The Issue Whether Broward County School Board has good cause to non- renew Automotive Technical Charter High School of South Florida, Inc.'s Charter School Agreement.
Findings Of Fact On June 19, 2001, the School Board approved the initial Charter School Agreement that allowed Parkway Academy to open. The original contract was effective for a ten-year period, which ended on June 30, 2011. Parkway Academy was assigned school location number 5181. Parkway Academy serves students from both Broward and Miami-Dade counties. Parkway Academy is located on Broward College Campus and the 2011-2012 school year enrollment was approximately 517 students. Eighty-five students were in Parkway Academy's most recent graduating class and 84 were accepted into college. Charter schools are part of the public school system and are required to follow the same precepts as a public school. During the 2010-2011 school year, the school district conducted a program review of Parkway Academy's Charter to determine if the charter should be renewed. After the first program review conducted during the 2010-2011 school year, the School Board determined that Parkway Academy had academic performance and programmatic deficiencies. As a result of the deficiencies, the School Board only granted Parkway Academy a one-year renewal Charter. Parkway Academy's Charter was renewed for the 2011-2012 school year, permitting the school to operate through June 30, 2012. The Charter Agreement mandated that Parkway Academy "provide educational services in accordance with the terms of [the] charter school agreement." The Charter School Agreement provided the following contractual performance obligations in Section 2.D: "Any non- renewal cancellation or termination of the Charter shall be subject to Section 1002.33(8), Florida Statutes, and the terms of this Charter." Section 2.D.1. of the Charter prohibited Parkway Academy from being designated a "school in need of improvement" for more than two years and provided the following non-renewal provisions: a failure by the School to participate in the state's education accountability system created in section 1008.31 or failure to meet requirements for student performance stated in this Charter. * * * (f) receipt by the School of a state- designated grade of "F" in any Two (2) of Four(4) years or the School is designated as "a school in need of improvement" for more than Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress(AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform to current state law or rules; Section 2.D.1.a of the Charter delineated what constitutes "good cause" for charter termination or non-renewal and read in pertinent part: "Good cause" for termination or non-renewal shall include, but not be limited to, the following: * * * (2) receipt by the School of a state- designated grade of "F" in any Two (2) of Four (4) years or the School is designated as "a school in need of improvement" for more than "Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress (AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform with the current state or rules. * * * (22) any other good cause shown, which shall include without limitation, any material breach or violation by the School of the standards, requirements or procedures of this Charter such as: * * * (c) the School's failure to fulfill all the requirements for highly qualified instructional personnel as defined by the No Child Left Behind Act (NCLB) * * * (t) a failure by the School to fulfill all of the requirements for highly qualified instructional personnel as defined by NCLB Section 11.D of the Charter provided the requirements for teacher certification and highly qualified teachers and read in pertinent part: All teachers employed by or under contract to the School shall be certified and highly qualified as required by Chapter 1012, Florida Statutes and any other applicable state of federal law. Criteria developed by the School for hiring all other staff (administrative and support staff) shall be in accordance with their educational and/or experiential backgrounds that correspond to the job responsibilities they will be expected to perform. If the School receives Title I funds, it will employ highly qualified staff. In compliance with those requirements, the School's teachers shall be certified and teaching in-field and the School's support staff shall have attained at least Two (2) years of college education or have passed an equivalent exam. The School may employ or contract with skilled selected non-certified personnel to provide instructional services or to assist instructional staff members as education paraprofessionals in the same manner as defined in Chapter 