The Issue Whether Respondent, Hillsborough County School Board (School Board), erred in denying the Petitioner's request to consolidate its two charter contracts into one charter agreement.
Findings Of Fact Trinity School is a Florida corporation that owns and operates two charter schools in Hillsborough County, Florida. The two charter schools are known as Trinity Lower School for Children and Trinity Upper School. Trinity Lower School for Children provides education for 425 students in kindergarten through fitth grade. Trinity Upper School serves 225 students in sixth through eighth grades. The School Board is constitutionally and statutorily charged with the operation and supervision of all K through 12 public schools in Hillsborough County, Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.32(2) and 1003.02. The two Trinity charter schools are part of the public school system and are sponsored by the School Board. § 1002.33. Trinity School was formed by a group of educators and parents of children who had attended a private Roman Catholic School that was closing. In 1999, Trinity School submitted its application to form a K through eighth grade charter school. Its application was approved by the School Board, and Trinity began operation in 1999. Trinity School's population grew steadily from its inception and in 2003, Trinity School sought to purchase a building across the street from its campus. Ms. O'Dea, the founder, principal, chief executive, and educational officer for Trinity School, explained that Trinity School learned that it would be eligible for additional federal start-up money, if Trinity School divided its charter into two separate charters. By dividing the original charter and creating a new charter school for the middle school, Trinity School was able to obtain at least $450,000.00, in federal start-up funds which was used to help purchase a building across the street from the original school, grow the number of classes, as well as increase the number of programs and teachers. In 2003, Trinity School applied for a charter for the Trinity Upper School, which would serve sixth through eighth grades. The School Board approved the charter for the Upper School, and Trinity School was able to receive the federal start-up money. The Trinity Upper School began operating under its own charter in 2004. Although two separate charters, both Trinity Schools are operated by the same parent corporation, follow the same Bank Street School principles of educational development, and are located in the same location. Further, the record showed through the testimony of Ms. Difranco, Trinity School's director of finance, that the two charter schools "actually function as one school[,] [w]e share buildings; we share a media center; we share staff; we use one accounting system." On April 3, 2008, Trinity School wrote the School Board's representative to request a change in Trinity School's financial reporting to the school district. Trinity School's letter recognized that both schools operated "under the fiscal umbrella of The Tampa School Development Cooperation [sic], but the schools' finances are reported to the district separately." Trinity School advised the School Board representative that combining the schools' financial reports would benefit "both our accounting practices and the school district." On May 15, 2008, Ms. Hodgens, the School Board's supervisor of charter schools, wrote Ms. O'Dea: After consulting with the Department of Education regarding your request to combine Trinity School for Children and Trinity Upper School, the district has been advised that you are able to combine the two schools. I will present your request to the Hillsborough County School Board regarding the combination of the two schools during your schools' contract renewal process. On March 15, 2010, the School Board wrote Ms. O'Dea concerning the renewal of the charters. The School Board informed Ms. O'Dea that "Trinity School for Children/Trinity Upper is scheduled for Contract Renewal Review[,]" and requested that a list of materials be provided for the review. On June 28, 2010, Ms. Hodgens, referencing her earlier letter dated May 15, 2008, wrote Ms. O'Dea concerning Trinity School's request to combine the charters during the contract renewal period. Specifically, Ms. Hodgens wrote: After several conversations with district staff, there is no educational benefit for students by combining the two schools. Due to this fact, the Superintendent will not be making this recommendation to the School Board at the time of your contract renewal. Trinity School and the School Board brought their consolidation dispute before the Department of Education under section 1002.33(6)(h). On March 30, 2011, Dr. Eric Smith, the Florida Commissioner of Education, entered a Mediation Report of Impasse, stating that the parties had reached an impasse and that the matter could not be settled through mediation, pursuant to section 1002.33(6)(h). Ms. Difranco, who has been Trinity Schools' director of finance for the past two years, credibly testified that both schools functioned administratively as one school, but were required to file separate fiscal reports. Furthermore, she credibly testified that creating the two separate fiscal reports for each school, results in Trinity School's accountants and personnel having to perform additional duties of separating the relevant data by school. Ms. Difranco credibly testified that she had conducted a cost analysis comparing the costs of treating the two schools as separate charters with an estimated cost of operating under one charter. According to Ms. Difranco, the savings to Trinity School would be approximately $123,000.00, a year. The largest bulk of the savings would come from a reduction in the administrative fee Trinity School pays to the School Board to administer the charter schools. Ms. Difranco estimated that the administrative fee paid to the School Board would reduce by approximately $65,000.00, a year. The reason for the reduction in administrative fees received by the School Board is the legislature's enactment of section 1002.33(20)(a), Florida Statutes (2011). Section 1002.33(20)(a), in part, changed the formula used to calculate the administrative fee charged to charter schools by district school boards. This change in the formula for funding results in a reduction of the amount of money that the School Board will receive as administrative fees from Trinity School if the two charters are combined into one charter. The School Board, in making its decision about whether or not to grant the request to combine the two charters into one charter, considered the fact that it would receive less money from the administrative fees, if the two charters were combined. Both Trinity Schools have received from the State of Florida "A" ratings and are respected charter schools. Trinity Schools, however, have not been designated as "high-performing" charter schools by the Commissioner of Education, as defined by section 1002.331, Florida Statutes (2011). The reason that Trinity Schools’ two charters do not meet the statutory definition of "high-performing" charter school under section 1002.331 is due to past negative fund balances. The record, however, showed that Trinity Schools are on the verge of eliminating the financial difficulties. Specifically, the testimony showed that in 2009-2010 school year, Trinity Schools had a negative fund balance. However, the testimony showed through Ms. Difranco that for school years 2010-2011, and the current school year 2011-2012, that Trinity Schools have met the fiscal requirements.
The Issue An administrative complaint dated March 14, 1995, seeks termination of Karen Denbo’s annual contract of employment pursuant to Section 231.36, Florida Statutes, based on the following alleged falsifications of her Orange County Public Schools employment application: misrepresenting the reasons for separation from her last public school assignment; falsely stating her prior employment positions; and falsely identifying her immediate supervisor in her last public school assignment. The issues for disposition in this case are whether Karen Denbo committed the alleged violations and if so, whether discipline pursuant to Section 231.36, Florida Statutes, is appropriate.
