stated, in part: (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. Under this version of the rule, a charter school that received an “F” grade was automatically ineligible for capital outlay funding. A school that received any grade other than an “F” was evaluated based upon satisfaction of performance metrics in the charter school contract and the School Improvement Plan, if there was one. Therefore, capital outlay funding was not guaranteed to any charter school under the former version of the rule. The 2016 Legislature amended section 1013.62 to change eligibility criteria for charter school capital outlay funding, although the section of the statute relating to satisfactory student achievement was not amended. The goal of the Legislature was to raise academic standards required of charter schools in order to qualify for capital outlay funding. In order to comply with these statutory changes, the Department proposed revisions to rule 6A-2.0020. These proposed revisions also included changes to the criteria for determining satisfactory student achievement that would be required in order to be eligible for capital outlay funds. Rule development began in May 2016, and the Department anticipated that the amended rule would go into effect before school year 2016-2017. The Department determined that revisions to the satisfactory student achievement portion of the rule were necessary in order to be consistent with the Department’s overall approach to school quality and accountability, which included the adoption of new standards and assessments. Based on a review of the school grading statute, and the definition of a “D” school as one that is making less than satisfactory progress, the Department determined that a school earning an “F” or two consecutive grades below a “C” was not consistent with the requirement for satisfactory student achievement. The proposed rule was approved by the State Board of Education at the September 2016 board meeting, but was later withdrawn for further revision. On February 28, 2017, the Department published a Notice of Proposed Rule, proposing that, beginning in school year 2017- 2018, a charter school with two consecutive grades below a “C,” as well as a single “F” grade, would be ineligible for capital outlay funds. The amended portion of the rule that addresses satisfactory student achievement and which is at the heart of this dispute, states as follows: 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 school year 2016-17, a charter school that receives a grade designation of “F” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, 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 school year 2017-18, a charter school that receives a school improvement rating of “Unsatisfactory” shall not be eligible for capital outlay funding. The words, “Beginning in the school year 2017-18,” were included in the rule to make it clear that the new criteria for satisfactory student achievement would not apply to schools in school year 2016-2017, but instead would apply to schools applying for funding for the school year 2017-2018. These changes were approved by the State Board of Education on March 22, 2017, or before charter schools began submitting applications for funding for the following school year. Due to a third-party challenge of the new rule, however, it did not become effective until August 13, 2017. Fla. Ass’n of Indep. Charter Sch. v. Fla. Dep’t of Educ., Case No. 17-1986RP (Fla. DOAH July 21, 2017), aff’d, 2018 Fla. App. LEXIS 8802 (Fla. 1st DCA June 21, 2018)(per curiam). The Department requires charter schools to submit an application for capital outlay funding each year and requires the sponsoring school district to review the application and make a recommendation regarding eligibility. The applications are filed with the Department using a web-based system known as the Charter School Portal. The Commissioner of Education then makes the final decision as to whether the school has satisfied all eligibility requirements. For the school year 2017-2018, applications for charter school capital outlay funding were due by July 7, 2017, and each sponsoring school district was required to review and recommend its charter schools’ capital outlay plans by July 28, 2017. For school year 2017-2018, 582 applications were submitted for review by the Department. Petitioner began receiving capital outlay funding in school year 2015-2016. It also received funding for school year 2016-2017. Funding in those two years was based on the old rule. Because Petitioner expected, but was not guaranteed, to get capital outlay funding again in 2017-2018, it planned its budget for the upcoming school year with those funds included. Had its application been approved, Petitioner would have received approximately $68,000.00 in capital outlay funding. On June 27, 2017, or three months after the rule was adopted by the State Board of Education, Petitioner submitted its application for charter school capital outlay funding. The Department did not inform Petitioner by separate written notice that the new rule would apply to all capital outlay applications for school year 2017-2018.2/ On July 13, 2017, the Orange County School District recommended that Petitioner be eligible for capital funding. Based on the amended rule, which became effective on August 13, 2017, Petitioner was determined ineligible for capital outlay funding for the 2017-2018 school year, as its two most recent school grades from 2015-2016 and 2016-2017 were lower than a “C.” This determination was consistent with the language in the revised rule, which stated clearly that the rule would apply “Beginning in the school year 2017-18.” In making this determination, the Department applied the rule in a prospective manner, beginning with the 2017-2018 school year, but it used the two most recent school grades (2015-2016 and 2016-2017) to determine eligibility for capital outlay funds. Petitioner was one of approximately a dozen schools that were impacted adversely by the change in the rule. On August 29, 2017, the Department sent an automated email to Petitioner stating that the school was ineligible for capital outlay funds. The email informed Petitioner that the basis for the denial could be accessed on the web-based system that the school used for filing its application. Petitioner also was notified of the denial of capital outlay funds by letter dated October 30, 2017, and yet a third time in an amended letter dated February 2, 2018. The last paragraph in the amended letter reads as follows: After review of your Charter School Capital Outlay Plan, submitted for 2017-18 school year, it has been determined that your school is ineligible to receive charter school capital outlay fund. According to Rule 6A- 2.0020(4), Florida Administrative Code, beginning in the 2017-18 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. Therefore, Kids Community College Charter does not meet the requirements for charter capital outlay funding for the 2017-18 school year, as the school received two consecutive grades lower than a “C” [in school years 2015-2016 and 2016-2017]. Petitioner contends that because the letter conflicts with the terms of the amended rule, it constitutes an unadopted rule and cannot be used as the basis for denying its application. In the same vein, Petitioner argues that the most reasonable interpretation of the rule is that only school grades earned beginning in 2017-2018 and beyond can be used to satisfy eligibility for capital outlay funds. This interpretation of the rule, however, would mean that charter schools with any grade designation, including “Fs,” could receive funding in school years 2017-2018 and 2018-2019. Also, it would effectively delay implementation of the new academic standards for two years. In short, if Petitioner’s interpretation is accepted, the new eligibility criteria could not take effect until school year 2019-2020. This is contrary to the Department’s interpretation of the rule, which determines eligibility for capital outlay funds based on the new criteria beginning in school year 2017- 2018. The Department’s interpretation of the rule is as or more reasonable than the interpretation offered by Petitioner. On February 23, 2018, Petitioner filed its request for an administrative hearing to contest the Department’s decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order denying Petitioner’s application for capital outlay funding for the school year 2017-2018. DONE AND ENTERED this 9th day of August, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 9th day of August, 2018.
The Issue The issue to resolve is whether just cause exists to terminate Respondent’s employment as a classroom teacher.
Findings Of Fact Respondent is employed as a classroom teacher at Fort Myers High School in Lee County, Florida. Respondent taught the subjects of English and drama. Respondent was also the sponsor of the drama program at Fort Myers High School. The parties stipulated that Respondent is considered “instructional personnel” as defined by section 1012.40(2)(d), Florida Statutes, and that Respondent’s employment can be terminated for “just cause” under the collective bargaining agreement between the Teachers Association of Lee County and the School Board (Collective Bargaining Agreement). Florida Thespians is an Educational Theatre Association Affiliate, which provides students an opportunity to compete in a variety of drama competitions regionally and throughout the State of Florida. District 6 is a chapter of the Florida Thespians organization that is charged with organizing and hosting festivals and competitions for students at Florida Thespians member high schools in Charlotte, Collier, Lee, Manatee, and Sarasota Counties. Fort Myers High School is a member of the District 6 chapter of Florida Thespians. Respondent was the Chair of District 6. As the Chair of District 6, Respondent collected funds from District 6 students who participated in Florida Thespians events, and deposited those funds in the District 6 bank account. Respondent was a signatory on the District 6 bank account and had a debit card that allowed her to access funds deposited into the account. The District 6 bank account funds were to be used to pay for Florida Thespians related activities and events only. In May of 2019, the principal of Fort Myers High School removed Respondent from her position as a drama teacher for reasons unrelated to this case. Because she no longer taught drama at a District 6 high school, Respondent was ineligible to continue as Chair of District 6, and resigned from that position on May 31, 2019. After Respondent resigned, Janelle Laux, another high school drama teacher in Lee County, was elected as Chair of District 6. After Ms. Laux became Chair, she reviewed the District 6 bank account statements and identified certain expenditures linked to Respondent that appeared to be unrelated to Florida Thespian activities or events, including debit card charges for medical expenses and repairs to a motor vehicle owned by Respondent. The parties stipulated that while Respondent was District 6 Chair, she utilized the District 6 debit card to pay for personal medical expenses, including $25 on September 14, 2016; $158.34 on December 8, 2017; $132 on July 25, 2018; and $91.50 on October 30, 2018. Respondent argues in her PRO that she mistakenly used the District 6 debit card to pay these personal medical expenses. At her pre-determination conference, however, Respondent and her attorney admitted that Respondent used the District 6 debit card to pay for these personal medical expenses because her personal credit card would not work at the time and she did not have any cash on hand.1 Respondent, through her attorney, claims to have repaid the District 6 bank account for these personal medical expenses within 1 Under the Collective Bargaining Agreement, Respondent is entitled to a pre-determination conference to contest proposed discipline and is entitled to be represented by counsel. Respondent’s pre-determination conference was held on February 20, 2020. A transcript of Respondent’s pre-determination conference was admitted in evidence without objection as Petitioner’s Exhibit 6. The statements made by Respondent at her pre-determination conference are admissible as admissions. Likewise, the statements made by Respondent’s attorney at the pre-determination conference are admissible as admissions because the transcript shows that he was acting as Respondent’s agent at the time the statements were made. See Fla. R. Evid. 90.803(18)(a) and (d). a year, but did not identify the date funds were deposited into the District 6 bank account to cover these expenses, and otherwise offered no proof to substantiate this claim.2 But even if Respondent had proven that she reimbursed the District 6 bank account at a later date, she was not authorized to borrow money from the District 6 bank account to pay for personal medical expenses. The District 6 bank account funds were to be used for Florida Thespians activities or events only. The undersigned finds that Respondent knowingly used the District 6 debit card to pay for her personal medical expenses on four separate occasions, that the total of these payments is $406.84, and that the use of District 6 funds in this manner was solely for Respondent’s personal gain. The parties stipulated that while Respondent was District 6 Chair, she used the District 6 debit card to pay for repairs to her personal motor vehicle, including $284.06 on October 28, 2016; and $433.54 on December 1, 2017. Respondent did not reimburse the District 6 bank account for these personal expenses. Respondent argues in her PRO that the motor vehicle repair bills were legitimate District 6 expenses because she used the subject motor vehicle to travel to Florida Thespians related events and did not charge District 6 a mileage-based fee to do so. Respondent did not, however, testify at the final hearing, and did not prove that the subject vehicle was used to travel to Florida Thespians events or otherwise used to benefit District 6 in any way. But even if she had offered such evidence, the undersigned rejects the notion that the payment of Respondent’s motor vehicle repair bills is the functional equivalent of paying Respondent a mileage-based fee for travel. The undersigned finds that Respondent knowingly used the District 6 debit card to pay for repairs to her personal motor vehicle on two separate occasions, 2 The District 6 bank account statements admitted in this proceeding show that deposits were made at various intervals, but do not identify the source of the funds or the purpose for which they were deposited. that the total of these payments is $717.60, and that the use of District 6 funds in this manner was solely for Respondent’s personal gain. On September 26, 2019, Florida Thespians dissolved the District 6 chapter, citing the failure of District 6 to submit accurate financial documents for review, among other grounds. The dissolution of District 6 made it more difficult for District 6 students to participate in Florida Thespians events. The undersigned finds that the dissolution of District 6 was due in part to Respondent’s misappropriation of District 6 bank account funds. Petitioner alleged in its Petition that Respondent also misused District 6 bank account funds to pay for meals, gas, Amazon purchases, and a scholarship for her daughter, and that Respondent “conducted significant personal business and District 6 related business during contract hours using her District computer and email.” These allegations were not proven.