1012 and as provided by State Board of Education rule for charter school Governing Boards; however, in order to comply with NCLB requirements, all teachers in core academic areas must be certified/qualified based on Florida Statutes and highly qualified as required by NCLB. The School agrees to disclose to the parents of its students the qualifications of instructional personnel hired by the School. Parkway Academy's Charter Agreement for the 2011-2012 school year was signed by the parties on or about March 3, 2011, and went into effect July 1, 2011. The School District conducted its next renewal review of Parkway Academy during the last week of October and first week of November of 2011 to determine if the charter school renewal should go beyond the 2011-2012 school year. Diane Rogers ("Rogers"), Personnel Administrator for the Certification Department, audited and reviewed Parkway Academy's instructors and the courses each instructor was teaching. On or about October 26, 2011, Rogers retrieved teacher assignment information from the Data Warehouse1 and reviewed the instruction assignments and qualifications for the 2011-2012 school year to make a determination if each of Parkway Academy's teachers were certified, teaching in field, out of field, highly qualified, or not highly qualified for the teaching assignments he/she had been given. After completing the teacher review audit, Rogers identified the following five faculty members who lacked appropriate teacher certification: John Ahrens ("Ahrens"), Valerie Cedant ("Cedant"), Jerry Goodbolt ("Goodbolt"), Talondra Ingram ("Ingram"), and Uriel Williams ("Williams"). Rogers found Ahrens was teaching auto mechanics and auto tech but did not have the required Broward certificate. Rogers notified Parkway Academy in November 2011 that Ahrens needed a Broward teaching certificate. Rogers also found that Cedant previously had a temporary certificate, which expired June 30, 2011, and Ingram's temporary certificate had also expired before the 2011-2012 school year. Additionally, Goodbolt was working at the school without ever applying for a teaching certificate. While assessing the Parkway Academy, Rogers also discovered Williams had applied for a certificate from the Florida Department of Education ("FDOE"). FDOE determined his status was ineligible for a Florida educator's certificate in any area. Therefore, Rogers properly categorized Williams as not highly qualified to teach his assignments, Physical Education, Personal Fitness and Health Education, for the school because Williams did not have the basic requirement, a Florida educator's certificate. Rogers also identified the following eight teachers who did not have the required highly qualified2 status when she did her review: Floyd Barber ("Barber"), Cedant, Ingram, Gleandeal Johnson ("Johnson"), Lee Kornhauser ("Kornhauser"), Hyaptia Mata ("Mata"), Roxanna Smilovich ("Smilovich"), and Manage Vincent ("Vincent"). Rogers determined that Cedant was not highly qualified in that Cedant was precluded from the status because she did not have a valid educator's certificate and was also teaching improperly out of field without a valid educator's certificate. Rogers determined that Barber was not highly qualified to teach his assignment, Literature and Arts, since his FDOE certification was in Business Education. Therefore, he was improperly teaching out of field at Parkway Academy. Rogers also found in her review that Johnson had a FDOE certificate in Business Education 6 through 12 but she was assigned to teach Journalism, which requires FDOE certification either in English 6 through 12, Journalism, or English 5 through Therefore, Johnson was not highly qualified to teach Journalism because she was teaching out of field improperly, and she had not met the requirements. Rogers also discovered during her audit that Kornhauser was FDOE certified in Math 5 through 9, which allows him to teach middle school grade level math but he was assigned to teach Business Math and Math for College Readiness, which requires a Mathematics 6 through 12 certification. Therefore, Rogers determined that Kornhauser was not highly qualified to teach his assigned courses and was improperly teaching out of field. Rogers' review of Mata found that she was FDOE certified in Biology 6 through 12, but she was assigned to teach Earth Space Science, Chemistry, and Physics, all three of which required certifications other than Biology. Rogers determined Mata was not highly qualified to teach the three courses and was improperly teaching out of field. Upon review, Rogers found that Smilovich's FDOE certification was in Biology 6 through 12, but she was assigned to teach Earth Space