Findings Of Fact From approximately 1966, until her suspension without pay by the Orange County School Board in March 1995, Karen Denbo was employed in various teaching and administrative capacities by school boards in Indiana, Georgia and Florida. She also worked on a grant project at the University of Florida, Gainesville, Florida, in 1993 and 1994. On July 6, 1994, Karen Denbo submitted an employment application to the Orange County Public Schools. Her signature appears below this printed statement on the form: I certify that all information given on this application is true and complete. I agree, if employed, to abide by all school board rules, regulations and policies, either published or in effect by usage, and all rules, regulations and laws of the State of Florida as may be required by Florida Statutes, Florida State Board of Education, and the School Board of Orange County, Florida. I understand that any misrepresentation, omission or incorrect statement of facts called for in this application is cause for a refusal to hire me or my termination if I am hired. It is understood that as a condition of employment, I must have on file an acceptable health certificate, tuberculin test and medical history form. (Petitioner’s Exhibit 1) The application includes, on the form and again on a separate work history sheet, this information regarding Karen Denbo’s employment in Brevard County: YEAR NAME/ ADDRESS OF SCHOOL GRADE OR SUBJECT NO. OF MONTHS PRINCIPAL/ SUPERVISOR REASON FOR LEAVING 86/92 Brevard Director/ 72 Jerry Budget cut Co. Public Coordinator Copeland backs Schools EEO/AA position Melbourne, Florida Guidance Counselor eliminated (Petitioner’s Exhibit 1) After an interview in August 1997, Ms. Denbo was hired by Orange County Public Schools as a counselor at Chickasaw Elementary School. Gail Pender was the principal who recommended Karen Denbo for the position. Karen Denbo’s duties included serving as a staffing coordinator for exceptional education services at the school. Sometime after it hired Karen Denbo, Orange County Public Schools learned that her employment history in Brevard County was substantially more complicated than was reflected on the small spaces provided on the application form. The whole truth would have taken pages to explain. Karen Denbo worked for the Brevard County School Board from August 6, 1986, until June 30, 1992, when her employment contract was not renewed. Her immediate supervisor for the first four years was Dr. Jerry Copeland, assistant superintendent for personnel. She worked in the district personnel office for five years with various, but similar duties: personnel specialist, administrator, EEO compliance officer, and coordinator of the Florida Educational Equity Act. Her formal position title for funding purposes was something general like “personnel specialist, administrative contract.” In the 1990-91 school year, Daniel Scheuerer was Karen Denbo’s immediate supervisor. When her position was deleted for the 1991-92 school year and the duties assigned to other district employees, Karen Denbo transferred to Challenger Elementary School as a guidance counselor in July 1991. Julia Bumgarner was principal at Challenger Elementary School and was Karen Denbo’s immediate supervisor for the 1991-92 school year. At the close of that school year Ms. Bumgarner advised Karen Denbo that she was not recommending her for reappointment for the next year because her performance was unsatisfactory. Mrs. Bumgarner provided a written evaluation to Karen Denbo, dated April 29, 1992, which stated: Due to the overall unsatisfactory performance rating as described herein, I am not recommending your reappointment for the 1992-93 school year. (Petitioner’s Exhibit 10, Bumgarner deposition) An interim evaluation dated February 19, 1992, had also been unsatisfactory and had warned that failure to show substantial improvement by May 1, 1992, would result in Karen Denbo’s not being recommended for a subsequent annual contract. Karen Denbo responded in writing to both evaluations. Included in those responses and included in her testimony at hearing was her assertion that the evaluations were part of the Brevard County School Board’s continued harassment of her in retaliation for her lawsuit against the school board and various individuals. The lawsuit to which Karen Denbo referred was initiated on August 16, 1990, with her charge of discrimination filed with the Florida Commission on Human Relations. The charge included her allegations that assistant superintendent, Jerry Copeland, sexually assaulted and harassed her. Subsequent charges of retaliation were filed, as well as follow-up lawsuits in the U.S. District Court for the Middle District of Florida. The lawsuits named as defendants the School Board of Orange County, Jerry Copeland, Superintendent Abraham L. Collinsworth, and Daniel T. Scheuerer, individually and in their official capacities. Karen Denbo filed a third charge of discrimination with the Florida Commission on Human Relations on February 11, 1993, and filed another federal lawsuit thereafter. All of the claims by Karen Denbo against the Brevard County School Board were settled with a general release dated June 30, 1993. The settlement agreement provides, in pertinent part: The Defendants will pay Plaintiff the sum of $325,000 and agree to the following conditions: 1) annual reviews for 91 and 92 will be removed from present file and placed in file to be maintained by School Board Attorney; 2) annual reviews will be prepared by last supervisor for 87, 88, 89 and 90 to reflect satisfactory performance; 3) Indiana University placement form will be filled out by Copeland and reflect satisfactory performance. (Petitioner’s Exhibit 8) In abbreviating her Brevard County work history on the Orange County Public Schools application, Karen Denbo relied, in part, on the settlement agreement. Jerry Copeland, her supervisor for four of the six years, was required to provide a satisfactory performance statement for Karen Denbo’s Indiana University placement file. She knows that he was not her “immediate supervisor” for the final two years, but the more recent two annual reviews, clouded by the pendancy of the lawsuits and Karen Denbo’s claims of retaliation, were removed from her personnel file. Karen Denbo also relied on her understanding that in both June 1991 and June 1992 her positions were eliminated for budget reasons. This understanding was bolstered by her knowledge of a newspaper article dated August 6, 1992, reporting that Karen Denbo was “one of the 88 annual-contract teachers who lost their jobs to budget cuts.” (Respondent’s Exhibit 4) The same article quoted the teachers’ union president as stating that the job cut was to make sure Karen Denbo was out of the system. By fall 1992, Karen Denbo began having negative interactions with her Chickasaw Elementary School principal, Gail Pender, in Orange County. Karen Denbo attributes the problems to Ms. Pender’s finding out that Karen Denbo was the person who had the charges against the School Board of Brevard County. In December 1994, the Orange County School Board placed Karen Denbo on relief duty with pay, pending investigation into allegations of falsifications of her application. She was suspended without pay in February 1995, and was recommended for termination on March 14, 1995. The administrative complaint by Superintendent, Dr. Donald Shaw alleges: The Respondent, Karen Denbo, at all times material to this Administrative Complaint, was employed as a guidance counselor by the School Board of Orange County, Florida. That Respondent, Karen Denbo, holds an annual contract of employment with Petitioner. That on or about July 6, 1994, Respondent, Karen Denbo, did falsify her Orange County Public Schools employment application which is just cause for termination of Respondent’s employment contract with the School Board. The falsifications are: Misrepresenting the reason for separation from her last public school assignment. Falsely stating her prior employment positions. Falsely identifying her immediate supervisor in her last public school assignment. That actions by the Respondent, Karen Denbo, constitute just cause for termination of her employment agreement with the School Board, for reasons including but not limited to gross insubordination, willful neglect of duty, misconduct, a violation of the code of ethics for professionals in the education profession in the State of Florida and a violation of the terms of her employment with the School Board of Orange County, Florida. Such grounds are sufficient to sever the contract status of Respondent and to terminate her employment with the School Board of Orange County, Florida. When Karen Denbo stated on her employment application that her position was eliminated through budget cuts, this was the truth, if not the whole truth. She had ample basis to assume that her positions for 1991-92 and 1992-93 were eliminated. For example, and in addition to the news article and statements of her union president, Karen Denbo had a copy of this February 25, 1993, letter from Howard Hickman, Director of Personnel Services, Brevard County School Board, to the superintendent of an Indiana school district who was seeking a reference: Dear Superintendent Fulk: Please find my response to your recent letter of inquiry regarding the employment history of Ms. Karen Denbo with the School Board of Brevard County, FL. Ms. Denbo began her employment with the School Board of Brevard County on 08/06/86 as a Compliance Officer/Personnel Specialist. Her primary responsibilities were to represent the school district in issues of compliance and equity. Due to budget consideration, the position of Compliance Officer, along with several other district positions, was eliminated for the 1991-92 school year. Compliance and equity issues were assigned to other district employees. Ms. Denbo transferred to Challenger Elementary School as a guidance counselor in July, 1991. Based upon staffing priorities at Challenger 7 Elementary School, Ms. Denbo was not reappointed for the 1992-93 school year. (Respondent’s Exhibit 1) In his deposition, Howard Hickman responded to questions by counsel for the Orange County School Board: By Mr. Kruppenbacher: Q. Mr. Hickman, am I correct that in School Board language, or School Boardese...the non- renewal of an annual contract teacher is not considered to be disciplinary action but is considered, to be the School Boards’ right to simply non-renew? A. That would be my understanding. (Petitioner’s Exhibit 9, p. 21, ll. 7-16) Karen Denbo’s designation of Jerry Copeland as her “principal/supervisor” was likewise a justified over- simplification. He was her supervisor for four years, and the settlement agreement super-imposed him above or replaced, the two other subordinate supervisors whose roles were clouded by the charges of retaliation. Jerry Copeland’s employment recommendation, in Karen Denbo’s possession and attached to her Orange County School Board application, is consistent with his role: July 28, 1993 EMPLOYMENT RECOMMENDATION RE: Ms. Karen K. Denbo To Whom it May Concern: Ms. Karen K. Denbo was employed on August 6, 1986 as Compliance Officer. She bravely accepted the challenge of this assignment even though her prior experience was one of school based administration and/or guidance/student services. To accept this assignment with such confidence was appropriately interpreted by this agency as being an individual who is academically competent, professionally aggressive and with a full capacity to grasp a new job which is controlled by regulations, statutes, administrative rules, board rules, labor contracts, case law, past practice, and a list of other detailed items to numerous to mention. During this time of service, Ms. Denbo has responded to more employment charges and complaints on behalf of the district in a shorter period of time than all of her predecessors combined. To date, every case has been dismissed without a finding of probable cause, settled without economic impact on the district or referred to another agency due to circumstances beyond the control of the school system. Ms. Denbo has an unusual gift for the written word. These materials contain, at times, an unbelievable degree of materials requiring hours of analytical compilation. It is, therefore, with pleasure that I offer this unequivocal employment recommendation. To find these talents in an individual in my opinion, is unique and offers a very promising opportunity for your agency. Sincerely, Jerry P. Copeland Assistant Superintendent Personnel Services (Petitioner’s Composite Exhibit 1) Finally, the descriptions of Karen Denbo’s positions in Brevard County on her application form are plainly descriptions of her functions, rather than formal position titles. She was a guidance counselor and revealed that; she also was an EEO/affirmative action compliance officer, and based on her own uncontroverted testimony and the several recommendations attached to her application, she directed the Brevard County School Board’s compliance in those areas. There is no evidence that she was one of several individuals performing the same function under a separate “director.”