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of misconduct in office and terminating her employment. DONE AND ENTERED this 9th day of October, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 9th day of October, 2020. COPIES FURNISHED: Brian Anthony Williams, Esquire Lee County School District 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) James Holloway, III, Esquire Lee County School District 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Dr. Gregory Adkins, Superintendent Lee County School District 2855 Colonial Boulevard Fort Myers, FL 33966-1012 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
The Issue Whether just cause exists to reprimand and suspend Respondent, Thomas Caggiano, for five days without pay from his position as a teacher with Petitioner, the School Board of Duval County (School Board),1 for the reasons set forth in the March 26, 2021, correspondence from the School Board, which contained an April 6, 2021, Amended Step III Progressive Discipline Petition.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise free public schools within Duval County Public Schools. See Art. IX, § 4(b), Fla. Const.; § 1012.33(1)(a), Fla. Stat. The School Board and Mr. Caggiano executed a professional service contract, as defined in section 1012.33, Florida Statutes, and he has been employed by the School Board since 1994. The School Board has renewed this professional services contract on an annual basis. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education rules, and the Collective Bargaining Agreement (CBA) between Duval Teachers United and the School Board. The CBA relevant to this matter was effective from 2017 through 2020.2 Mr. Caggiano’s Employment at SHS Mr. Caggiano had been a math teacher at SHS for numerous years, including the time period relevant to the allegations of the Amended Step III Progressive Discipline correspondence. He currently remains employed by the School Board, but is currently not a math teacher at SHS. During his career with the School Board, Mr. Caggiano received positive employment evaluations. Prior to the allegations at issue, the School Board had never disciplined Mr. Caggiano. During the 2019/2020 school year, Mr. Caggiano taught Algebra II. During his career at SHS, he also taught geometry, trigonometry, analytic geometry, calculus, and statistics. He also taught college-level classes for Embry-Riddle Aeronautical University during this time. As a teacher at SHS and an employee of the School Board, Mr. Caggiano received numerous and various training materials and updates concerning governing policies and procedures, electronically (via email). 2 The CBA entered into evidence, without objection, and which was unexecuted, states on its cover page that it is effective from 2017 through 2020. However, the same document, in Article XV, section C, states that it is effective from July 1, 2014, through June 30, 2017. As the Amended Step III Progressive Discipline letter references the 2017-2020 CBA, and as no party objected to the CBA that the undersigned accepted into evidence, the undersigned has treated the CBA entered into evidence as the CBA that was in effect during the allegations concerning Mr. Caggiano. Many of these materials were provided to Mr. Caggiano prior to faculty and staff training, which occurred in the weeks leading up to the start of the school year. Among the various materials provided to Mr. Caggiano (and other faculty) was a handout entitled “Ethics and Professionalism,” provided by Duval County Public Schools’ Office of Equity and Inclusion/Professional Standards. SHS also provided Mr. Caggiano (and other faculty) a link to its handbook, which contained policies, laws, and rules that govern Mr. Caggiano. The “Ethics and Professionalism” training materials contained a section on social media, and stated: Please ensure that personal social media accounts are set to private. Do not accept friend requests from students or their parents, and use discretion when inviting colleagues to your pages. Please ensure that your social media posts are respectful and do not possess profane, insensitive, or offensive language or images. As a reminder, you may not post photographs or identifying language about your students. It is a violation of FERPA. In the Acceptable Use Policy (2.1.11), it states “Employees must maintain professional boundaries between themselves and students. Employees will not solicit or engage in inappropriate communications with students verbally, in writing, or electronically regardless of the age of the student. Employees will not engage in any direct electronic communications with students, parents, supervisors, or co-workers whether by e-mail, instant messaging, or other digital media that will adversely affect the employee’s ability to perform his or her job.” Here are some best practices to follow: You are the adult, the teacher, the professional. You are not their friend. You are in violation of the Code of Ethics if you post disparaging comments about your colleagues, administration, and/or the Superintendent. Do not post material that is illegal, sexually explicit, obscene, derogatory, related to alcohol or drug use, or in violation of copyright laws. Do not access social networking sites from your school computer or during work time. Be cautious about photos posted online. Students and parents could view them! Any information posted to, or communicated through, a social networking site shall not bring disfavor, embarrassment or condemnation to the student, employee or school district. Mr. Caggiano (and other faculty) further received materials and training related to the School Board’s Non-Discrimination Policy (Board Policy 10.10), which states: Duval County Public Schools (DCPS) believes that education should be provided in an atmosphere where differences are understood and appreciated, and where all persons are treated fairly and with respect, and where all persons are free from discrimination, harassment and threats of violence or abuse. School board policy explicitly states, “No person shall, on the basis of a person’s actual or perceived identity with regard to race, color, religion, gender or gender identity, age, marital status, disability, sexual orientation, political or religious beliefs, national or ethnic origin, veteran status, or any other distinguishing physical or personality characteristics, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity on in any employment conditions or practices conducted by this School District, except as provided by law.” Previous Incident Involving Transgender Student J.N.S. J.N.S., a student at SHS, is a female transgender student and has identified as female at least since the 2018-2019 school year, her freshman year. In the summer before her sophomore year, after receiving her class assignments for the new academic year, J.N.S. sent an email to all of her new teachers, including Mr. Caggiano. The August 5, 2019, email, sent at 9:21 p.m., stated: I will be in your class during the 2019-2020 school year, and I would like to let you know that I am a Male-to-Female Transgender student who would like to go by the name [J.N.S.] as well as female pronouns in your class. I am sending this email before the actual school year starts so that there is plenty of time to change it on the roll before then if possible. Thank you very much for carrying out my request, I can’t wait to attend your class this year. That same evening, Mr. Caggiano responded to J.N.S.’s email: I will call you by any reasonable name you like, but the pronouns are not a negotiable thing for me. I will NOT refer to you with female pronouns. If this is not acceptable for you change classes. J.N.S. testified that most of her remaining teachers responded to this email in a positive fashion, agreeing to her request. J.N.S. also testified that she posted her email interaction with Mr. Caggiano on one of her social media platforms. On August 6, 2019, during the faculty pre-planning period before classes started, SHS held a mandatory training session presented by Dr. Wells as part of the Duval County Public Schools’ “All In: Ally for All” program. As part of this training, Dr. Wells presented various Duval County Public Schools policies that included the treatment of transgender students, including that transgender students had a right to be called by names that they chose. Principal Hatcher also attended this training, and stated that all students had a right to be called by their requested names, including pronouns. A sign-in sheet reflected that Mr. Caggiano attended this training session, although Mr. Caggiano testified that he did not recall attending. On August 7, 2019, J.N.S. contacted the SHS school counselor, Ms. Solliday, to request a transfer out of Mr. Caggiano’s class. After conferring with SHS Assistant Principal Motley, Ms. Solliday transferred J.N.S. to a different class with a different teacher. J.N.S. never attended Mr. Caggiano’s class, was never his student during the 2019-2020 school year, and has never been a student in Mr. Caggiano’s class. On August 12, 2019, Principal Hatcher met with Mr. Caggiano regarding his email response to J.N.S. and to counsel him regarding Duval County Public Schools’ policies for addressing students. Principal Hatcher informed Mr. Caggiano that he should use whatever name or pronoun a student asks to be called. Mr. Caggiano testified that he told Principal Hatcher he would stop using all pronouns, and refer to a student by the name requested. Although the School Board devoted a significant amount of time and effort at the final hearing to this incident involving Mr. Caggiano’s response to J.N.S.’s email request, this incident is not part of the Amended Step III Progressive Discipline correspondence that is the subject of the instant action. Dr. Hatcher counselled Mr. Caggiano on this issue. The undersigned heard testimony of various students, faculty, administrators, and even a school psychologist concerning this incident, which the undersigned finds provides background to the issues included in the Amended Step III Progressive Discipline correspondence; however, this particular incident does not form the basis for the proposed discipline in the instant proceeding. Mr. Caggiano’s Use of Facebook Mr. Caggiano testified that he decided to set up a Facebook account sometime in 2008, to catch up with old friends. He testified that his daughter, Arielle, actually set up the account, and told him that his account’s settings were “private.” Thereafter, Mr. Caggiano stated that he posted and commented on posts of his Facebook “friends,” and because he believed his settings were “private,” he believed that only those “friends” could see those posts and comments. He testified that “[a]ll my posts were either political commentary, social commentary, or adult humor.” Mr. Caggiano did not accept any of his students as Facebook “friends,” but did have a few fellow SHS teachers as Facebook “friends.” He testified that he did not think anybody from SHS would be able to see his Facebook posts, aside from the fellow SHS teacher “friends.” Additionally, at some point in the past, Mr. Caggiano set up a separate Facebook account, called “AP Caggiano,” for students in an advanced placement class to post questions or comments concerning a class. Mr. Caggiano testified that he had not used that particular Facebook account in some time. Mr. Caggiano also testified that he never accessed his Facebook account at SHS or during his normal work hours. Mr. Stika, who was a forensic examiner in the Information Technologies department of Duval County Public Schools, testified that Mr. Caggiano did not use his school- issued laptop to access Facebook during the time period relevant to the instant matter. Amended Step III Progressive Discipline On May 19, 2020, the Duval County Public Schools Office of Equity and Inclusion/Professional Standards received an email concerning Mr. Caggiano’s Facebook postings. On May 21, 2020, the Florida Times Union published a story concerning Mr. Caggiano’s Facebook postings and comments. The May 19, 2021, email, and the May 21, 