Science, which requires certification in Chemistry, Physics, Earth Space Science, or General Science 5 through 9. Rogers' audit also determined that Smilovich was not highly qualified for her assigned class, and she was improperly teaching Earth Space Science out of field. Rogers' review also found Vincent was FDOE certified in Biology 6 through 12, but Vincent was teaching Chemistry, which requires a certification in Chemistry 6 through 12. Rogers determined that Vincent was not highly qualified for the teaching assignment and was improperly teaching Chemistry out of field. Parkway Academy employed and had the following instructors teaching out of field for the 2011-2012 school year without the proper credential for the core course of instruction they were assigned: Cedant, Ingram, Johnson, Kornhauser, Mata, Smilovich, Vincent, and Williams. Seventeen out of the 52 classes at Parkway Academy were being taught out of field. After discovering the teachers who were teaching out of their fields during her audit, Rogers also checked to determine if Parkway Academy had complied with the requirement to notify the parents that their children had teachers providing instruction out of field. Rogers found that Parkway Academy had only notified parents partially regarding Vincent and Mata. She concluded that the newsletter notification was incomplete for Mata because it listed only one of her areas being out of field, and it failed to notify the parents about the other instructors teaching out of field. Rogers concluded her audit by determining that Parkway Academy did not comply with the Charter School Agreement and laws because the school failed to employ teachers who all had valid teaching certificates, failed to have all of its teachers teaching in the appropriate field, failed to correctly designate teachers who were highly qualified to teach core curriculum subject areas, and failed to correctly notify parents that their children were being taught by teachers who were out of field. Rogers emailed Parkway Academy on or about December 1, 2011, and requested updated information on the status of each deficiency regarding the instructors that lacked the proper certification and/or qualifications that she had discovered during her review. Parkway Academy provided Rogers an email update the next day on each teacher Rogers had listed in the email of December 1, 2011, that was not in compliance, but Parkway Academy never provided Rogers any replacement teachers' names or certifications to verify compliance as she requested. During December 2011, Parkway Academy took the following measures to correct some of the teacher certification and qualification deficiencies. Parkway Academy replaced Cedant, Ingram, and Smilovich with certified, highly qualified teachers. Also, Parkway Academy changed Barber, Johnson, and Kornhauser's core course codes to courses they were certified to teach. Parkway also obtained out of field agreements with Mata and Vincent to teach courses they were not certified to teach while each worked on certification in the area they were teaching. The School Board's Testing and Assessment Department also reviewed Parkway Academy's Charter. Among other things, the Department looked at Parkway Academy's Adequate Yearly Progress ("AYP"), the measure of school performance used to comply with the No Child Left Behind Act of 2001 ("NCLB"). The Testing and Assessment Department found that Parkway Academy did not meet AYP for the latest school year 2010-2011, which was reported after the signing of the renewal Charter School Agreement in March 2011. Additionally, the Department determined that the failure to meet the requirements for student performance for the 2010-2011 school year meant Parkway Academy had failed to make AYP for the following eight consecutive years: 2003-2004, 2004- 2005, 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010, and 2010-2011. Parkway Academy's failure to meet the AYP for eight consecutive years earned the school the status of a "school in need of improvement" for more than two years. Parkway Academy failed to operate in compliance with the Charter School Agreement. The Certification Department's audit review report which showed a failure to use instructors that had the proper certification and/or qualifications for a substantial part of the year, combined with the Testing and Assessment Department's review results that concluded the Respondent was a "school in need of improvement" for more than two years due to failing to make AYP for eight consecutive years, caused a recommendation to be made to the School Board to non-renew Parkway Academy's Charter. On March 20, 2012, the School Board voted not to renew Parkway Academy's Charter. A Proposed Non-Renewal of its Charter notice was sent to Parkway Academy. On April 4, 2012, the School Board received Parkway's letter dated April 2, 2012, requesting a hearing upon the proposed Charter non-renewal, which was forwarded to the DOAH. The day of the formal hearing, Ahrens obtained a vocational certificate, which qualified him to teach auto mechanics and auto tech. Kornhauser neither had applied for nor obtained mathematics certification for grades 6 though 12.