Recommendation BASED on the foregoing, it is, hereby RECOMMENDED: That the School Board of Orange County issue a Final Order dismissing its charges against Karen Denbo and providing back pay from the date of her suspension without pay through the end of the 1994-95 contract year. DONE AND ORDERD this 27th day of June, 1997, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Kruppenbacher and Associates, P.A. Post Office Box 3471 Orlando, Florida 32801-3471 James G. Brown, Esquire Brown and Green, P.A. Post Office Box 3108 Orlando, Florida 32802-3108 G. Ware Cornell, Esquire Victoria Park Centre, Suite 204 1401 East Broward Boulevard Fort Lauderdale, Florida 33301 Thomas H. Yardley, Esquire Building C2 1970 Michigan Avenue Cocoa, Florida 32922 Dr. Donald Shaw, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether Petitioners, Renaissance Charter School, Inc., and Renaissance Charter School at Tradition, can be required by the St. Lucie County School Board ("School Board") to offer regular school busing to all eligible charter school students residing more than two miles from the charter school. Whether Petitioner, Renaissance Charter School at Tradition, breached its contract with the School Board by not providing transportation to students in accord with the parties' charter school contract and Florida Statutes. Whether School Board Policies 3.90 and 8.31 constitute an invalid exercise of delegated legislative authority. Whether the School Board has charter busing policies which amount to illegal, unadopted rules under chapter 120, Florida Statutes (2014).
Findings Of Fact The Parties Renaissance Charter School, Inc., is a not-for-profit Florida corporation. Renaissance Charter School, Inc., currently owns and operates two charter schools in St. Lucie County: Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. The School Board is the "sponsor" of Renaissance Charter School at Tradition within the meaning of the charter school statute, section 1002.33. The School Board's Approval of Renaissance Charter School at Tradition's Charter Application and Charter Contract On August 1, 2012, a charter school application was submitted to the School Board by Renaissance Charter School, Inc., on behalf of Renaissance Charter School at Tradition. During the charter application and approval process, the School Board consistently contended that charter schools in St. Lucie County are required by law to offer regular school busing to all eligible students residing more than two miles from their charter school.1/ On September 17, 2012, the School Board's Charter School Evaluation Team recommended approval of the Renaissance Charter School at Tradition charter school application, subject to the charter school providing "a viable transportation plan that meets statutory requirements once a school site has been finalized." On May 14, 2013, the School Board, at a regular board meeting, unanimously approved its charter contract with Renaissance Charter School, Inc., for Renaissance Charter School at Tradition. The Renaissance Charter School at Tradition charter contract became effective upon approval by the School Board at its May 14, 2013, meeting. The term of the charter contract is five years, commencing on the first day of the 2013-2014 school year, and ending on June 30, 2018. The School Board and Renaissance Charter School at Tradition have a valid and binding charter school contract that is still in full force and effect. Applicable Transportation Provisions of Renaissance Charter School at Tradition's Charter Contract Section 6 of the charter contract between the School Board and Renaissance Charter School at Tradition, which governs student transportation, provides as follows: SECTION 6: TRANSPORTATION Cooperation Between Sponsor and School: The School shall provide transportation to the School's students consistent with the requirements of Part I.E. of Chapter 1006, and Section 1012.45, F.S. The School may contract with the Sponsor to provide transportation service. Reasonable Distance: Transportation will not be a barrier to equal access for all students residing within the District, and the School shall provide transportation to all students residing in the District subject to the limitations in this Section 6.B. Students residing within two miles of the school will be expected to furnish their own transportation, except that certain students, as specified in Section 1006.21, F.S., for example students with disabilities and elementary grade students who are subject to specified hazardous walking conditions, must be provided transportation, regardless of the distance from the school. For students who are geographically isolated, or who are unable to be transported on a school bus due to disabilities, the School will offer reimbursement to eligible parents residing within the District. This parental reimbursement shall be equivalent to the monies provided by the Sponsor to the School for transportation of the student. At the time of student application for enrollment, the School shall be responsible for informing parents of the transportation options available, including the reimbursement amount available in lieu of provided transportation to qualifying students. Compliance with Safety Requirements: The School shall demonstrate compliance with all applicable transportation safety requirements. Unless it contracts with the Sponsor for the provision of student transportation, the School is required to ensure that each school bus transporting the School's students meets applicable federal motor vehicle safety standards and other specifications. The School agrees to monitor the status of the commercial drivers' licenses of each school bus driver employed or hired by the School (hereafter "School Bus Drivers") unless it contracts with Sponsor to provide such services. The School will provide the Sponsor, via the Charter Schools Support Department, an updated list each quarter of all School Bus Drivers providing commercial driver's license numbers, current license status and license expiration dates. Fees: The School may not charge a fee for transportation to which the student is entitled pursuant to state law. The School shall reimburse parents for parent-provided transportation costs if the student is legally entitled to transportation. Private Transportation Agreement: In the event the School will be contracting with a third party to provide transportation to its students, the School shall provide a copy of the transportation contract to the Sponsor at least sixty (60) days prior to the initial day of classes. Reimbursement for School Funded Transportation: The rate of reimbursement to the School by the Sponsor for transportation will be equivalent to the reimbursement rate provided by the State of Florida for all eligible transported students. Section 1 B) 4) of the charter contract further provides: 4) Statutory Requirements: The Parties will comply with Section 1002.33, F.S., and any regulations adopted by the State Board of Education or other state agency, or amendments thereto, pertaining to charter schools, and all applicable federal, state and local laws pertaining to civil rights and student health, safety and welfare. If any conflict exists between the provisions of the approved application or this Charter and any specific provision of law, then the provisions of the law shall prevail. The School shall be bound by amendments to applicable statutes, rules, and regulation, as any such amendments take effect. Unless specifically incorporated herein, the policies of the Sponsor do not apply to the School. However, if the School is statutorily required to have a policy and does not, the Sponsor's policy shall be deemed to apply. Students of Renaissance Charter School at Tradition and the School's Transportation Policy For a student to attend Renaissance Charter School at Tradition, their parents must apply during an open enrollment period, and a lottery system is used to determine who may attend. Parents whose child is selected through the lottery to attend Renaissance Charter School at Tradition are given a certain number of days to accept or decline the seat. Then the process starts over again until all seats are filled or there are no other students on the list. Renaissance Charter School at Tradition opened for the 2013-2014 school year as a K-6 school with 695 enrolled students. Projected enrollment for the 2013-2014 school year was 661 students. However, before the 2013-2014 school year began, projected enrollment had increased to 745 students. Renaissance Charter School at Tradition opened for the 2014-2015 school year as a K-7 school with 890 enrolled students and an enrollment cap of 945 students. For the 2015-2016 school year, Renaissance Charter School at Tradition plans to open as a K-8 school with projected enrollment of 1,075 students. For the 2016-2017 school year, Renaissance Charter School at Tradition plans to open as a K-8 school at maximum capacity of 1,145 enrolled students. The only "A" graded schools in St. Lucie County, Florida, for the 2013-2014 school year were Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. There is a waiting list for grades K-3 at Renaissance Charter School at Tradition. Parents of students enrolled at Renaissance Charter School at Tradition recognize that Renaissance Charter School at Tradition provides their children with a unique educational opportunity. Parents of students enrolled at Renaissance Charter School at Tradition recognize that the decision to enroll their children at Renaissance Charter School at Tradition is a personal choice and not a privilege. Parents of students enrolled at Renaissance Charter School at Tradition are active partners in the education of their children. Renaissance Charter School at Tradition does not provide regular school busing to its students who reside more than two miles from the charter school. Renaissance Charter School at Tradition re-evaluates its transportation policies on a yearly basis. Parents of students are informed