2020, newspaper article, caused an investigation into Mr. Caggiano’s Facebook posts and comments, conducted primarily by Mr. Johnson. Mr. Johnson interviewed parents, students, former students, Principal Hatcher, Mr. Stika, and Mr. Caggiano, as part of this investigation. His findings form the basis for the Amended Step III Progressive Discipline correspondence. As alleged in the Amended Step III Progressive Discipline correspondence, the complainant provided screenshots of Mr. Caggiano’s Facebook postings. Mr. Johnson’s investigation discovered a Facebook account in the name of “Thomas Caggiano,” who was listed as a Duval County Public School teacher. Mr. Caggiano admitted that the Facebook account referenced in the Amended Step III Progressive Discipline correspondence was his personal Facebook account, which his daughter initially set up. As reflected in the Amended Step III Progressive Discipline correspondence, the investigation revealed Mr. Caggiano, commencing on or about January 2020, admitted to 27 various Facebook posts, reposts, or comments. The Amended Step III Progressive Discipline correspondence specifically alleges that “some of your posts and/or comments were as follows[,]” and then lists seven specific posts, reposts, or comments from Mr. Caggiano’s personal Facebook account.3 At the final hearing, the undersigned heard testimony and considered evidence of Mr. Caggiano’s Facebook posts, reposts, or comments, including Mr. Caggiano’s testimony, and finds that Mr. Caggiano’s Facebook account reflects the following posts and reposts—which could be considered “memes,” which can be defined as amusing or interesting pictures, videos, etc., that are 3 The School Board introduced into evidence other Facebook posts, reposts, or comments attributed to Mr. Caggiano, and questioned numerous witnesses about this “other” Facebook activity. The undersigned has only considered the allegations contained in the Amended Step III Progressive Discipline correspondence in determining whether the School Board has just cause to discipline Mr. Caggiano. spread widely through the internet or social media—or comments to memes or articles, that were made, or reposted, by Mr. Caggiano. These seven posts, reposts, or comments, which are the only posts, reports, or comments alleged in the Amended Step III Progressive Discipline, are: A repost from a Facebook entity called “Messenger of Liberty,” which states: “My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he’s been spit on, punched and had a bottle thrown at him! I’m curious to see what happens when he goes outside.”; A repost from an individual and an entity called “LIFT – LONG ISLANDERS FOR TRUMP,” which states: “Crazy but TRUE, If this girl sees a penis at a party it’s a crime … [with an accompanying photograph of a young woman], but if this girl sees a penis in the woman’s bathroom … it’s tolerance [with an accompanying photograph of a girl in a bathroom]. Vote Republican and put an end to the madness.”’ A post authored by Mr. Caggiano which states: “Dumb ass liberals are now organizing protest against the killing of the Iranian general (terrorist) who was responsible for many attacks against the USA. Amazing how TRUMP derangement syndrome can cause democraps, and the main stream media, to support our enemies.”; A repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…” The “screen grab” attributes this quote to Bernie Sanders, currently a United States Senator from Vermont, sometime in the 1970’s (the exhibit copy is unclear), and Mr. Caggiano’s handwritten notes next to this exhibit states” “Bernie said this!”; A repost from a Facebook entity called “Maine Bikers,” which states: “Meanwhile at the ‘Bikers for Bernie’ rally…[,]” and which contains a picture of two nude men on a motorcycle; What appears to be an attempted repost by Mr. Caggiano, which Facebook apparently removed with the message “False information, Checked by independent fact-checkers,” but which also contains the following comments from Mr. Caggiano: “Teach this childish nasty bitch a lesson. Have her treasonous ass removed from office and put in jail.”; and A repost, dated August 19, 2020, from Mr. Caggiano, of an article from an entity called “Lifesitenews.com,” with a headline that states, “Teen girls stage school walkout to protest boys in their bathroom who claim to be ‘girls’”; and to which Mr. Caggiano commented, “Love it! About time people stood up to this insanity.” The Amended Step III Progressive Discipline correspondence further alleges: Resulting from our Facebook postings, your school and district leadership were both impacted as they received several complaints and/or concerns from students, parents and constituents expressing their displeasure with your conduct as a Duval county teacher and the comments displayed within your Facebook account. Many parents also contacted the school and informed the principal that they would not want their children in your class for the 2021- 2021 school year. If this administrative action had not occurred, the public consequences would cause an equity issue for other teachers by redistributing your assigned students or assignment of replacement teachers. While you are certainly entitled to your First Amendment right to free speech, your actions are in direct contradiction to the District’s mission to “Provide educational excellence in every school, in every classroom, for every student, every day.” This is without regard to a student’s ethnicity, race, religious beliefs, gender orientation, political persuasion, or any other qualifier. In addition, the Principals of Professional Conduct of the Education Profession in Florida (Florida Administrative Code 6A-10.081), requires that an individual, “Take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.” As an educator you have a duty and/or a responsibility to maintain the respect of the community and your colleagues. You posted and/or shared inappropriate, derogatory, demeaning and inflammatory material and comments referencing sexual orientation, national origin, and domestic abuse on your public social media (Facebook) account. Your conduct was unethical, lacked integrity and violated Duval County School Board policy, as such, warrants corrective discipline. The Amended Step III Progressive Discipline correspondence alleges that Mr. Caggiano’s Facebook posts, reposts, and comments violated section 1006.147, Florida Statutes; Florida Administrative Code Rules; rules 6A-5.053 and 6A-10.081, and Duval County School Board Policies 6.80 and 10.10. It further alleges that, pursuant to article V, section 9, of the CBA, which concerns “potential harm to the physical or mental wellbeing of a student, or students, constitutes more severe acts of misconduct which warrant circumventing progressive disciplinary steps,” and imposed discipline of a written reprimand, five consecutive working days of suspension without pay, and a requirement that Mr. Caggiano complete a course in “Culture Diversity” by a certain date.4 Additional Facts Concerning Mr. Caggiano’s Facebook Account J.N.S. testified that at some point after her email interaction with Mr. Caggiano, she was “curious” and decided to access his Facebook account, 4 A review of the CBA in evidence shows that the provision of the CBA that addresses progressive discipline may be found in article V, section C, subsections 9 and 10. and saw numerous posts, including some of the posts that form the basis of the School Board’s proposed discipline. She stated that she was “appalled, but not surprised.” She also testified that the Florida Times Union reporter who authored the May 21, 2020, article about Mr. Caggiano reached out to her through social media concerning Mr. Caggiano. Ms. Schultz previously served as SHS Principal during the time period that Mr. Caggiano taught at SHS. She recalled seeing Mr. Caggiano’s posts that were “forwarded” to her, and she thereafter communicated directly with Mr. Caggiano. She stated that she asked Mr. Caggiano to remove his Facebook posts. In an email exchange between them, after Ms. Schultz informed Mr. Caggiano that she was able to access his Facebook account numerous times after he stated that he had changed his account settings to private, Mr. Caggiano wrote: Thank you for your email. I have had my daughter assist me in making my Facebook account settings “private,” and I have changed my account password. I am going through and removing a number of posts that were made by people that I do not know. I do not want to shut the entire account down, because I have a number of personal photos of my grandkids and me. Please confirm whether you are still able to see the Facebook “wall” for my account. I want to make sure the settings are properly adjusted so that only people whom I accept as “friends” can see what I post at this time. As you are aware, I have also received inquiries from the Duval County Public Schools Equity & Inclusion/Professional Standards supervisor …. In the emails, [he] provided me with a link to a Times- Union article by reporter Emily Bloch. [He] inquired whether I posted the items in question, on my Facebook account, as attributed by the writer of the article. I have reviewed the article. The article indicates that I am not obligated to respond to [his] inquiry. The article states that a “note from the Office of Equity and Inclusion and Professional Standards added that an inquiry ‘could take some time, as the office cannot compel anyone to meet or speak with us’,” and that I “did not directly reference a student of direct [my] posts at a student in [my] posts,” nor identify myself as a Duval County Public Schools teacher in my posts. Please confirm whether the article’s statement is accurate, as I prefer to only respond on this issue as I am obligated and as is otherwise necessary. For the record, I view Emily Bloch’s article as a well- timed political hit piece, full of inaccuracies, targeting me for my political views on issues of sexuality, to promote the latest version of the “need” for the City of Jacksonville Human Rights Ordinance (“HRO”), which was illegally passed back in 2017, and recently struck down by a Florida court. It is a transparent attempt to torpedo a good teacher’s career, to score political points. I hope the Duval County Schools will not countenance this reporter’s efforts to manufacture an issue to promote her political causes, especially where the public cannot come out to oppose the latest ordinance, because of Coronavirus. I treat all of my students with dignity and respect, and my classroom record speaks for itself. I will not lie to my students. I treat all of them with honesty and fairness. On the other hand, I make no secrets that when I am not acting in my official capacity as a Duval County Schools teacher, I do engage in robust political debate on political issues. I deny making any kind of “phobic” remarks or posts. A “phobia” is an irrational fear. Holding traditional views about the biological nature of sex (and need for sex-based privacy in bathrooms and lockers) is not a “phobia.” Disagreement with the political orthodoxy of the Left on matters of sexuality is not a “phobia.” Sharing my belief on my personal Facebook that there are only two genders that correspond with biological sex is not a “phobia.” Ms. Bloch may not like the way I make those points, and that is fine. Since I have been active on Facebook, I know I have shared various political memes on my personal Facebook wall, or commented in response to others’ postings. I do not instantly recall them all. Memes are often a good way of making pithy political statements, with a touch of humor. Sometimes “humor” is in the eye of the beholder, or is funny at the time. I’m sure I found certain memes funny or punchy at the time, and I have friends who did as well. I’m sure others may not find them funny, or may disagree with me, as is their right. I have not gone back through the last year’s worth of Facebook postings, and I am unable to verify some of Ms. Bloch’s attributed quotes. I can confirm that the account settings are now “private.” I stand by a number of statements Ms. Bloch attributes to me (or at least, I agree with the sentiments expressed, where they may have been posted by me or others). Others I do not. I will also note that at least one of the specifically quoted references in Ms. Bloch’s article was taken out of context, and she uses that out-of-context quote to suggest my remarks are “racist” or “xenophobic.” I’m neither. In fact, some of my beautiful grandchildren are “biracial” (for lack of a better term – there is only one “race”– the human race). But even having to make that note is offensive, and suggests bigotry and prejudice on the part of Ms. Bloch in leveling that charge against me. For the record, the “corona” or “covid” food reference was a political jab at President Trump’s references to the “CHINA” virus. Nothing more, nothing less. I trust that the Duval County Schools will continue to respect the rights of teachers to engage in robust political debate on Facebook, on matters of public concern (such as the political “transgenderism” movement – “Exhibit A” of which is the novel “lexicon” Ms. Bloch placed in her article, purporting to tell the public which terms are acceptable in the debate, and which are not). The First Amendment surrounds political speech with the highest level of protection, whether some people find the speech of others “offensive,” or wish to silence speakers with whom they disagree. Mr. Caggiano and his daughter, Arielle, testified that it was, and has been, Mr. Caggiano’s intention that his Facebook account settings be “private” so that only his “friends” could see them, and that after the May 21, 2020, Florida Times Union article, they both checked and saw that it was not set to private. Arielle then set Mr. Caggiano’s settings back to private. The School Board