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board, enter a final order declining to renew the Charter School Agreement for Automotive Technical Charter High School of South Florida Inc., upon both the statutory and contractual grounds of (1) failure to meet the requirements for student performance stated in Parkway Academy's Charter including the school's status as a "school in need of improvement" for more than two years; (2) failure to use instructors having proper certification and/or qualifications; (3) failure to have teachers teaching in their fields; and (4) failure for Parkway Academy to disclose the out of field qualifications to the students' parents. DONE AND ENTERED this 10th day of August, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2012.
The Issue Whether the employment of Petitioner, Cornelius B. Frankliln, was improperly terminated by Respondent, The School Board of Seminole County, in the summer of 1988.
Findings Of Fact Petitioner, C.B. Franklin, began service with the School Board of Seminole County in the position of teacher in the 1951-52 academic year. In 1955, Petitioner was awarded a continuing contract of employment by Respondent in the position of teacher. Said continuing contract was in effect at all times relevant hereto. Petitioner was last employed by the School Board of Seminole County, Florida, as an Assistant Principal II at Sanford Middle School on an annual contract of employment, which terminated of June 10, 1989. During his employment at Sanford Middle School as an assistant principal from 1980 through 1988, Petitioner received satisfactory annual evaluations. In March, 1988, Owen McCarron, Assistant Superintendent, applied a "staffing formula" for each school in Seminole County. The staffing formula is not a school board rule but is a formula that the school board approves based upon student population to determine the number of teachers, secretaries, assistant principals, and others needed at each specific school. Mr. McCarron is responsible for the application of the formula. The application of the formula is not submitted to the school board for approval. Mr. McCarron made a mistake in the preparation of the staffing formula for 1988/89. The mistake made was that the number of assistant principals for Sanford Middle School would be reduced from two to one. Having been informed of a reduction, Dan Pelham, Principal, Sanford Middle School, determined that he would have to choose among the Assistant Principal II's employed and decided not to recommend the continued employment of Petitioner. Owen McCarron discovered the mistake and notified Dan Pelham, sometime in late March, 1989. However, Dan Pelham chose not to recommend the continued employment of Petitioner but rather to advertise the position as being vacant. When Mr. Pelham was notified the position was reinstated he considered it to be an "opportunity" to consider alternative persons for the position. Mr. Pelham's decision was based on Petitioner's performance as reflected by his annual evaluations and faculty input. Mr. Pelham held a conference with Petitioner on April 8, 1988, and Petitioner was advised that his contract as an assistant principal at Sanford Middle School would not be renewed for the school year 1988-89, because the School Board had reduced the number of assistant principal positions at Sanford Middle School from two (2) positions to one (1). Petitioner was offered a teaching position, under his continuing contract status, at Sanford Middle School as a peer counselor. The Respondent did not act to approve the reduction in positions, nor was the Respondent notified that Petitioner was not being recommended for reemployment. The School Board does not have a rule to govern how the decision is to be made upon a reduction in staff. At the time of the hearing and at all relevant times prior thereto, Petitioner held a valid Florida Department of Education certification in the teaching fields of health education, physical education and supervision and administration. On or about June 9, 1989, one day prior to the expiration of Petitioner's contract as Assistant Principal II, the Petitioner met with Dan Pelham and John Reichert, Director