that Renaissance Charter School at Tradition does not offer regular school busing in informational meetings before they apply for their child to attend the school. Parents of students enrolled at Renaissance Charter School at Tradition sign a "Parent Obligation Form," contractually obligating themselves "[t]o provide transportation to and from the school for my child." Parents are required to sign the "Parent Obligation Form" every year as part of the enrollment process. The transportation policy of Renaissance Charter School at Tradition, which is given to all parents upon enrollment, apprises parents that the school does not offer regular school busing to students, but that the school agrees to provide "transportation or an equivalent reimbursement" to students in certain legally-defined circumstances. The transportation policy of Renaissance Charter School at Tradition provides as follows: Student Transportation Policy Renaissance Charter School at Tradition's [sic], is and always has been, fully committed to ensuring that transportation will not be a barrier to equal access for all students residing within the District. To date, there are more students attending our newly-opened charter school than was projected for our first year. Although our school does not presently offer busing as a means of school transportation, we are in the process of helping put together parent carpools for those parents who want their children to share rides to and from school. Moreover, transportation, or an equivalent reimbursement, will be provided to any student who falls under any of the following categories [taken from Florida State Statute 1006.21]: Any student in grades K-8 who does not otherwise have access to an adequate educational facility or opportunity. Any student in grades K-6 who are subjected to a hazardous walking condition as defined in s. 1006.23 while en route to or from school. Any student in grades K-8 who have a documented transportation need in their IEP. Any student in grades K-8 who are pregnant, student parents, and/or the children of these students if a teenage parent program is presented at the school. If you feel your child falls within one of the categories listed above, please notify the front office and we will work with you on a case-by-case basis. The School Board rejected the transportation policy of Renaissance Charter School at Tradition because it does not provide for the regular school busing of all students residing more than two miles from the charter school. Renaissance Charter School at Tradition's failure to provide regular bus transportation to all students residing more than two miles from the charter school does not constitute a barrier to equal access to all students. At the hearing, no credible and persuasive evidence was presented that any students lack equal access to an adequate educational facility or opportunity. No evidence was presented that any students are subject to hazardous walking conditions while en route to or from the charter school. There is one student who enrolled on January 20, 2015, who has a transportation need documented in their individual education plan, but the child's parent has chosen to provide transportation. No evidence was presented of any students who are pregnant or who have given birth to any children. Renaissance Charter School at Tradition opens at 6:00 a.m. and closes at 6:00 p.m. There are before-and-after- care private buses that take students off-site to other organizations, such as to karate and the Boys and Girls Clubs. Renaissance Charter School at Tradition also encourages parents' use of carpooling their children to and from school. The School Board's position is that carpooling is not a viable transportation option for the charter school. At Renaissance Charter School at Tradition, one parent has decided to run a private busing service, but no other parents have chosen to use the services of that private bus.2/ The Charter Contract and Transportation Policy Do Not Require Petitioners to Transport by Regular School Bus All Students Residing More Than Two Miles From the Charter School The parties' dispute centers on whether the School Board can require Renaissance Charter School at Tradition to offer regular school bus transportation, to and from the school, for all students residing more than two miles from the school. The interests of Petitioners are directly and substantially affected by the School Board's attempt to require that Petitioners transport by regular school bus all students residing more than two miles from the charter school. The parties unsuccessfully mediated their dispute before the Florida Department of Education. The persuasive and credible evidence adduced at hearing demonstrates that Renaissance Charter School at Tradition has not breached its charter contract with the School Board by not providing regular school busing to all students residing more than two miles from the charter school. The charter school contract between the School Board and Renaissance Charter School at Tradition does not require Renaissance Charter School at Tradition to provide regular school busing to all students residing more than two miles from the charter school.3/ Renaissance Charter School at Tradition's transportation policy is consistent with its charter contract with the School Board. The School Board's Inequitable Treatment of Charter Schools The persuasive and credible evidence adduced at hearing demonstrates that the School Board's treatment of Petitioners is inequitable. The School Board has a "no transportation zone," which geographically encompasses approximately one-third of the county. Students of traditional public schools residing in the "no transportation zone" are not provided regular school bus transportation to and from school. The School Board also has a "limited transportation zone." Students of traditional public schools residing in the "limited transportation zone" are provided regular school bus transportation, but only if they attend a school located within the "limited transportation zone." The "no transportation zone" and "limited transportation zone" encompass approximately one-half of St. Lucie County. At the hearing, the School Board conceded that it has different policies for the transportation of traditional public school students and students at magnet schools and attractor schools. The School Board encourages the use of carpools for students of traditional public schools. The School Board's Alleged Unadopted Policy The School Board, in paragraph 20 of its counter- petition filed in Case No. 14-3267, specifically states: "The School District's adopted policy is that students who live more than two miles from their assigned school shall be provided school bus transportation." (emphasis added). The persuasive and credible evidence adduced at hearing demonstrates that the School Board interprets Florida law and its adopted School Board Policies 3.90 and 8.31 to require that all existing and future charter schools within the county provide regular school bus transportation for all students residing more than two miles from the charter school. The persuasive and credible evidence adduced at hearing demonstrates that the School Board does not have an unadopted policy that all charter schools within the county must provide regular school busing to all students residing more than two miles from their charter school. The School Board's Adopted Policies The School Board has two adopted policies, School Board Policy 3.90 (dealing with charter schools) and School Board Policy 8.31 (dealing with student transportation). The interests of Petitioner are directly and substantially affected by these policies.4/ Both School Board Policies 3.90 and 8.31 were properly noticed pursuant to chapter 120, Florida Statutes. Neither School Board Policy 3.90 nor 8.31 is specifically incorporated into the charter agreement between the School Board and Renaissance Charter School at Tradition. Moreover, according to the School Board, School Board Policy 8.31 applies only in the absence of a viable charter school transportation policy. The persuasive and credible evidence adduced at hearing fails to demonstrate that the School Board and Renaissance Charter School at Tradition mutually agreed that School Board Policy 3.90, or 8.31, apply to the charter school.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the welding course/program offered by the college. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease in funding. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts which would be considered for planning the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the directors completed the reviews of their programs, Dean Tesinsky reported the findings to Dr. Samuels. Ultimately, such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. Concurrent with the planning performed incidental to the expected budget cuts, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but for which large numbers of students had expressed demand. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Welding program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Welding program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 22, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the welding program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 8, 11, 13 through 21 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 22, 1991; otherwise rejected as a conclusion of law, not fact. It has been concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 42. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $57,133. With the following clarifications, paragraph 10 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 12 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
The Issue Whether Petitioner, Volusia County School Board, has good cause to non-renew Respondent?s charter for the Volusia Elementary Charter School as set forth in Petitioner?s Notice of Action to Not Renew the Charter for the Volusia Elementary Charter School Inc.