called numerous witnesses, including students and parents, who testified about accessing Mr. Caggiano’s Facebook account. None of the student witnesses (including J.N.S.) were students of Mr. Caggiano. Ms. Porak, a parent of students at SHS, testified that neither of her children had Mr. Caggiano for a teacher. The various student and teacher witnesses discussed a number of Mr. Caggiano’s Faceook posts, reposts, and comments, only some of which were contained in the Amended Step III Progressive Discipline correspondence. Impact of Mr. Caggiano’s Facebook Posts After the publishing of the May 21, 2020, Florida Times Union article, school officials, including Ms. Schultz and Dr. Hatcher, testified to receiving numerous complaints. The undersigned received into evidence numerous complaints from parents concerning Mr. Caggiano’s Facebook posts, some of which were included with Mr. Johnson’s investigative report. Some of these parents also testified at the final hearing concerning their complaints and feelings concerning Mr. Caggiano’s Facebook activity. These parents testified that they felt Mr. Caggiano’s Facebook posts were inappropriate for a teacher. Assistant Principal Motley testified that a total of four students (not including J.N.S.) requested and were transferred out of Mr. Caggiano’s classes during the Spring 2020 semester. Dr. Hatcher testified that after the Duval County Public Schools removed Mr. Caggiano from SHS, it took part of the Fall 2020/2021 semester to hire a full-time replacement teacher. During that semester, several substitute teachers taught what would have been Mr. Caggiano’s math classes before SHS hired a full time teacher. Ms. Brennan testified that Mr. Caggiano’s Facebook posts impacted J.N.S. negatively. Ms. Brennan did not perform a psychological assessment of J.N.S.; the School Board requested that Ms. Brennan provide emotional support to J.N.S. during her preparation as a witness in this matter in March 2021—more than a year after J.N.S. testified that she read Mr. Caggiano’s Facebook posts. Ms. Brennan testified that J.N.S. has experienced symptoms of depression. She also testified that J.N.S.— previously an A-B student her freshman year, and who had few absences her sophomore year—had approximately 345 separate class absences from school her junior year and was retained. Mr. Caggiano’s Explanation Mr. Caggiano admitted to having authored the Facebook posts, reposts, and comments that are contained in the Amended Step III Progressive Discipline correspondence and detailed in paragraph 29 above. Mr. Caggiano testified that his daughter Arielle “did everything” in setting up his Facebook account, to ensure that his settings were private so that only people he accepted as “friends” could see his posts, reposts, and comments. He further stated that, for the approximately 10 years after establishing his Facebook account, he believed his settings were private. After learning in 2019/2020 that members of the public could view his Facebook account, he again asked Arielle to ensure that it was private. Mr. Caggiano believes his Facebook account was “hacked.” He testified that he believed it to be set to private, and after learning otherwise, “fixed” it. Then, he found it was “public” again. As there was no additional testimony or evidence concerning whether Mr. Caggiano’s Facebook account was hacked, the undersigned does not credit this explanation. Mr. Caggiano testified about the seven posts, reposts, or comments that are the subject of the Amended Step III Progressive Discipline correspondence and detailed in paragraph 29 above. Mr. Caggiano did not express any regret in making any of these Facebook posts, reposts, or comments. With respect to Mr. Caggiano’s repost from a Facebook entity called “Messenger of Liberty,” which states, in part, “My son is taking part in a social experiment[,]” Mr. Caggiano testified that “it’s funny. All my posts were either political commentary, social commentary, or adult humor. And that’s funny. Okay. So for somebody to look at that and not giggle at least, you know, I don’t think you know what funny is. That’s funny.” This particular repost states that, after his son wears a “Bernie” t-shirt, “[s]o far he’s been spit on, punched and had a bottle thrown at him.” Although Mr. Caggiano testified that he believed this to be “funny,” the undersigned finds that it also could be logically read to encourage violence against a child. With respect to Mr. Caggiano’s repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…[,]” and which attributes this quote to Bernie Sanders, sometime in the 1970’s (the exhibit copy is unclear), Mr. Caggiano testified that it was not his opinion, but that he was quoting Bernie Sanders, and that “people should know somebody who’s a sitting senator, twice presidential candidate, former mayor of New York City, has this sort of mentality.” On cross-examination, when asked if “women, teenage girls, could be offended by this post[,]” Mr. Caggiano testified, “I think everybody should be offended by this.” The undersigned finds that despite Mr. Caggiano’s belief that his post makes an important point about Bernie Sanders, the undersigned finds that it can be logically read to be patently offensive, discriminatory, and degrading to women. Mr. Caggiano’s own testimony confirms this. The undersigned finds that the remaining posts, reposts, or comments, can be fairly characterized as political memes that, depending on the viewpoint of the reader, could be characterized as crude political commentary, passionate advocacy, or humor. While these postings, which are generally consistent with a conservative ideology, might not originate from more traditionally respected sources like the National Review or the opinion page of the Wall Street Journal, they are the type of abrasive political speech that one regularly finds in social media. In particular, with respect to Mr. Caggiano’s repost of the meme entitled “Crazy but TRUE,” and the article from an entity called “Lifesitenews.com,” with a headline that states, “Teen girls stage school walkout to protest boys in their bathroom who claim to be ‘girls’”; and to which Mr. Caggiano commented, “Love it! About time people stood up to this insanity[,]” the undersigned cannot find that these reposts, or Mr. Caggiano’s comments, are related to, or in retaliation to, his email interaction with J.N.S. concerning the use of pronouns, or his subsequent counselling on the subject. Mr. Caggiano testified of his concern about men using a women’s restroom which, while counter to the policy of the Duval County Public Schools, does not on its face appear to be the type of bullying, harassing, or retaliating prohibited in applicable laws, rules, and policies. Ultimate Findings of Fact Mr. Caggiano created seven posts, reposts, and comments to posts on his personal Facebook account, which are more fully described in paragraph 29 above. Mr. Caggiano contends that he never intended to share these posts, reposts, and comments publicly, and more specifically, to the SHS community. Mr. Caggiano contends that his Facebook account was hacked, which caused all of his Facebook activity to become public. The undersigned finds that Mr. Caggiano’s explanation is not credible, as he testified that he had several SHS teachers as “friends,” and as he did not check his Facebook settings for approximately 10 years, before the Duval County Public Schools, and the SHS community, became aware of the seven posts, reposts, and comments. The undersigned finds that Mr. Caggiano posted, reposted, and commented on Facebook on his personal account, and shared them in a manner that did not ensure that they remain private. Ultimately, Mr. Caggiano’s Facebook posts, reposts, and comments described in paragraph 29 made their way into the public sphere, and students, parents, Duval County Public Schools personnel, and the media viewed and became aware of them. The undersigned finds that two of the alleged posts, reposts, and comments—entitled “My son is taking part in an experiment,” and “MAN AND WOMAN”—warrant further findings that include violations of statutes, rules, and policies enunciated in the Amended Step III Progressive Discipline correspondence. The undersigned does not make such findings with respect to the remaining five posts, reposts, and comments contained in the Amended Step III Progressive discipline correspondence. Accordingly, the following ultimate findings of fact below apply only to the two posts previously mentioned. The two posts at issue concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped. Mr. Caggiano candidly admitted that the post concerning women was offensive. The undersigned finds that these particular posts violate some of the governing laws, rules, and policies alleged in the Amended Step III Progressive Discipline correspondence. Mr. Caggiano violated rule 6A-10.081(1)(b), because the School Board established, by a preponderance of the evidence, that he failed to exercise best professional judgment and integrity. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b). Mr. Caggiano violated rule 6A-10.081(1)(c), because the School Board established, by a preponderance of the evidence, that he failed to maintain the respect and confidence of his colleagues, students, and parents, and failed to sustain the highest degree of ethical conduct. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(a)1., because the School Board established, by a preponderance of the evidence, that he failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students’ mental and/or physical health and/or safety. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rules 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(a)5., because the School Board established, by a preponderance of the evidence, that he intentionally exposed students to unnecessary embarrassment or disparagement. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(b)1., because the School Board established, by a preponderance of the evidence, that he failed to take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which he is affiliated. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-5.056(1), which concerns “immorality,” because the School Board established, by a preponderance of the evidence, that his actions constituted immorality, which is “conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.” Mr. Caggiano violated Duval County School Board Policy 10.10(IV)(A), because the School Board established, by a preponderance of the evidence, that he engaged in conduct that denigrates or shows hostility or aversion toward an individual because of his/her actual or perceived identity with regard to gender. The undersigned finds that the School Board did not establish, bya preponderance of the evidence, that Mr. Caggiano violated section 1006.147(2), which prohibits bullying and harassment. The undersigned finds that the School Board did not establish, by a preponderance of the evidence, that Mr. Caggiano violated rule 6A-10.081(2)(a)6. (“Shall not intentionally violate or deny a student’s legal rights.”), or rule 6A-10.081(2)(c)1. (“Shall maintain honestly in all professional dealings.”). The undersigned finds that the School Board did not establish other alleged violations of Duval County School Board Policy, including bullying or retaliation. The School Board established, with respect to the two aforementioned Facebook posts, that Mr. Caggiano’s conduct constituted “potential harm to the physical and mental wellbeing of a student, or students[,]” and “behavior that impairs the employee’s effectiveness in performing her/his duties, professionalism, and confidence in the eyes of the students and parents/guardians[,]” and thus, under article V, section C, subsections 9 and 10 of the CBA, it was not required to follow the steps of progressive discipline, and had just cause to reprimand (Step II) and suspend without pay (Step III) Mr. Caggiano, and require him to complete a course in Culture Diversity. However, because the undersigned finds that the School Board did not establish that the remaining Facebook posts violated governing laws, statutes, rules or polices, and because the undersigned further finds that the School Board did not establish that the posts constituted bullying or retaliation, the undersigned finds that a reduction in the proposed discipline is warranted.