of Personnel. At that time, Petitioner was again advised by Mr. Pelham that he had not changed his decision not to renew Petitioner as an assistant principal, even though he had been advised that the position had been restored. The Petitioner was advised that he could apply for the vacant Assistant Principal II position but he would have to submit an application and a resume. The Petitioner responded that Dan Pelham was well aware of his qualifications, and that a copy of his resume was on file. At that time, Mr. Pelham offered Petitioner the peer counselor position, but salary was not discussed. Petitioner was given copies of documents containing the job information for the position of peer counselor. The position had not previously existed and had not been advertised. Petitioner was reassured that he had employment with the School Board as a teacher under his continuing contract status. At the same meeting, Mr. Reichert advised Petitioner to accept the teaching position, and at the same time apply for the assistant principal vacancy at Sanford Middle School. Petitioner applied for state retirement on June 27, 1988, and his retirement was accepted by the School Board of Seminole County thereafter, on July 13, 1988. Prior to the time Petitioner submitted his application for retirement, he was verbally offered a teaching position under his continuing contract status for the 1988-89 school year at Sanford Middle School. Petitioner is an experienced school administrator, holds a master's degree in [school] administration and supervision from Rollins College, in Winter Park, Florida. As a component of his master's degree requirement he had instruction in school law. Petitioner was aware that his employment as an assistant principal was on the basis of an annual contract of employment and that the position was not entitled to continuing contract status. Petitioner did not apply for the position of Assistant Principal II (secondary) at Sanford Middle School, after it was declared vacant and advertised (in the Spring of 1988), even though he was told that he would be considered for reappointment to the position if he did. Petitioner was aware that if he accepted the offered position of peer counselor his pay would resume in the Fall of 1988, along with all of the other teachers, and that he would be paid at the top of the teaching salary scale on the basis of his thirty (30) plus years of service. Petitioner did not respond, verbally or in writing, to the offered position of peer counselor subsequent to its offer and prior to his retirement. Mr. L. David Pelham, the principal of Sanford Middle School, was not obligated to reappoint Petitioner to the position of assistant principal, after June 10, 1988. However, Petitioner was entiled to a performance assessment prior to that date. Mr. Pelham recognized that Petitioner held continuing contract status and was entitled to be placed in a teaching position at Sanford Middle School for the 1988-89 school year and thereafter. Petitioner never discussed his decision to retire with Mr. Reichert or Mr. Pelham. Neither person had any communications with Petitioner after the June 9, 1988 meeting. Petitioner's annual contract of employment clearly put him on notice that neither he nor the school board owed the other any further contractual obligation after June 9, 1988 and that he had no expectancy of employment as an assistant principal after June 10, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the affirmative relief sought by the Petitioner should be DENIED. It is further RECOMMENDED that each party should bear their own costs and attorneys fees. DONE AND ENTERED this 31st day of October, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2007 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Findings of Fact Paragraphs 1 (1st three sentences), 2, 3, 4 (1st sentence), 5, 6, 7, 8, 10 (except the last 2 sentences) - Accepted in substance. Paragraphs 4 (2d sentence), 9,12 - Rejected as against the weight of the evidence. Paragraph 11 (except sentence 2)-Rejected as subservient. Respondents Findings of Fact Paragraph 1 through 26 - Accepted in substance. COPIES FURNISHED: Robert E. Hughes Superintendent of Schools c/o Seminole County School Board 1211 Melonville Avenue Sanford, Florida 32771 John D. Carlson, Esquire Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive Tallahassee, Florida 32308 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A. Post Office Box 1330 Sanford, Florida 32772-1330 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues presented, as framed by the Fifth District’s December 16, 2020, Order are: (1) whether the School Board is entitled to appellate attorney’s fees pursuant to section 1002.33(8)(b), Florida Statutes; and (2) the amount of attorney’s fees to which the School Board is entitled.