Findings Of Fact On June 24, 2008, the School Board and Boston Avenue entered into the School Board of Volusia County, Florida Charter for the Academies of Excellence, Inc. (the “Charter”). The Charter, which was a contract between the parties, was effective from July 1, 2008 through June 30, 2012. Pursuant to the Charter, Boston Avenue operates and maintains a pre-kindergarten through fifth grade charter school in DeLand, Florida. The school, which is a Florida public school, opened at the beginning of the Volusia County School District?s (“District”) 2008-2009 school year. The Charter provides that Boston Avenue is a unit of the District, is subject to the supervisory jurisdiction of the School Board, is accountable to the School Board for performance to the extent provided by law, and is subject to the laws of Florida and the rules of the State Board of Education. Florida public schools are subject to “a statewide program of educational assessment that provides information for the improvement of the operation and management of the public schools . . . .” School assessment is largely the result of student achievement assessment, including Florida Comprehensive Assessment Test (“FCAT”) scores, and measures of effective school management. § 1008.22(3), Fla. Stat. The Commissioner of Education is required to issue annual reports that describe student achievement in the state, each school district, and each school. The annual report assigns a grade to each school based on the results of the student achievement assessment scores, student learning gains, and improvement of the lowest 25th percentile of students in the school in reading and mathematics. Section 1008.34(1) establishes the grades and their meaning as follows: “A” - schools making excellent progress. “B” - schools making above average progress. “C” - schools making satisfactory progress. “D” - schools making less than satisfactory progress. “F” - schools failing to make adequate progress. Schools having an enrollment that is less than the minimum sample size do not receive a school grade. During its first year of operation in the 2008-2009 school year, Boston Avenue enrolled fewer than 100 students, which was less than the minimum sample size. It was therefore too small to receive a school grade. 7. For the 2009-2010 school year, Boston Avenue received a grade of “F.” For the 2010-2011 school year, Boston Avenue received a grade of “D.” For the 2011-2012 school year, Boston Avenue received a grade of “F.” Section XI.C.(1) of the Charter provides, in pertinent part, that “[t]his Contract may be renewed provided that a program review demonstrates that the criteria in section 1002.33(7)(a), Florida Statutes, have been successfully accomplished and that none of the grounds for non-renewal established by section 1002.33(8)(a), Florida Statutes, has been documented.” Dr. Parker took the position as the Board?s Coordinator of Accountability and Evaluation in January 2011. When she came to the job, the charter school program review process used a generic template that was applied to every charter school in the district, regardless of whether the areas of review listed on the template were applicable to a specific school?s charter. Dr. Parker modified the template to make it unique to each charter school, using the criteria of each charter to guide the language and structure of the template. Despite the change in the template, which is nothing more than a method of recording results, the charter review process remained essentially unchanged. In October 2011, the District conducted a program review of Boston Avenue to determine if the Charter should be renewed. On December 13, 2011, the Office of Program Accountability and Evaluation submitted its Boston Avenue Charter School Charter Review (“Review”) to the Superintendant of Schools. The Review covered the following topic areas: Curriculum and School Improvement Services, including the 2011 Annual Accountability Report; Facilities Services, Financial Services, including Finance, Budget and Insurance, and Food Services; Human Resources; Technology Services, including Student Accounting Services; Safety and Security; and Transportation Services. Each topic area had contract subtopics that were generally tied to specific Charter requirements and applicable statutory standards. The Review identified a number of areas in which Boston Avenue was deficient. Of the 80 individual contract subtopics, the Review identified 46 that were met, 19 that were partially met, 10 that were not met, and five that were not applicable. On March 22, 2012, Respondent submitted a Charter Review Response and Supplemental Appendix as its response to the December 13, 2012 Review. The evidence suggests that staff did not review or use the Charter Review Response and Supplemental Appendix in its deliberative process leading up to the decision to recommend non-renewal to the School Board. In March 2012, the School Board?s office of Curriculum and School Improvement Services and office of Student Transportation Services prepared supplemental reports to update the status of those subtopic areas that were previously determined to not meet the areas of review, and prepared revised charts that outlined their current status. It was suggested that the additional information set forth in the revised charts should not be considered in this proceeding, as it was generated after the normal review process was concluded. Given the de novo review afforded under the Administrative Procedures Act, the additional information and supplemental reports are pertinent to the consideration of whether the Charter should be renewed, and are considered herein. By its terms, the Charter expired on June 30, 2012. The vote to not renew the Charter was taken on March 30, 2012. A draft version of the Notice was provided as part of the agenda of the meeting. The meeting was attended by, among others, counsel for Boston Avenue and Boston Avenue Principal Nichole Gaw. After a short presentation by its staff and counsel, the School Board voted 5-0 to approve the school superintendant?s recommendation that the Boston Avenue Charter not be renewed. Counsel for Respondent understood the effect of the vote, and indicated to Petitioner that “[w]e will make a decision [whether to request a hearing] within the 14-day time.” The Notice was signed and executed on Friday, March 30, 2012. Petitioner made reasonable efforts to provide the signed Notice to Respondent on March 30, 2012, which efforts included an attempt to hand-deliver the Notice before 5:00 p.m., on that date to the Boston Avenue school building and to the law office of Respondent?s counsel. Both buildings were locked. In addition, efforts to electronically send the Notice to Petitioner were made over the weekend. Although reasonable efforts to effect delivery were made, the evidence is insufficient to prove that Respondent received actual written notice of Petitioner?s decision to not renew the Charter until an envelope containing the Notice was hand-delivered to an authorized agent of Respondent on Monday, April 2, 2012. Monday, April 2, 2012, was 89 days prior to the June 30, 2012, expiration of the Charter. Grounds for Non-Renewal 1. Failure to Meet the Requirements for Student Performance Stated in the Charter The Notice alleged that Respondent failed to meet the objectives for student performance established in the Charter. The Charter included the following measures of student performance: FCAT Testing - Academic Progress Section III.B.(2) of the Charter provides that: Student academic progress will be measured by a growth model as evidenced by standardized tests. Student academic progress will be measured by FCAT under the following standards. The student will have improved his or her FCAT Achievement level one year to the next; or The student will have maintained his or her achievement level as a 3, 4 or 5 from one year to the next; or The student will have remained within FCAT Achievement levels 1 or 2, but will have demonstrated more than one year?s growth on the FCAT developmental scale, applying the Department of Education?s measurement of growth.1/ Reading The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Reading as follows: Fourth Grade FCAT Reading 11.11 percent of fourth-grade students improved their FCAT reading achievement level one year to the next, and an additional 8.33 percent maintained a level five -- the highest level achievable. 80.56 percent of fourth-grade students failed to improve their FCAT reading achievement level one year to the next. 59% of fourth-grade students maintained their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 41% of fourth-grade students failed to maintain their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 42% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 58% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Fifth Grade FCAT Reading 4.76% of fifth-grade students improved their FCAT reading achievement level one year to the next, and an additional 14.29% maintained a level five - the highest level achievable. 80.95% of fifth-grade students failed to improve their FCAT reading achievement level one year to the next. 90% of fifth-grade students maintained their FCAT reading achievement level as a three, four, or five from one year to the next. 10% of fifth-grade students failed to maintain their FCAT reading achievement level as a three, four, or five from one year to the next. 29% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 71% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Math The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Math as follows: Fourth Grade FCAT Math 8.33% of fourth-grade students improved their FCAT math achievement level one year to the next, and an additional 5.56% maintained a level five -- the highest level achievable. 86.11% of fourth-grade students failed to improve their FCAT math achievement level one year to the next. 40% of fourth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fourth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next. 44% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 56% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Fifth Grade FCAT Math 4.76% of fifth-grade students improved their FCAT math achievement level one year to the next. 95.24% of fifth-grade students failed to improve their FCAT math achievement level one year to the next. 50% of fifth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 50% of fifth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 40% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. FCAT Testing - Academic Progress Conclusion A substantial, and often overwhelming, number of students failed to meet the criteria for academic progress measured by FCAT as established in section III.B.(2) of the Charter. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(2) of the Charter. FCAT Testing - Learning Gains In addition to the foregoing, section XIII.A. of the Charter provides, in pertinent part, that: The School shall be subject to the same accountability requirements as other public schools, including reports of student achievement information that links baseline student data to the School?s performance projections identified in the charter. The charter school shall identify reasons for any difference between projected and actual student performance. The “projections identified in this charter” shall be as follows: (1) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the reading portion of the FCAT; (2) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the math portion of the FCAT; (3) The average score for the students taking the science portion of the FCAT will meet or exceed the District average; and (4) The average score for the students taking the FCAT Writes will meet or exceed the District average. 