Conclusions For Petitioner: Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street, Jacksonville, Florida 32202 For Respondent: Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the School Board of Duval County enter a final order that: (1) finds that Mr. Caggiano violated rule 6A- 5.056(1) and (2)(b); rule 6A-10.081(1)(b), (c), (2)(a)1., (2)(a)5., and (2)(b)1.; and Duval County School Board Policy 10.10(IV)(A) for two public Facebook posts or reposts associated with his Facebook account; (2) finds that Mr. Caggiano did not violate section 1006.147(2), rules 6A-10.081(2)(a)6. or 6A- 10.081(2)(c)1., or any remaining portions of Duval County School Board Policy 10.10(IV); (3) issues a written reprimand; (4) suspends Mr. Caggiano, without pay, for three days; and (5) requires Mr. Caggiano to complete a course in Culture Diversity. DONE AND ENTERED this 15th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2021. Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street Jacksonville, Florida 32202 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Diana Greene, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8152 Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent violated School Board Policies 3210 (and, when referenced, corresponding Florida Administrative Code rules), 6610, and/or 6152, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner, Brevard County School Board ("School Board" or "Petitioner"), is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. Beginning in 2009, Respondent, James B. Wilkins ("Wilkins" or "Respondent"), was employed by Petitioner as the band director at Heritage High School. In 2012, Wilkins held a Professional Services Contract. Wilkins has over 30 years' experience working with bands in Florida and North Carolina. He previously taught in Duval and Orange counties, and his personnel files were reviewed and references checked when he was considered for the position at Heritage High School. Petitioner and Brevard Federation of Teachers, Local 2098, are parties to a collective bargaining agreement ("CBA"). Among its terms, the CBA requires just cause for dismissal. Wilkins previously worked for the Orange County School Board, and during his employment, received letters of reprimand in November 2000 (inappropriate physical force and corporal punishment with students and failure to adequately supervise students under his control), April 2004 (shouting match with a student and use of profanity), April 2004 (grabbing a student by the arm and use of profanity), November 2007, and February 2008. During the hearing, Wilkins testified he could not recall the incidents at Orange County Public Schools where he was accused of the use of profanity with students and inappropriate physical force. Wilkins was also previously employed by the Duval County School Board, where he received a letter of reprimand in November 1994 for his use of profanity. Wilkins also received an unsatisfactory rating on his 1995 evaluation for his use of profanity on several occasions despite warnings, and for failure to follow policies or financial procedures. As the band director at Heritage High School, Wilkins taught classes and was also responsible for the extracurricular activities of the band, including marching band and orchestra. Wilkins was also responsible for following the School Board's rules regarding the finances of the band program, as well as the supervising and disciplining of students. Fall 2012 John Tuttle was principal of Heritage High School from its opening in 2009 until October 2012. Tuttle hired Wilkins for the position of band director because he was the best applicant. He knew at the time he hired Wilkins that Wilkins was a strict disciplinarian. Wilkins' organization of the band taught the students responsibility and discipline. Tuttle wanted a band that would showcase the band and its community until the athletic programs could develop. By 2012, the band had been very successful and received many accolades. Tuttle's evaluations of Wilkins each year rated Wilkins "Effective" in each category, the highest rating possible. Wilkins built a strong booster organization for the band that assisted with student financial obligations. Further, Tuttle recognized that Wilkins had established the Heritage Band "as our showcase program." He also noted that Wilkins wrote the "drill music and dance routines" for the band. When Wilkins interviewed for the position, Tuttle asked him what he would like, if he got the job. Wilkins told Tuttle that he would like someone to have the responsibility for money. Tuttle worked previously with Ms. Teressa Torsiello, a parent, when he was principal at Bayside. When Torsiello asked permission for her daughter to attend Heritage, Tuttle gave her the impression that he would approve the transfer only if she would organize the football program and help set up other fund- raising activities at Heritage, including the band. Torsiello knew district financial rules, and Tuttle trusted her. Torsiello soon became the president of the Band Parents Association at Heritage. There was no assistance in how to organize the various parent programs from school district personnel. Torsiello assisted several organizations at Heritage in setting up their programs, including the football program and the band. The Band Parents Association had a constitution and by-laws. Torsiello implemented an accounting program called Charms, which allowed the Band Parents Association to keep track of individual student financial accounts and other matters (such as medical needs and contact information), it could generate receipts, keep track of inventory and produce various reports (such as monthly and year-end financial reports). Parents could access their student's information on-line by using a password. The Band Parents Association met to approve expenditures (with proper receipts), and it used its monthly reports to check the school's internal account balance. The Band Parents Association maintained several accounts. These included: the school's internal account; an account at the Brevard Foundation; a bank account; and a petty cash fund. Every organization at every school Torsiello has ever been involved with has had its own petty cash fund, including the football program at Heritage. Tuttle recognized that he cannot control what the Band Parents Association does with its money– whether they donate to the school (through the internal account or the Foundation) or how they handle it. He can only control the money that comes through the band director and the bookkeeper. The Band Parents Association had to vote to donate money that it raised in order to place it in the school's internal account. Wilkins never handled money until Ms. Martin, the band parent treasurer resigned. He had emphatically stated that he did not want to handle money; he did not even have a password to the Charms accounting program. Although he might have to authorize purchases from the school's internal account or the Foundation account, he was not allowed to be the lone signer. Tuttle dealt with various complaints against Wilkins in the fall of 2012, which are outlined in the superintendent's letter of November 6, 2012, and discussed in the Preliminary Statement, above. Tuttle "felt like a group of parents were out to get him (Wilkins) and they were going to continue drumming up, pulling up things that happened in the past that may have already been dealt with until they did." Following the Palm Bay Police Department and Department of Children and Families investigation, in which the agencies found no violation to pursue, the media scrutiny started. After the media attention, "investigations" were taken away from Tuttle and handled by Ms. Debra Pace and Dr. Mark Mullins. Neither testified as to any complaints they were investigating. They went to Heritage to see what they could dig up. Due to the nature of some of the allegations in this proceeding, it is apparent that they were seeking one or more reasons to terminate Wilkins. Allegations In a letter dated November 6, 2012, the superintendent, Dr. Brian Binggeli, notified Wilkins of his intent to recommend his termination of employment to the School Board. Although the letter contained a number of allegations, most of those are not the subject of this proceeding following the ruling on the Respondent's Motion in Limine. The remaining issues are set forth below, under the appropriate section letter and title. Inappropriate Comments of a Sexual Nature to Students At paragraph 1, the superintendent alleges that Wilkins engaged in the following conduct: "You said to two students that a female member of the band played her woodwind instrument in a manner that looked like an act of oral sex (the exact language you used is too graphic to repeat in this public record)." Mistreatment of Students Paragraph 1 of this section concerns exercises performed by students and alleges that Wilkins engaged in the following conduct: You directed the student who is the "Sergeant at Arms" of the band to discipline students who you or your appointed student leaders in the band determined committed an infraction by taking the students to a separate room with no adult supervision to perform exercises utilized as punishment including push ups, sit ups, panther spreads, rocking chair, 6 inch killer, duck walks and the "Heritage Special". You admitted this practice and acknowledged that some students became upset (crying) because of the strenuous nature of the "punishment". You recently added the names of two female students to the discipline list because you stated they were not wearing sports bras. You readily admitted that you did not monitor the discipline list for fairness or consistency, and you kept no permanent record of who was disciplined or the level of intensity of the discipline sessions. Paragraph 2 of this section concerns bathroom use and water breaks and alleges that Wilkins engaged in the following conduct: You also denied students access to bathrooms and water during various band practices and events. On one occasion during the Extreme Makeover event in Titusville last school year a female student who was not allowed to use the bathroom at a McDonalds [sic] wet herself and was humiliated in front of her peers. Students interviewed indicated that the water breaks were regularly permitted after 45-50 minutes of strenuous physical activity at practices and performances. If someone was about to "pass out," you would allow them a drink of water. The restrictions you placed on student's [sic] access to water and bathrooms subjected them to the potential of physical harm. . . . G. Mishandling of Funds The superintendent alleges that Wilkins engaged in the following conduct relating to the handling of funds: You have violated School Board Policy 6610 and School Board Policy 6152 by maintaining two separate accounts for school based funds. One account was utilized for deposit of checks and was properly operated as a school based internal account. You improperly maintained a separate, unauthorized cash box in which cash collections from band students for band fees and other charges were kept with a separate receipt book. The cash collections were maintained by a single parent, and there was no governance by a Band Booster Board or official parent officer group over expenditures of the funds, other than your direction. When questioned about this separate account on October 16, 2012, you first denied knowledge of its existence. You then denied handling any money. You said that you had forgotten about the money box and the funds contained therein until earlier that morning, when you turned the money box over to the school bookkeeper. You then denied having any knowledge of how much money was in the cash box when you turned it in to the bookkeeper. You also denied several times any knowledge of a second receipt book, separate from the official district-issued receipt book used for the band's internal account. You later admitted the use of two separate receipt books, one for the internal account and a separate one for cash receipts. You also later admitted that you independently authorized the use of $50.00 for a cash prize at the September parent meeting. Then you were shown the cash register receipt which you said the former Band Treasurer signed when she turned the cash box over to you, but you were unable to explain the negative difference between the amount turned over to you by the former Band Treasurer, $800.35, and the amount you turned in to the bookkeeper earlier that day, $680.00. You were both evasive and dishonest about the lack of proper receipts for deposits and expenditures, and the shortage of cash versus receipts when the monies were turned in. You finally admitted that the cash was regularly spent in any manner you deemed necessary with no accountability. At the end of the October 16 interview your briefcase was examined and a clear plastic document holder with additional receipts and cash, $21.00, was found. When questioned[,] you claimed that was some money and receipts you also intended to turn in. District leadership later learned that you previously paid yourself a salary above and beyond the salary and supplement you have regularly received as the Band Director at Heritage High, out of the cash box, for summer band camp: $2,250 in 2011 and $3,000 in 2012. A review of cash fund collected, according to the receipt book, indicates that $4,551.00 was collected between July 16, 2012, and September 7, 2012. Receipts turned in show expenditures at B.J.'s, Sam's, Winn Dixie, etc, total $3225.27, leaving a difference of $1,325.73. With $680 submitted to the Heritage bookkeeper on 10/16, and an addition $21.00 recovered from your briefcase, at least $621.73 [sic] is unaccounted for. Additional Charge By letter dated May 3, 2013, the superintendent notified Wilkins of the additional grounds that involved B.O., a female student, for his termination. The Additional Charge was never presented to Petitioner for its consideration. Basis for Termination At page 4 of the November 6, 2012, termination letter, the superintendent sets forth the legal basis for terminating Wilkins' employment. That basis is set forth, below: Your actions as described in paragraphs A, B, C, D, E, and F above violate the Brevard Public School Code of Ethics, Policy 3210, and The Code of Ethics And The Principles of Professional Conduct of the Education Profession in Florida by failing to protect the students from conditions harmful to learning. You have jeopardized the students' mental and physical health and safety, by intentionally exposing students to unnecessary embarrassment or disparagement. These actions constitute misconduct in office and conduct unbecoming an instructional employee. (emphasis added). Your actions as described in paragraph G. are a violation of School Board Policy and rules of Heritage High School regarding the collection and expenditure of funds and further constitute misconduct in office. (emphasis added). These actions as described above provide just cause to terminate your employment as a teacher and cancel your Professional Service Contract under Section 1012.36(6)(a), Fla. Stat. Pursuant to the Collective Bargaining Agreement between the Brevard County School Board and the Brevard Federation of Teachers, you have a right to request a meeting with me to discuss