Findings Of Fact The Underlying Matter (DOAH Case No. 19-6424) The underlying matter concerned whether Legacy’s school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in the School Board’s November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b). A detailed recounting of the underlying matter can be found in The School Board of Brevard County v. Legacy Academy Charter, Inc., DOAH Case No. 19-6424 (DOAH Aug. 18, 2020), which concluded that the School Board met its burden, by clear and convincing evidence, that it may terminate the Amended Charter. Attorneys’ Fees and Costs for Underlying Matter (DOAH Case No. 20-3911F) On August 28, 2020, the School Board filed a Motion for Attorneys’ Fees, Costs, and Sanctions, which was assigned DOAH Case No. 20-3911F. The undersigned conducted a final hearing in DOAH Case No. 20- 3911F on November 6, 2020. The School Board’s expert on attorneys’ fees at that hearing, Nicholas A. Shannin, Esquire, testified that the hourly rate of $200 for partners and associates at the School Board’s Orlando-based law firm of Garganese, Weiss, D’Agresta & Salzman, P.A. (GWDS), was “incredibly reasonable.” The undersigned held that the $200 hourly rate GWDS charged the School Board for its attorneys was reasonable, and ultimately ordered Legacy, pursuant to section 1002.33(8)(b), to pay the School Board a total of $312,147.80, broken down as follows: (a) $271,162.00 in attorneys’ fees; and (b) $40,985.80 in costs. See The School Bd. of Brevard Cty. v. Legacy Academy Charter, Inc., DOAH Case No 20-3911F (DOAH Dec. 4, 2020). Attorney’s Fees for Appeal (Case No. 5D20-1762) The School Board’s Affidavit of Attorneys’ Fees details the attorney’s fees that the School Board seeks in the appeal, and includes the detailed billing records of GWDS. This affidavit avers that the hourly rate actually billed by counsel was $200 for attorney Erin O’Leary, Esquire, who is Board Certified in Appellate Practice by The Florida Bar, and who handled the appeal. The affidavit further avers that Ms. O’Leary’s total number of hours billed in the appeal was 42.5 hours. Although GWDS attorney Debra Babb-Nutcher, Esquire, participated as counsel in the appeal, including supervising Ms. O’Leary and assisting in case strategy, preparation of documents, and communications with the School Board and opposing counsel, the School Board only seeks to recover the total amount of attorney’s fees charged by Ms. O’Leary. In DOAH Case No. 20-3911F, the undersigned found that the $200 hourly rate GWDS charged the School Board of its attorneys was reasonable, and the undersigned finds that a $200 hourly rate charged by Ms. O’Leary for representing the School Board on appeal is reasonable. The hours expended in this matter are reasonable given the time and labor required, the unique arguments raised by Legacy in attempting to stay the closure of its school, the lack of legal precedent, the multiple factual claims that required rebuttal, the short time frame in which to respond making other work impossible, the significant effort required to defend against the stay, as well as the ultimate success achieved in defeating Legacy’s attempted stay. The School Board has demonstrated that the attorney’s fees sought are reasonable based upon the reasonable rate charged and the reasonable hours expended in the appeal. Legacy has filed nothing to dispute the School Board’s request for appellate attorney’s fees. The Lodestar figure (i.e., the fees charged and hours expended) by Ms. O’Leary in this appeal is $8,500.00 for the work performed between August 19, 2020, through December 3, 2020. The undersigned finds that this Lodestar figure is reasonable in light of the factors enumerated in the Rules of Professional Conduct, found in Rule 4-1.5 of the Rules Regulating The Florida Bar, as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). The undersigned finds that the total fee amount of $8,500.00 for the appeal of the underlying matter, Case No. 5D20-1762, shall be recoverable by the School Board, as prescribed in section 1002.33(8)(b).2
The Issue Whether Respondent Legacy Academy Charter, Inc.’s (Legacy) school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in Petitioner the School Board of Brevard County’s (School Board or the Sponsor) November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b), Florida Statutes (2019).