54% of Boston Avenue students made learning gains on the reading portion of the FCAT in 2011. 44% of Boston Avenue students made learning gains on the math portion of the FCAT in 2011. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student learning gains established in section XIII.A. of the Charter. Other Student Assessment Tests Section III.B.(4) of the Charter provides that: In addition to the State required achievement tests, the School will use a standardized test for assessing students in core subject areas (reading, math, and science) in the Fall in order to get baseline data. The students will then be assessed in the Spring to determine the amount of yearly academic gain. Section III.B.(4) of the Charter governs the administration of the standardized assessment tests, rather than the results of the testing. The Florida Assessment for Instruction in Reading (“FAIR”) is an assessment test for reading proficiency that is provided by the state of Florida. All schools in the District administer the FAIR test three times a year. Boston Avenue met section III.B.(4) for reading by administering the FAIR in grades one through five. The Differentiated Accountability Assessment (“DA Assessment”) is an assessment test for math and science proficiency that was developed by District specialists, and has been used for a number of years. All schools in the District administer the DA test twice per year, in the fall and in the middle of the year. Boston Avenue met section III.B.(4) for math by administering the DA Assessment in grades three through five. Boston Avenue met section III.B.(4) for science by administering the DA Assessment for science in the fifth grade. In contrast to section III.B.(4) of the Charter, section III.B.(6) is directed to the results of the testing, and provides, in pertinent part, that “[t]he academic progress of students and the School will be evaluated and compared to the rate of progress of the students in the Volusia County School District not enrolled in the School.” Thus, an analysis of the results of the FAIR testing for reading, and the DA Assessment testing for math and science, and their measurement of academic progress, is appropriate for determining whether Respondent met the Charter standards to warrant renewal. Standardized Test for Reading - FAIR The District has established that a student is “proficient” in reading if he or she correctly answers 80% of the questions on the FAIR for their grade level. A demonstration of proficiency in FAIR correlates to a high probability that a student can score at a level three or higher on the FCAT reading achievement test. The FAIR testing for first and second grade is predictive, since there is no corresponding FCAT test, but allows the school and the District to identify targeted areas of need before the students get to third grade where FCAT scores may require a repeat of grade. The Board created four categories of measuring student achievement based on performance on the FAIR testing performed during the year. A student was determined to have “decreased proficiency” if he or she went from proficient to below proficient in reading during the course of the year. A student was determined to have “maintained proficiency” if he or she scored above the 80% correct answer level during the course of the year. A student was determined to have “maintained below proficiency” if he or she scored below 80% correct answer level during the course of the year, but was not falling further behind. Finally, a student was determined to have “improved proficiency” if he or she scored went from below the 80% correct answer level to at or above the 80% correct answer level during the course of the year. First Grade FAIR Reading In first grade, 18% of students improved their proficiency in reading, 51% maintained proficiency, 23% of students maintained below proficiency, and 8% of students decreased in proficiency. With 69% of students reading at a level of proficiency by the end of the year, and with only 8% decreasing in proficiency, Dr. Parker indicated that “first grade isn?t necessarily a huge area of concern.” Second Grade FAIR Reading In second grade, 3% of students improved their proficiency in reading, 9% of students maintained proficiency, 77% of students maintained below proficiency, and 11% of students decreased in proficiency. Thus, 88% of Boston Avenue second grade students were reading below proficiency. Third Grade FAIR Reading In third grade, 11% of students improved their proficiency in reading, 5% maintained proficiency, 78% of students maintained below proficiency, and 5% of students decreased in proficiency. With a total of 83% of students reading below the level of proficiency, and with the FCAT test being administered at the end of the year, Dr. Parker characterized the FAIR results as “alarming.” Fourth Grade FAIR Reading In fourth grade, 3% of students improved their proficiency in reading, 41% of students maintained proficiency, and 56% of students maintained below proficiency. No fourth- grade students decreased in proficiency as assessed by FAIR. Fifth Grade FAIR Reading In fifth grade, 16% of students improved their proficiency in reading, 28% percent maintained proficiency, and 56% of students maintained below proficiency. No fifth-grade students decreased in proficiency as assessed by FAIR. Standardized Test for Math - DA Assessment The DA Assessment test uses the same proficiency standards and categories that were developed for the FAIR. As with the FAIR test for reading, the DA Assessment is designed to be predictive of how students will perform on the FCAT. Third Grade DA Math In third grade, 46% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. No third-grade students decreased in proficiency in math as assessed by the DA Assessment. Fourth Grade DA Math In fourth grade, 41% of students improved from below proficiency to proficiency in math, and 59% of students maintained below proficiency. No fourth-grade students decreased in proficiency in math as assessed by the DA Assessment. Fifth Grade DA Math In fifth grade, 42% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. One fifth-grade student (4%, as based on a fifth-grade enrollment of 25 students) decreased in proficiency in math as assessed by the DA Assessment. Standardized Test for Science - DA Assessment In fifth grade, 4% of students maintained proficiency in science, 30% of students improved from below proficiency to proficiency, and 65% of students maintained below proficiency. No fifth-grade students decreased in proficiency in science as assessed by the DA Assessment. Failure to Maintain an Acceptable Level of Student Achievement in the State?s Education Accountability System and Other Standardized Testing Paragraphs 1 and 2.a. of the Notice make the school grades earned by Boston Avenue, and the results of the standardized student assessment tests, basis for the non-renewal of the Charter. The FAIR and DA Assessment test results demonstrate that, while some students demonstrated proficiency, the majority of students at Boston Avenue who were administered the non-FCAT standardized assessment testing either maintained below the level of proficiency or decreased in proficiency. Boston Avenue?s receipt of a school grade of “F” in the 2009-2010 school year, “D” in the 2010-2011 school year, and “F” in the 2011-2012 school year, combined with the results of the standardized student assessment tests, demonstrated a lack of student improvement over the course of the past three years. For the 2010-2011 school year, Boston Avenue was one of only two of the 46 elementary schools in the District to receive a grade of “D.” There were no “F” schools for that year. The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 46 elementary schools in Volusia County by a substantial margin. For the 2011-2012 school year, Boston Avenue was one of only two of the 52 elementary schools in the District to receive a grade of “F.” The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 52 elementary schools in Volusia County by an even wider margin than the previous year. Section 1002.33(7)(a)12., which governs the standards for issuance of a school charter, provides that the charter may be cancelled during its term “if insufficient progress has been made in attaining the student achievement objectives of the charter and if it is not likely that such objectives can be achieved before expiration of the charter.” Section 1002.33(7)(b)1., provides, in pertinent part, that “[a] charter may be renewed provided that a program review demonstrates that the criteria in paragraph (a) have been successfully accomplished and that none of the grounds for nonrenewal established by paragraph (8)(a) has been documented.” The grade of “F” for the most current year -- meaning that students at the school are failing to make adequate progress -- is strong evidence that the standards for renewal of the Charter have not been met. Thus, in the course of renewing a charter, it was not an error for the School Board to give consideration to the student achievement objectives, even those of a general and non-numeric nature. The evidence in this case, taken as a whole, demonstrates that Boston Avenue failed to meet levels of academic progress that approached even the lowest performing District-operated elementary schools in Volusia County. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(6) of the Charter, thus constituting a reasonable and valid basis for the non-renewal of the Charter. Comparison with Learning Gains of Similar District Schools Section III.B.(5) of the Charter provides that: To the greatest extent possible, a comparison of learning gains as defined by the State under the Florida A+ Accountability Plan will then be compared with the learning gains of similar district schools with comparable populations using demographic information obtained at www.myflorida.com. Learning gains will be examined as determined by the State based on the percentage of students in the lowest 25% of the School showing improvement of more than one year within level 1 or 2. The state minimum acceptable standard for performance in reading and mathematics by students in the lower quartile is 50% of these students will make a learning gain. The comparator elementary schools were determined by the percentage of students who were receiving free or reduced lunch and the percentage of students classified as a minority at each school. Those criteria are found to be adequate to represent schools with comparable demographic characteristics. Applying those criteria, 14 schools were determined to have “comparable populations” to Boston Avenue. In the 14 elementary schools having comparable populations, an average of 13.3% of students of lowest quartile within FCAT level one or two made learning gains in 2011. At Boston Avenue, 10.7% of students in the lowest quartile within FCAT level one or two made learning gains in 2011. Thus, neither Boston Avenue nor the average of the comparator schools came close to meeting the “state minimum acceptable standard” that 50% of the lower quartile of students within level one or two make more than one year of improvement. Although section III.B.