my recommendation to terminate your employment. To request a meeting you must advise me in writing within five (5) days after receipt of this letter. If you wish to contest these charges you have the right to request a hearing. To request a hearing you must submit a written request to my office within fifteen (15) days after receipt of this letter. The Additional Charge fails to cite to corresponding provisions of the Florida Administrative Code or state the misconduct in office charge. Inappropriate Comments of a Sexual Nature to Students At section A, paragraph 1 of the termination letter, the superintendent alleged that Wilkins made graphic reference to "oral sex" to two students concerning the way a female student was playing her woodwind instrument. Petitioner neither alleged, nor offered proof at hearing, that the student about whom the alleged comment was made heard the comment. The Letter of Reprimand issued to Wilkins in September 2012 by Tuttle dealt with comments of a sexual nature. Petitioner contends that the alleged comment concerning "oral sex" was not known by district personnel until October 15, 2012, when Pace and Mullins began interviewing students. As such, it is an enhanced allegation that may be considered in this proceeding for disciplinary purposes. Those present at the time Wilkins is alleged to have made the offending comment in August or September 2012 were Wilkins; T.S., a male student; and H.J., a female student. T.S. first testified that Wilkins said, "It looks like she is doing something inappropriate." H.J. agreed and stated that Wilkins made no reference to "oral sex." H.J. merely took Wilkins' comment to mean that the student was playing the instrument wrong in that the mouthpiece was inserted too deeply into her mouth which could lead to injury if the band member fell while marching. Further, H.J. was not offended by Wilkins' comment that the student was playing the instrument inappropriately. However, H.J. did feel that her words were being twisted by Pace and Mullins. Upon further probing by Petitioner's counsel, T.S. testified that he had written in his statement that Wilkins said that it looked like the student was "sucking dick," because of the way the student held the mouthpiece in her mouth. T.S. admitted that he was frustrated by Pace and Mullins, because they badgered him about making a statement. When asked by Respondent's counsel whether the words "sucking dick" were his, T.S. stated, "that's what they (Pace and Mullins) told me." Whatever Wilkins said, T.S. was not offended by the comment. Wilkins denies making any statement to T.S. or H.J. about oral sex. He testified that he wanted T.S. and H.J. to "fix her playing position because it looks inappropriate." One of Wilkins' concerns was that if the student tripped with the mouthpiece in that position, she could injure herself. Based on the testimony of the witnesses, the evidence does not support the assertion that Wilkins made a sexual reference concerning the woodwind player. Mistreatment of Students Exercises At section B, paragraph 1 of the termination letter, the superintendent made several allegations against Wilkins concerning the use of exercises as a consequence for rule infractions, including when students fail to dress properly (sports bra). Other bands in the district such as Palm Bay High, Melbourne High, and Cocoa High, and other organizations at Heritage, such as cheerleaders, use exercises for this purpose and place officers in a position of responsibility over their members. As noted in the Preliminary Statement above, Tuttle previously dealt with issues concerning these exercises when he dealt with earlier complaints. Petitioner, however, contends that the issue of adult supervision of these exercises was not raised until J.V.Z., the sergeant-at-arms, was interviewed by Pace and Mullins in mid- October 2012 and thus the allegation may now be a matter for further discipline. There is no allegation that any student was ever injured performing these exercises. The issue of adult supervision of these exercises was in fact raised by D.S., a band parent, in her complaint to Tuttle. Tuttle dealt with D.S.'s complaint with Wilkins on October 1 and a Summary of Conference was issued on October 3, 2012. Various students and Wilkins testified as to the process and practice of using exercises as a consequence for rule infractions. Petitioner charged Wilkins with failure to supervise these exercises, because the exercises were conducted in a separate room. However, all the rooms in the band area have windows from ceiling to "door knob." Wilkins maintains that he always had a direct line of sight as to what was going on in the area where the exercises were conducted. The students who testified on this issue agreed that Wilkins always had a line of sight view of the officers supervising and the students performing the exercises. These students include J.V.Z., T.S., T.T., and S.O. Based on the testimony of the witnesses, the more credible evidence supports that there was adult supervision of this activity, as Wilkins always had a line of sight as to those performing the exercises and those supervising them. Bathrooms and Water The allegation at section B, paragraph 2 concerns student access to bathrooms and water. The general issue of student access to bathrooms and water was reviewed previously by Tuttle. There was no evidence that Wilkins denied any student access to a bathroom or water. However, with this allegation, Petitioner specifically charged Wilkins with denying a female student access to a bathroom causing her to wet herself on the bus ride home from the Extreme Makeover Event in 2010. Pace now acknowledges that S.O. is the student at issue. Petitioner made this allegation without confirming the name of the student, S.O., who was allegedly the one who wet herself. Even when S.O. provided district officials, including Pace, with a written statement contradicting the allegation prior to Petitioner's vote on the superintendent's recommendation to terminate Wilkins, the superintendent went forward with this unsubstantiated charge. S.O. testified that no one from the school district ever talked to her about the allegation. S.O. stated that she did not realize she had to use the restroom until after the bus was underway. However, she did not wet herself on the bus. Wilkins was not on the same bus as S.O. and never knew about S.O.'s need to use the restroom until he received the termination letter. Petitioner offered no testimony to contradict S.O.'s testimony at hearing. Based on the evidence presented, this allegation is unsupported in its entirety. Further, the allegation was based merely on rumor, and the District failed to follow-up when S.O. came forward. It is unclear why this allegation was even pursued in light of S.O.'s statements made prior to and the testimony of other witnesses at the hearing. Wilkins did not deny S.O. access to a bathroom causing her to wet herself. Mishandling of Funds A major focus of this hearing concerned Petitioner's allegations at section G of the November 6, 2012, termination letter. At this section, Petitioner alleges Wilkins mishandled funds in violation of School Board Policy 6610, relating to internal funds, and 6152, relating to student fees, fines, and charges. However, in order to understand how these rules apply in the instant matter, it is necessary to review several sections of the Internal Funds Procedure Manual referenced at School Board Policy 6610A, as well as School Board policies related to student and outside organizations. Internal v. External Funds Internal Accounts Procedure Manual In general, the Internal Funds Procedure Manual (referred to herein as the "Manual") outlines how "internal funds" are to be handled at the school level. Additionally, the Manual distinguishes between the handling of "internal funds" as opposed to "external funds." Internal Funds Defined Internal funds are defined in the Manual as follows: Internal Funds are defined as all monies collected and disbursed by school personnel within a school, for the benefit of the school, or a school sponsored activity. Funds relating to all school-sponsored functions or activities are to be accounted for within Internal Funds. (emphasis added). Internal Funds . . . are considered unbudgeted public funds under the control and supervision of the District School Board. All funds handled by District employees shall be included in and become part of Internal Funds, unless accounted for in the District level accounting system. . . . School Internal Funds shall be expanded [sic] for the purpose for which they were collected and in accordance with the provisions of this [M]anual. Florida Statutes, State Board Administrative Rules and the School Board of Brevard County Bylaws, Rules & Policies are the governing requirements and must be complied with by all and, in case of conflict, will take precedence over this [M]anual. (emphasis added). External Funds Defined No School Board policy mentions "external funds"; therefore, there is no conflict with any School Board policy as to how those funds are addressed in the Manual. External funds are defined in the Manual as follows: The monies arising from activities or projects conducted or sponsored by outside organizations, or for which such organizations are exclusively responsible, are monies of the organization and are not school monies, even though the activities may be held on school premises. These monies are not subject to deposit or accountability as school monies; such funds are not internal funds, unless they are donated to the school for specific or general purposes. (emphasis added). External funds may be raised by organizations under several different names, examples include "outside organization," "PTA," "parent or civic groups," or "booster parents." There is no differentiation in the School Board policy or the Manual as to how, or if, these groups differ in anything but name or whether they may be treated differently by the District or a school. For instance, there is no distinction between a "booster" organization and one that calls itself a "parent" organization. In particular, there is no requirement that an organization be a 501(c)(3) organization under the Internal Revenue Code. Often these groups are referred to in the Manual and in School Board policy as merely "outside," "parent," or "cooperative" organizations. Cooperative Organizations Cooperative organizations, under whatever name, are required to file annual reports with the school. "All organizations operating in the name of the school, which obtain monies from the public, shall be accountable to the District for receipt and expenditure of those funds, in the manner prescribed by the District." Section H(1) of the Manual states that "the District prefers that the cooperative (or support) organizations be accounted for in the benefitting school's internal funds." The Manual also recognizes, "if the cooperative organization chooses not to be accounted for in the school's internal funds, the organization is required to provide (annual) information to the District as outline below." (emphasis added). If an organization chooses not to account for all its funds in a school's internal account, there is no restriction in any School Board policy, the Florida Manual (discussed below), or the Internal Funds Procedure Manual on how that organization "holds" its funds, as opposed to accounting for them. For example, the cooperative organization may have its own bank accounts-–checking, savings, money market, etc. It may hold some funds in cash to use as a change or a petty cash fund. Or, it may place the funds with the Brevard Schools Foundation or in the school's internal fund. Section H of the Manual provides examples of types of cooperative organizations and requires an annual report from each that must be provided to the school (principal) by August 31 each year. A sample form is provided at A20 of the Manual. Information required includes financial information on all accounts, total funds raised, itemized expenditures, and total expenditures. Section H(4) of the Manual states that the "District recognizes and appreciates the service and assistance provided by the organizations. Cooperation between schools, the District, and cooperative organizations is encouraged." Further, section H(5) of the Manual provides that "it is not the intent of the District to regulate these organizations. However, completing the Cooperative Organization Annual Report complies with the requirement that these organizations are accountable to the District for receipts and expenditures since they operate in the name of the school." (emphasis supplied) These organizations must operate according to School Board Policies 9210 and 9211, relating to "Parent Organizations" and "Parent Organizations, Booster Clubs, and Other Fund-Raising Activities," respectively. Cooperative organizations are required to keep an itemized account of monies collected and expended verified by two signatures. This section also provides that an organization may not have cash withdrawals unless approved by the principal; however, reading section H as a whole, this would only apply to funds held in the internal account of the school over which the principal has responsibility, as it is not the intent of the District to regulate these organizations, if they choose not to be accounted for in the school's internal fund. In other words, the District recognizes that neither it, nor its employees, regulate cooperative organizations and that these organizations may have external funds. Section H(13) of the Manual specifically provides that cooperative organizations do not have to use the internal account, that the District does not intend to regulate these organizations, and that the principal would not have control over outside accounts, such as those