Findings Of Fact Legacy operates Legacy Academy Charter School, a non-Title 1 public elementary charter school (grades K through 6), currently located at 1923 Knox McRae Drive in Titusville, Florida. It is currently in its third year of operations. Legacy represents itself as a STEAM (Science, Technology, Engineering, Arts, and Mathematics) charter school. Legacy and the School Board entered into a charter contract on April 12, 2016. Legacy chose to defer opening for one year, with the intent of opening at the beginning of the 2017-2018 school year. From the time of the original charter, the School District found numerous deficiencies and issues with Legacy’s attempt to open and operate a charter school. For example, in October 2016, it reviewed Legacy’s progress and prepared a “pre-opening checklist” that noted certain deficiencies. In April 2017, representatives from the School District and Legacy met to review the pre-opening checklist and discuss Legacy’s progress toward opening for the school year on August 10, 2017. Assistant Superintendent Archer testified that, based on this meeting, she felt that Legacy was not ready to open, and thought it was in Legacy’s best interest for the School District to offer an opportunity for a second deferral. The School District’s concerns were well-taken; Legacy had not yet secured a school site, had not ordered textbooks, had not hired a Principal, did not have a student enrollment or lottery process in place, did not have an approved and established bank account, did not have office staff in place, and had not hired teachers. Legacy declined the offer to defer another year. Legacy ultimately found a location for the 2017-2018 school year: a former preschool located at the First United Methodist Church in downtown Titusville. During a pre-opening site visit in July 2017, the School District found that the school site was not ADA compliant, that there were safety issues concerning the playground, that the school site lacked infrastructure for necessary technology, and that Legacy had not removed religious symbols. On July 31, 2017, when the School District learned that Legacy had not obtained a certificate of occupancy from the City of Titusville (the first day of school was August 10), the School District issued a recommendation for the immediate termination of the charter for health, safety, and welfare concerns. The School District ultimately rescinded that recommendation for immediate termination on August 8, 2017, after Legacy obtained a certificate of occupancy. Legacy opened for the 2017-2018 school year on August 10, 2017. The School District received various complaints soon after, concerning whether ESE and gifted students were receiving their services, whether Legacy was providing free and reduced lunch, and whether Legacy was providing the appropriate materials and curriculum to its teachers. During the 2017-2018 school year, the School Board issued 10 notices to Legacy for various concerns, defaults, and deficiencies, including concerns found during a new site checklist for Legacy’s November 2017 move into a second location in Port St. John, Florida, and information revealed in a specific review audit of Legacy’s fiscal management and financial position conducted by RSM US LLP (RSM) on March 12, 2018. On April 18, 2018, the School Board issued a “90 Day Notice of Termination,” which listed six grounds for termination: Evidence of the School’s failure to meet generally accepted standards of fiscal management and/or willfully or recklessly failing to manage public funds in accordance with the law as set forth in Rule 6A-1.0081, Florida Administrative Code, Section 218.503, F.S., Section 1002.33(9), F.S., Section 1002.33(7)(a)(9), F.S., Section 1002.345(1)(a), F.S., and Sections 4(G) and 9(A) of the Charter Contract; Evidence of the School’s failure to comply with laws related to public meetings and records as set forth in Section 286.011, F.S., Section 1002.33(16)(b)1, F.S., and Section 9(A_ of the Charter Contract; Evidence of the School’s failure to comply with laws related to teacher certification as set forth in Chapter 1012, F.S., Section 1002.33(12)(f), F.S., and Section 10(C) of the Charter Contract; Evidence of the School’s failure to cure the material breaches of terms or conditions of the Charter Contract after receiving the District’s written notice of noncompliance as set forth in Section 1002.33(7), F.S., 1002.33(9)(c), F.S., and Sections 1(D)(l)(iv)(a) and 12(F) of the Charter Contract; Evidence of the School’s failure to comply with background screening and other requirements set forth in Chapter 1012, F.S., Sections 1002.33(12)(g), F.S., 10132, F.S., 1012.465, F.S., and 1012.458, F.S. and Section 10(J) of the Charter Contract; and Evidence of the School’s failure to comply with all applicable laws, ordinances, and codes of federal, state, and local governance including, without limitation, the