(5) of the Charter set forth the state standard, it is not couched in language that would lend it to being applied as a Charter performance criterion. The fact that FCAT level one and two students at Boston Avenue and the comparative District schools were bunched closely in their levels of improvement, along with the incongruity of applying a standard of performance to Boston Avenue that is not being met by District schools, suggests that the 50% threshold is to be applied as an aspirational goal, rather than a standard for renewal. Thus, Boston Avenue?s failure to meet the “state minimum acceptable standard” set forth in section III.B.(5) of the Charter should not form a basis for non-renewal of the Charter. 3. Failure to Use State Approved Materials in Math Section III.A.(3) of the Charter provides that Boston Avenue?s “math curriculum will utilize a math series by Pearson/Scotts Foresman, or another math series approved by the State.” Paragraph 2.b. of the Notice provides, in pertinent part, that “[Boston Avenue] is using the Saxon math series, which has not been approved by the State. This fact was pointed out to the administration at [Boston Avenue], but they indicated that they did not intend to make any change.” Boston Avenue has used and continues to use the Saxon math series. The Saxon math series is not a math series by Pearson/Scotts Foresman. The State of Florida issues an annual list of approved publishers and materials. The Saxon math series is not on the state-approved list. Mr. Viecelli and Mr. Jackson testified as to their belief in the effectiveness of the Saxon math series, and the reasons for its purchase and use at Boston Avenue. Dr. Parker and others testified as to the Saxon math series incompatibility with the District?s math curriculum map. Regardless of the arguments that can be made for or against the Saxon math series, the Charter is specific as to the math series to be used at Boston Avenue. Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to use an approved math series in violation of Section III.A.(3) of the Charter. 4. Failure of the Student Transportation Service to Comply with State Regulations Student transportation services relevant to this proceeding are set forth in Section V.E. of the Charter. That section provides, in pertinent part, that: The transportation will be consistent with the requirements of section 1006.21 through 1006.27, Florida Statutes, as well as Florida State Board of Education Administrative Rules of Transportation section 6A-3.0001 [sic] through 6A-3.037, as may be amended from time to time. * * * All bus operators who have not obtained proper certification from the Sponsor shall not be allowed to transport any of the School's students. The School must also provide the Sponsor with documentation of the thirty (30) day bus inspection required by Florida Administrative Code Rule 6A- 3.0171. The Sponsor reserves the right to inspect the School's buses at any time, with reasonable advance notice (usually 24 hours) so as not to disrupt the School's operation, unless exigent circumstances exist. Failure to comply with these provisions shall constitute "good cause" and the basis for termination of this charter contract. Paragraph 2.c. of the Notice provides, in pertinent part, that: The student transportation service operated by BACS has persistently failed to comply with state regulations. Each year, the District conducts evaluations of the charter schools in the district to monitor compliance with the charter and the law. Each of the last three evaluations of BACS has noted serious violations in their student transportation service. Boston Avenue has provided transportation for its students since the 2009-2010 school year. It maintains a fleet of five buses, three of which operate on Boston Avenue?s three bus routes, and two of which were used as back-ups when needed. The evidence demonstrates that Petitioner provided reasonable advance notice of its inspections as set forth in the Charter. As a result of its October 2011 charter review, the School Board staff determined that Boston Avenue did not have medical emergency plans on its buses for five students who qualified as disabled under Section 504 of the Rehabilitation Act. A "504 Plan" describes the special conditions or non- medical care that a qualifying student may need while on the bus. Thus, the contract provision was determined to be “not met.” By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue did not transport any qualifying students. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain medical emergency plans is not a sufficient basis for non-renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue?s Bus Stop Safety Check forms were not correctly or completely filled out. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue?s Bus Stop Safety Check forms were inspected with no errors noted. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain correct Bus Stop Safety Check forms is not a sufficient basis for non-renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue failed to meet contract provisions regarding its bus drivers, including requirements for current DHSMV driving history checks, verification of weekly DHSMV updates for one of its drivers, and timely completion of new Category IV driver clearance forms. In addition, the School Board?s School Bus Operator Qualifications Evaluation Worksheet indicated that two of Boston Avenue?s bus operators did not have at least 40 hours of pre-service training, that three of the operators had deficiencies in their otherwise current medical examination certificates, and that the results of the operators? dexterity tests were not noted on their medical examination certificates, resulting in a performance level of 50%. The Performance Determination Worksheet instructed Boston Avenue to submit “a Corrective Action Plan” to remedy the deficiencies. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that “[a]ll operator records are in order and all are qualified to operate a school bus. The rating for the operators licensure/Qualifications review is 100% where a minimum of 95% is expected.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient basis for non- renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue?s bus No. 9601 did not have a required seating chart onboard, and that bus No. 0356 did not have a required orange “No Students Left Onboard” sign in the back window. Mr. Viecelli indicated that the operator had taken the seating chart from the bus to update it on the day of the inspection, and had not yet returned it. He further indicated that the chart was always on the bus when in use. At the time the “no students” sign deficiency was noted, Bus 0356 was the spare, and was not being used to transport students. When Bus 0356 was taken out of service, the manual, including the emergency packet and all of the instructions and signs used to maintain compliance with state and charter requirements, was moved by the driver to the in-service bus. Boston Avenue has since created complete manuals for each of its five buses. By March 15, 2012, prior to the vote on non- renewal, the compliance charts were revised to indicate that “[s]chool buses were checked for a Route sheet, Student Listing, Seating Chart and Crash Management Packet. Each bus had the required documents.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient bases for non-renewal of the Charter. The School Board alleged that, in 2009, Boston Avenue did not use its designated bus loop, and that buses stopped on the roadway behind the school without extending the bus “stop arms” while unloading students. The evidence demonstrates that this alleged deficiency was resolved long before the March 2012 vote on non-renewal, and that the contract provision was “met” as of the December 2011, Charter Review report. The alleged failures set forth in this paragraph are not sufficient basis for non-renewal of the Charter. The December 2011, Charter Review report indicated that the Charter provisions regarding School Bus Inspection Records were “partially met.” However, the report indicated that “[t]he rating for this review is 96.6% where a minimum of 95% is expected. The report indicated no significant or unresolved deficiencies. By March 15, 2012, prior to the vote on non-renewal, the status of the contract provision was changed to “met.” The alleged failure set forth in this paragraph is not sufficient basis for non-renewal of the Charter. The School Board conducts “spot check inspections” of Boston Avenue?s buses to monitor compliance operations and ensure compliance with applicable laws and regulations. As a result of deficiencies found during a spot-check inspection on March 15, 2012, the District requested that Boston Avenue bring its buses to the District facility for full inspection. The inspection revealed 26 total deficiencies; 15 of those deficiencies were repaired on the spot. Of the remaining deficiencies, three were the result of fluid leaks of one kind or another. Each of the leaks was minor, and did not cause the fluid levels in the respective reservoirs to drop below normal, making them difficult to locate. Boston Avenue had previously contracted with a mechanic who was to have repaired the leaks, but was not successful. Boston Avenue changed mechanics, and the problems have been resolved. The evidence demonstrates that all of the operational deficiencies related to Boston Avenue?s transportation services noted in the October 2011, review were met before the School Board?s vote on the renewal of the Charter. The evidence demonstrates that Boston Avenue made substantial efforts to correct the fleet deficiencies, most of which were resolved before the School Board?s vote on the renewal of the Charter. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that the deficiencies in Boston Avenue?s provision of transportation services were so persistent or pervasive as to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes. 5. Failure of the Governing Board to Exercise Continuing Oversight Over the Operations of Boston Avenue Paragraph 2.d. of the Notice provides that: The governing Board for BACS has failed to exercise continuing oversight over the operations of the charter school. Section 1002.33(9)(i), Fla. Stat., requires that the “governing board of the charter school exercise continuing oversight over charter school operations.” Several instances establish that the governing board for BACS failed to meet its obligations under that section of the statute. The Charter contains no specific standards pertaining to the requisite degree of oversight necessary to establish compliance with section 1002.33(9)(i). Paragraphs VI.A.10. and of the Charter require that Boston Avenue provide information to the School Board, including internal financial control policies and procedures and copies of internal audits and financial audits prepared by Boston Avenue or on its behalf. Boston Avenue complied with those requirements. Failure to Properly Monitor Expenditures by the Management Company Paragraph 2.d., bullet point one, of the Notice provides, in pertinent part, that “[t]he governing body has failed to properly monitor expenditures by its management company, School Management Solutions, Inc.” School Management Solutions, Inc. ("SMS") is Boston Avenue's school management company. SMS is a contractor that provides payroll, finance, purchasing, human resources, and other services to Boston Avenue. The Financial Services section of the December 2011, Review indicated that two of the 13 financial factors were “partially met,” with the remainder being met or not applicable. As it pertains to the failure to properly monitor expenditures, the Notice cited the audit report, and noted the purchase of “large dollar purchases by SMS prior to Boston Avenue Board approval.” The evidence indicated the expenditure to be for a school bus purchased for $6,500, which exceeded the limit of $5,000 for expenditures by SMS without Board approval. The Boston Avenue Board subsequently approved the expenditure. The audit also noted an SMS employee salary that was billed to Boston Avenue in addition to the SMS management fee. The SMS employee was the food services director, who worked at the school but whose salary was not included in the management fee. The review report indicated that Boston Avenue responded to the School Board?s Summary of Findings, and stated that: The policy has been reviewed and reiterated with the school staff and management company. The Board has been advised to appoint a treasurer or liaison person to more thoroughly review the financial statements and monitor the budget. There was no suggestion that Boston Avenue?s response to the review report finding was determined to be inadequate, or that it would not resolve the issue. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that Boston Avenue?s alleged failure to properly monitor expenditures by SMS was sufficient to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes. Conflict of Interest Resulting from the Management Company Appointing and Recommending Members of the Boston Avenue Board of Directors. Paragraph 2.d., bullet point two, of the Notice provides, in pertinent part, that “[t]the governing board for BACS improperly permitted an official from [SMS] to appoint and recommend members of the Board of Directors, which represents a conflict of interest.” The report of the independent auditors made the statement that “the management company (School Management Solutions, Inc.) has expressed the authority to appoint and recommend members of the [Boston Avenue] Board of Directors, which represents a conflict of interest.” (emphasis added). The report did not provide any detail as to how that expression was made, or by whom. There was no other evidence to support the auditor?s statement, nor was there any evidence that SMS actually appointed or recommended members of the Boston Avenue Board of Directors. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, a conflict of interest as alleged. Failure to Conduct Employment History Checks. Paragraph 2.d., bullet point three, of the Notice provides, in pertinent part, that “[SMS] has not been conducting the employment history checks required by statute before hiring an individual.” The Notice specifically alleged, as the basis for non-renewal: . . . that the required employment history check had not been conducted in the majority of the files reviewed. In a recent site visit, it was found that while a review of the files showed that they now contain a standard reference form, a review of those forms revealed that the majority of the references listed were personal references as indicated on their application, not previous employers as required by the statute. Instead, there was a standard statement - “all references gave positive reviews of the employee and recommend the company hire the employee.” (emphasis added). The Notice did not allege other deficiencies in the employment screening process. Thus, deficiencies related to fingerprint records, criminal background checks, drug screening and the like were not pled as basis for the non-renewal of the Charter, and are not considered herein. Section 1002.33(12)(g)4., provides that: [b]efore employing instructional personnel or school administrators in any position that requires direct contact with students, a charter school shall conduct employment history checks of each of the personnel?s or administrators? previous employers . . . . If unable to contact a previous employer, the charter school must document efforts to contact the employer. Section 1002.33(12)(g)5. provides that “[t]he sponsor of a charter school that knowingly fails to comply with this paragraph shall terminate the charter under subsection(8).” During the October 2011, site visit, the School Board representatives noted that the employee references were not in employee files. Ms. Paige-Pender testified that “there were not the required two phone references, a minimum of two phone references to the last two employers for each employee on file, which is required by Florida Statute.”2/ Mr. Jackson attributed the deficiency to a change in the law, which he understood to previously allow either personal or professional references, but which he believed to have been changed after the opening of Boston Avenue. The Boston Avenue Charter was entered on June 24, 2008, and became effective on July 1, 2008. Section 1002.33(12)(g)4. was enacted in substantially its present form as chapter 2008-108, §14, Laws of Florida, and became effective on July 1, 2008. Thus, the suggestion that employment history checks were not required at the time the Charter was granted and the school was opened is unsupported and not accepted. Mr. Jackson testified that upon being advised of the employment history check deficiency, Boston Avenue and/or SMS contacted each employee?s professional references. Since there is no standard state form for documenting employment checks, SMS documented those checks on a form developed by SMS. Ms. Paige- Pender indicated that her review of the employment history forms demonstrated that many of the references were personal references, and that many employee files did not include information from past employers or documentation of efforts to contact the past employers. While the appearance of the form itself does violate the Charter or state law, Ms. Paige-Pender?s testimony that the forms did not contain the information required was credible, and is accepted. Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent or its agent failed to conduct employment history checks before hiring personnel or administrators, as alleged, and failed to make its employment history records current after notice of the deficiency. 6. Failure to be in Good Corporate Standing Section X.A. of the Charter provides that Respondent “is a not for profit corporation formed and organized under the applicable laws of the state of Florida, and for the duration of this charter shall take all actions necessary to maintain that status in good standing.” Paragraph 2.e. of the Notice alleged that Boston Avenue failed to maintain its corporate standing under the laws of the state of Florida. At the time of the October 2011, review, Respondent had been administratively dissolved by the Secretary of State, Division of Corporations for failure to file its annual report and fees. On March 22, 2012, the corporate fees were paid, and Respondent was reinstated prior to the March 30, 2012, meeting of the Board at which the proposed non-renewal was considered and approved. Section 607.1422(3), provides that “[w]hen the reinstatement [of an administratively dissolved corporation] is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.” Based on the foregoing, it is found that the School Board failed to demonstrate by a preponderance of the evidence that Respondent?s corporate standing was a valid basis for the non-renewal of the Charter. 7. Violation of Law in the Operation of Boston Avenue Paragraph 3 of the Notice alleged that Respondent, or its agent, SMS, violated Florida law by failing to conduct employment history checks and by failing to maintain Boston Avenue in good-standing as a not-for-profit organization. Paragraph 3 of the Notice is a reiteration of the allegations contained in paragraph 2.d., bullet point three, and paragraph 2.e. of the Notice, and the findings as to this allegation are those set forth for those paragraphs above. School Board Actions Impairing Performance Respondent has argued that a history of “bad blood” existed between the Board and Boston Avenue that tainted the relationship, and potentially resulted in the artificial lowering of Boston Avenue?s school grades. The evidence indicates that the Board and the District followed established procedures with regard to its actions, which included providing notice prior to conducting transportation inspections, and placing FCAT monitors into all classrooms of school that had received a grade of “F” for the preceding year. The evidence that the monitors acted inappropriately during the testing was not convincing, and in any event was not sufficient to establish that the presence of the monitors was so disruptive as to result in a decline in student performance in their FCAT testing. Limitation on the Grounds for Non-Renewal Respondent?s argument that only items related to student safety may form the basis for non-renewal is not persuasive. The purpose of public schools, including charter schools, is to ensure the academic progress and achievement of their students. It was not outside of the scope of the School Board?s authority to base its decision as to whether to renew the charter on the extent to which the goals for student performance and achievement established by the Charter were met. Ultimate Findings of Fact The standards for academic performance set forth in the Charter were sufficient to allow the School Board to make a reasoned assessment as to whether criteria in the Charter regarding student performance and achievement were met during the period of operation. The evidence in this case demonstrates that Boston Avenue has failed, in virtually every measurable area, to keep pace with the educational standards of schools operated by the District. Respondent?s failure to meet the standards for academic performance and achievement as set forth herein forms a reasonable basis for non-renewal of the Charter. Except for Boston Avenue?s failure to conduct timely and complete employment history checks, the basis for non- renewal identified as “other good cause shown,” either were not proven or would not, standing alone, constitute sufficient grounds for non-renewal. As to the employment history checks, the School Board proved that violation of the charter and Florida statute, in combination with the other areas of non- compliance with the Charter, forms a reasonable basis for non- renewal of the Charter. Based on the evidence and testimony as a whole, the School Board proved, by a preponderance of the evidence, that Boston Avenue failed to meet the criteria for renewal of its Charter, and that its proposed action to deny the renewal of the Charter was not in error.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Volusia County School Board, enter a final order declining to renew the charter school agreement existing between it and Volusia Elementary Charter School, Inc., d/b/a Boston Avenue Charter School. DONE AND ENTERED this 14th day of December, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 14th day of December, 2012.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