at the Foundation, in a bank, or held in cash. The cooperative organization must retain backup documentation for each bank transaction. Again, it is contemplated that these organizations may have outside accounts, and there is no restriction on what type of account they may have or how they otherwise choose to hold their funds. Principals are required to have on file, for each cooperative organization, its bylaws, corporate charter, the Cooperative Organization Annual Report form, and Internal Revenue Tax Exemption Status Determination, if any, as there is no requirement for an organization to get a determination letter from the IRS. Section H(2) of the Manual merely indicates that these organizations "may" be recognized as exempt from income taxes by the IRS. Participation by Employees Neither School Board policy nor the Manual prohibits employees from handling funds. However, if a School Board employee, in his or her capacity as an employee, is involved in the collection of monies or merchandise for resale, the funds are defined as internal funds. For example, a teacher collecting money from students for a school-sponsored field trip would be required to deposit the funds into the internal account. Activities in which outside or cooperative organizations may engage do not preclude participation of a District employee, if the employee is not an agent or is not in pursuit of his or her responsibilities for the District. For instance, a teacher may work a concession stand at a football game as a member of the Parent Drama Organization, and the funds would remain those of the organization until the organization decided to donate them to the school's internal fund for the Drama Club, because the School Board employee is not working at the concession stand in his or her capacity as a School Board employee. The employee is working the concession stand as a member of the Parent Drama Organization--membership in which is encouraged by School Board policy. Financial and Program Cost Accounting and Reporting for Florida Schools Manual ("The Florida Schools Manual") The Florida Schools Manual provided by the Florida Department of Education addresses cooperative activities. These activities are defined as those "in which the school participates with outside groups such as the P.T.A. or booster clubs." These activities, which may be held on or off campus, will usually take the form of fund-raising events, such as carnivals and food sales. The Florida Schools Manual requires that the activities be approved by the principal and be beneficial to the students. Further, the manual requires that District procedures be followed to provide for appropriate accounting for funds and compliance with District policies and those provided in the Florida Schools Manual. Other than this paragraph, the Florida Schools Manual does not address "external funds" at all. School Board Policies Policy 6610 - Internal Accounts School Board Policy 6610 provides for the collection, receipt, safekeeping, and disbursement of funds to and from a school internal account. It specifically provides that wages or supplements may not be paid to any employee from internal funds, except as provided by the School Board. Fundraising by student organizations is addressed at section E of the policy. Funds received by a parent-teacher group or other cooperative organization are external funds, unless donated to the school. Therefore, this rule recognizes that when receiving funds from students at school, a parent-teacher group must provide a parent member, rather than a student or School Board employee, to receive the funds. Otherwise, if a parent-teacher group (outside or cooperative organization) uses a student or employee for the collection of funds at school, the funds must be deposited into the school's internal account. Depending on whether funds below $200 can be adequately safeguarded, bank deposits are required to be made within three to five business days of receipt by a school's internal fund. Policy 6152 - Students Fees, Fines, and Charges Depending on whether funds below $100 can be adequately safeguarded, this policy provides that student fees, fines, and charges collected by members of the staff are to be turned into the bookkeeper (for deposit into the internal account) within one to three business days of receipt. These charges include the cost of loss or repair to damaged equipment. The only other fees associated with the band program and authorized by the School Board are for uniform and instrument rental. Policy 5830 - Student Fund-Raising School Board Policy 5830 defines "student fund-raising" as student solicitation and collection of money in exchange for tickets, papers, or goods or services. This policy applies only to student organizations granted permission to solicit funds. Specifically not included in this definition is when a parent or other member of an outside organization collects the funds, even if students are doing something in exchange, such as a car wash. Further, this rule does not reference parent or other cooperative organizations supporting school or student activities; although it does reference the support schools can provide other community organizations, through activities such as a canned food drive. Policy 9210 - Parent Organizations School Board Policy 9210 states in pertinent part, that "The Board supports all organizations of parents whose objects are to promote the educational experiences of District students." (emphasis added). This policy requires that the principal approve any new parent organization prior to organizing. The policy also requires District employees to treat members of these organizations as interested friends and supporters of public education. The policy encourages staff members to join these organizations. Finally, School Board Policy 9210 provides that the School Board may withdraw its recognition of the organization. Policy 9211 - Parent Organizations, Booster Clubs, and Other Fund-Raising Activities Through this policy the School Board expresses its appreciation to these organizations, whose efforts enhance the educational experience of District students and which are not provided for by the School Board. School Board Policy 9211 outlines the expectations of the School Board for parent organizations, booster clubs, and other fund-raising activities. The expectations include: open membership to District staff and community members; cooperate with the principal and abide by School Board policies. These organizations are required to provide their by-laws to the principal. These organizations may not donate to another organization from their funds, unless the money was raised for that purpose (for instance, sponsoring a team in the Relay for Life Walk). School Board Policy 9211 requires that these organizations complete a facility use agreement annually. They are required to provide goals annually to the principal (part of the Cooperative Organization Annual Report). The principal (or a designee) is required to approve fund-raising activities. However, employees of the District are not permitted to sign on any group's checking account. And, these organizations may not use the District's sales tax exemption number. Policy 9230 - Gifts, Grants, and Bequests School Board Policy 9230 recognizes the Brevard Schools Foundation (the "Foundation") as the District's sole non-profit organization established to receive and disburse contributions to the schools. The policy states that all donations over $250 should be funneled through the Foundation, so that charitable tax documentation can be supplied to the donor. The policy recognizes that equipment may be purchased by a parent organization for use in a school or at an event. Although this policy does not address a school's internal account, it does not prohibit donations directly to the internal account from an outside organization. Summary Internal funds are those collected by students or District staff in the performance of the duties for the School Board. External funds are those funds raised or collected by the members of a cooperative organization. The funds are neither handled by students nor by District staff in the performance of their duties. While some of these funds may have to be remitted to the internal account for specific purposes, such as instrument or uniform rental in the case of a band, the cooperative organization can hold the remainder of the funds in any manner it deems appropriate. These funds may not be deposited into the internal account until the cooperative organization approves the donation. Section G Allegations The allegations at Section G may be broken down into several categories: collection, receipt, holding, and disbursement of funds; door prizes; payment for writing music and preparation of marching drills; and missing money. The Collection, Receipt, Holding, and Disbursement of Funds Petitioner alleges that Wilkins maintained two separate accounts for school-based funds. One Petitioner alleged was properly maintained as a school-based account, and the other was a separate unauthorized cash-based account with a separate receipt book. Therefore, Petitioner alleges Wilkins violated School Policies 6610 and 6152. As outlined below, Petitioner is mistaken. Pace was the primary witness for Petitioner on issues concerning the handling of funds. Pace based many of her conclusions about whether the Band Parents Association could maintain outside accounts on what Tuttle told her and her understanding of "booster" organizations. Tuttle testified that the Band Parents Association was no longer a "booster" organization; however, he recognized that he cannot control what the Band Parents Association does with its money-–whether the Association donates the funds to the school's internal fund or keeps it in external accounts. He can only control the money that "comes through my director and my bookkeeper." There is no distinction in School Board policy or in the Manual that a cooperative organization that has the word "booster" in its name is any different from a cooperative organization that does not. Therefore, Pace's conclusion that the Band Parents Association could not maintain outside accounts, including a petty cash fund, is incorrect. Even before organizational changes, the Band Parents Association at Heritage never used the word "booster" in its name. It complied with all the requirements in the Manual relating to cooperative organizations, as well as School Board policies relating to parent organizations. It obtained recognition from Tuttle and provided him with its by-laws. It obtained permission for all fund-raising activities. It maintained various accounts with the Foundation and at one time had its own bank account as well as a change and petty cash fund. Members of the Band Parents Association raised funds from fund- raising events, as well as handled money from students. The Band Parents Association issued monthly financial statements and filed the required Cooperative Organization Annual Report. Although Tuttle acknowledged that he cannot control what the Band Parents Association or other cooperative organization does with their money, Pace understands the interplay among the various adopted School Board policies and the Manual. She does not, however, understand the difference between "internal funds" and "external funds." As such, Pace does not have an appreciation for the District's policy articulated in the Manual that the District, including its personnel, cannot tell cooperative organizations, such as the Band Parents Association, how to handle their money. While it is true that School Board policy requires a cooperative organization to obtain a principal's permission to organize, once that permission is granted the principal may not "regulate" the organization beyond the authority set forth in School Board policy and the Manual, such as obtaining permission prior to holding a fund-raiser. There is no authority for a principal to require a cooperative organization to place all its funds in a school's internal account. To the contrary, the Manual recognizes that cooperative organizations, by whatever name they choose to use, may maintain outside accounts as long as the Cooperative Organization Annual Report is filed. Further, there is no requirement in School Board policy or the Manual that in order to maintain outside accounts an organization must receive a determination letter from the IRS. For these reasons, two receipts books are not only permitted, but required under School Board policy and the Manual. For audit purposes, the official receipt book may only be used for monies deposited into the internal account. Because of the other various accounts maintained by the Band Parents Association (Foundation, bank, and cash) and because of the requirement that any cooperative organization that does not use the internal account for all its funds must maintain proper records, a second receipt book was necessary. The various Band Parent Association accounts and the band's school internal account were always managed by the Band Parents Association, not by Wilkins. Until Ms. Martin resigned as treasurer of the Band Parents Association, Wilkins never handled money. The money he collected from students after Ms. Martin resigned, Wilkins properly receipted by using the official receipt book for the school's internal account. Based on the testimony and the exhibits entered into evidence, neither Wilkins nor the Band Parents Association did anything improper concerning the collection, receipt, holding, and disbursement of funds. Petitioner has failed to prove the allegations relating to these issues. Cash Box Petitioner alleges that Wilkins, rather than the Band Parents Association, maintained an unauthorized cash account maintained by a band parent for use at his sole discretion without any oversight by a booster or other parent group. Petitioner is mistaken. Tuttle received an anonymous letter in September concerning a cash box maintained somewhere with the "band." Even though he believed that the band and the Band Parents Association could not maintain outside accounts, he decided to wait until things calm down with other allegations against Wilkins before dealing with this issue. The Band Parents Association maintained its records online for use by students and parents. Further, the Band Parents Association provided monthly reports of expenditures and all its accounts, including the cash account, to parents and made those reports available to Tuttle, Ms. Lucas and Mr. McGrew (Mr. McGrew, Athletic Director, was the principal's designee for the Band Parents Association and other cooperative organizations). None of these District employees was interested in receiving these monthly reports. The monthly reports were kept in the band room at McGrew's request. Further, the Cooperative Organization Annual Report that the Band Parents Association filed with the school specified the funds in each account (internal fund, bank account, Foundation account, and cash). The Band Parents Association's ability to maintain a petty cash fund pursuant to School Board policy and the Manual is addressed above. Petitioner provided no evidence that this fund was used at Wilkins "sole discretion." Torsiello, Martin, and Wilkins testified as to the use of these monies by Wilkins and others. Wilkins, who had no physical possession of the funds until Ms. Martin resigned, always had to make a request for the use of these funds and other Band Parent Association funds (such as monies in the Foundation account). Wilkins' request for funds was not always granted; however, if it was, he was required to provide proper documentation in the form of an invoice or receipt just like everyone else. There was no question raised in this proceeding that the money in the cash fund was raised by the Band Parents Association for the benefit of the band. When Wilkins received the money from Ms. Martin, he locked it up. Although it is not clear when he got it, he eventually turned it in to the bookkeeper, Ms. Lucas. Whether he should have turned the money over to her or not, is still in question, because there was no vote by the Band Parents Association to donate that money to the internal fund, merely a direction by Ms. Martin to Wilkins. Moreover, it appears that the $680 he turned over to Ms. Lucas has not been available for use by the band since Wilkins turned it in. Ms. Lucas testified that almost eight months after Wilkins turned in the money, the $680 was still in the school's safe. She was still waiting for instructions on what to do with it. Ms. Lucas' actions are contrary to the requirement that all funds over $200 be deposited within three days in a financial institution. As of the date of her testimony, the band still did not have use of these funds for any purpose. Based on the testimony and the evidence in this proceeding, Petitioner proved that Wilkins did not turn in the money within the time prescribed by School Board policy; however, Petitioner failed to establish that that provision applies as Wilkins did not collect this money from students and, further, the money was not "donated" by the Band Parents Association as required by the Manual. Petitioner also failed to establish that the money in the cash box was for use by Wilkins at his "sole" discretion and without oversight from the Band Parents Association. Therefore, Petitioner has failed to prove that Wilkins did anything in violation of School Board Policy 6610 and 6152 concerning the cash box. Door Prizes Petitioner alleges that Wilkins independently authorized a $50 door prize from the Band Parents Association cash box. Petitioner is mistaken. The Band Parents Association, not Wilkins, authorized door prizes for every band parent meeting in order to increase participation. After the first year, parent attendance and participation at these meetings (where fundraisers for the band were organized) fell off. Even though the students were in attendance, their parents would sit in the car in the parking lot during the meetings. After the door prizes were authorized, parent participation increased from a dozen or so to over 100 at each meeting, as did parent participation at other events, including fund-raising activities and chaperoning trips. Based on the testimony of the witnesses, Petitioner has not proven that Wilkins, rather than the Band Parents Association, independently authorized any door prize. Payment for Writing Music and Preparation of Marching Drills Petitioner alleges that Wilkins paid himself "a salary above and beyond the salary and supplement you have regularly received as the Band Director at Heritage High School, out of the cash box, for summer band camp: $2,250 in 2011 and $3,000 in 2012." Torsiello and Wilkins testified that the payments were not for holding a band camp, but for writing music and preparing marching drills for the band to perform during football season. Although the payment was based on student attendance during band camp, it was not later increased when more students signed up for band following band camp and, consequently, adjustments had to be made to the music and drills. Tuttle testified that band directors are not paid for writing music or preparing marching drills. He acknowledged that other bands pay substantial fees for this service. He believed that Wilkins should have performed this service gratis since he possessed the special skills necessary to write and choreograph the band's music. He also testified, however, that he had no problem with Wilkins performing this service and being paid to do it by the Band Parents Association, so long as the school did not have to cover the fees. Although Tuttle stated that he did not know of the arrangement between the Band Parents Association and Wilkins, Torsiello testified that she discussed and exchanged email on this issue with Tuttle prior to the Band Parents Association entering into the agreement with Wilkins for the school's second year. Wilkins thought Tuttle was aware that the Band Parents Association paid him for this service, in part due to Tuttle's acknowledgment in his evaluation that he knew Wilkins was writing the shows, something that is not part of the duties for his position with the School Board, thus saving the school or the Band Parents Association money. Torsiello testified that she solicited bids and researched providers on the internet, but that Wilkins had the best price. The Band Parents Association approved payment to Wilkins to write the music and prepare the drill plans each year. Pace testified that she thought this practice was unethical, because of Wilkins position. However, Petitioner did not allege an ethics violation (i.e. self dealing) as it relates to Section G of the termination letter. Based on the testimony and the evidence presented, Petitioner has failed to prove that writing music and preparing marching drills was part of Wilkins official duties. As such, Petitioner failed to prove that the Band Parents Association paying Wilkins for this service violated School Board Policies 6610 and 6152, the only policies cited by Petitioner relating to these allegations. Missing Money Petitioner alleged that Wilkins was unable to explain the $120.35 shortage of funds from the cash box turned over to him by Ms. Martin, and the amount Wilkins turned in to Ms. Lucas, the school bookkeeper. Further, Petitioner alleged that after a review of the records, "at least $621.73 (of other funds) is unaccounted for." At hearing, Pace acknowledged that Wilkins did not steal any money. While Petitioner never attempted to present any evidence about the $621.73 that was "unaccounted for," there was testimony concerning the $120.35. Of that amount: $50 went to the door prize discussed above; $20 was used by the Band Parents Association for change for a car wash fund-raiser; $50 was used by the Band Parents Association for change for a rummage sale fund-raiser; and $.35 was found on Wilkins' desk. Based on the testimony of witnesses, Petitioner has failed to prove any Band Parents Association money or any other (internal account) money was stolen by Wilkins or otherwise unaccounted for. Wilkins' Demeanor Although Petitioner did not charge Wilkins with failure to maintain honesty in professional dealings under School Board Policy 3210, Petitioner accuses Wilkins of making contradictory statements and being evasive and less than truthful concerning money issues throughout section G. Based on his testimony at hearing and that of other witnesses, in particular Torsiello, Wilkins simply did not know how the funding system was put in place by the Band Parents Association, because he never handled money. The Band Parents Association did not even give him a password to access the computerized records, because it would have required giving him access as a site administrator and his knowledge of computers is limited. Further, Wilkins had a limited understanding of the various accounts and how they were used by the Band Parents Association. He, as well as Pace, Tuttle, and Lucas also had a limited understanding of the interplay between the various School Board policies relating to the various types of accounts and the Manual. In short, Wilkins did not know enough about the financial records to hold a meaningful conversation about money issues, and this lack of ability was confused by Petitioner with evasiveness. The May 3, 2013 Additional Charge B.O. stated that the events alleged in the Additional Charge occurred more than once and that they occurred prior to her initial complaint. Wilkins denied the allegations. In September 2012, B.O. told Tuttle and Mullins that Wilkins did not touch her. B.O. also told the Palm Bay Police Department that Wilkins did not touch her. On September 21, 2012, B.O. sent Ms. Andahar, a Department of Children and Families investigator, an e-mail in which B.O. stated that Wilkins did not touch or hug her. In an e-mail to Ms. Andahar from Ms. O., B.O.'s mother, dated October 9, 2012, Ms. O. informed Ms. Andahar that B.O. had told her "lately" that Wilkins has hugged her. Ms. Andahar forwarded the e-mail to Ms. Alford, head of security for the School District. However, testifying at hearing, B.O. does not remember telling her mother this. The School District never investigated the allegation. In an e-mail dated December 29, 2012, B.O. complained that no one would do anything about Wilkins, because he did not touch her. Based on the testimony of credible witnesses that "Mr. Wilkins is not a hugger," as well as B.O.'s admitted goal of facilitating Wilkins' termination, the evidence supports that Wilkins did not subject B.O. to the conduct alleged in the Additional Charge. Summary Following the initial complaint(s) in September 2012 and his response, Wilkins was placed on a Professional Development Assistance Plan (PDAP). Tuttle continued to receive complaints concerning matters that predated the PDAP after it was approved. He and Wilkins worked through those complaints which are documented in the two Summaries of Conference. Tuttle noted that Wilkins was implementing the changes contemplated by the PDAP and that he had received positive remarks from parents. However, "a group of parents were out to get him and they were going to continue drumming up, pulling things up . . . until they did." When the media "circus" started in October 2012, the "investigations" were taken away from Tuttle and assumed by Pace and Mullins. No complaints were produced on which these "investigations" were premised. From that point forward, the "investigations" were neither fair to Wilkins, nor were they based on fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Brevard County School Board, dismiss all charges against Respondent, James B. Wilkins. Further, it is RECOMMENDED that Petitioner, Brevard County School Board, reinstate Respondent, James B. Wilkins, with full back pay and benefits. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 November, 2013. COPIES FURNISHED: Wayne L. Helsby, Esquire Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Mark S. Levine, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Harold T. Bistline, Esquire Stromire, Bistline and Miniclier 1037 Pathfinder Way, Suite 150 Rockledge, Florida 32955 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 Dr. Brian T. Binggeli, Superintendent Brevard County School District 2700 Judge Fran Jamieson Way Viera, Florida 32940
The Issue Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
Findings Of Fact Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools. The statute under consideration is 20 U.S.C.A. Sec. 241(e): "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . . (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ." The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads: "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45." 116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance." Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of $325,000 are involved in this hearing. The following sequence of events are pertinent: On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." The date of December 1, 1974 is established by Regulation 116.26(b)(7). On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability. On December 1, 1974, Petitioner filed its report. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for School Systems, United States Office of Education to Honorable Ralph Turlington, stating: "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated." By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith on its part and substantial compliance is all that the statute and regulation require. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7). The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