Individuals with Disabilities Education Act (IDEA) as referenced in Rule 6A-6.030191(4)(d) and Rule 6A-6.030191(7), Florida Administrative Code, Sections 1003.571(1)(a) and 1002.33(16)(a)(3), F.S., and Section 3(l) of the Charter Contract. Legacy contested the termination, and the School Board referred the matter to the Division, which assigned it DOAH Case No. 18-2778. Rather than proceed to a final hearing, the parties agreed to and executed an Amended Charter Agreement, dated September 11, 2018 (Amended Charter), and filed a Joint Notice of Voluntary Withdrawal. The Preamble to the Amended Charter sets forth, in pertinent part, the explicit agreement of the parties concerning the issues that resulted in the execution of the Amended Charter: By entering into this Amended Charter, the parties wish to address the areas of deficiencies identified in the 90-Day Termination Notice. In doing so, Sponsor agrees to withdraw its 90-Day Termination Notice, allowing the School a chance to address the areas of deficiency and come into compliance with the terms of the original Charter, as amended by this Amended Charter. In exchange, the School agrees to submit to the Division of Administrative Hearings for Case Number 18-2778 a notice of withdrawal of its request for hearing. Each party is responsible for its own attorneys’ fees and costs incurred related to this DOAH proceeding. Nothing herein shall prevent the Sponsor from, or waives the Sponsor’s right to, issue another 90- Day Termination Notice based on repeated instances of non-compliance with the six (6) areas set forth in the April 18, 2018 Termination Notice issued by the Sponsor, based on new areas of non- compliance, and/or to immediately terminate the Charter in the event of a health, safety, and welfare issue under section 1002.33(8), Florida Statutes. The School will be allowed to present evidence that it believes prior alleged breaches were cured, wherein the assigned DOAH judge will make the final decision regarding whether the Sponsor has met the burden of proof under then existing laws.[4] 4 As referenced previously, Legacy filed a Motion for [sic] Limine and Motion to Strike on April 6, 2020, which, inter alia, argued that the undersigned should not consider evidence or allegations related to the previous conduct that resulted in the April 18, 2018, 90-Day Notice of Termination, contending that the Joint Notice of Voluntary Withdrawal constituted a resolution of those issues, and additionally contending that the doctrine of equitable estoppel precludes the School Board from raising those issues in this proceeding. In the April 29, 2020, Order Denying Respondent’s Motion in Limine and Motion to Strike, the undersigned found that Legacy had not established that the Joint Notice of Voluntary Withdrawal constituted a resolution of those issues, and also concluded that consideration of equitable estoppel, which could constitute a defense to this action, requires an evidentiary record. See, e.g., Fewless v. Dep’t of Mgmt. Servs., Div. of Ret., Case No. 18-5787 (DOAH June 17, 2019, Fla. D.M.S. Oct. 24, 2019). The undersigned provided the parties with “the opportunity at the final hearing to address the terms of the Amended Charter Agreement, create a record, and argue, in the proposed final orders, whether such pre-Amended Charter Agreement issues should be considered in the instant proceeding.” At the final hearing, Legacy did not attempt to introduce evidence to establish that equitable estoppel would preclude the undersigned’s The Amended Charter also makes specific reference to the deficiencies enunciated in the April 18, 2018, 90-Day Notice of Termination, stating: In the event that a proceeding is requested before an Administrative Law Judge based on any of the six (6) identified areas set forth in the April 18, 2018 90-day Termination Notice issued by the Sponsor, the School agrees to an expedited hearing within forty-five (45) days of the Sponsor’s written notice based on the calendar availability of the Administrative Law Judge. All other provisions of law regarding a DOAH termination hearing will apply. The undersigned finds that consideration of evidence related to the six areas set forth in the April 18, 2018, 90 Day Notice of Termination, in addition to evidence related to those areas set forth in the Termination Notice is warranted.5 Legacy moved into its current location on or about July 11, 2018. After the filing of the Joint Notice of Voluntary Withdrawal, and shortly after the parties executed the Amended Charter, the School District, starting October 19, 2018, began issuing multiple official notices of default, insufficiency, and other notices, to Legacy, for a variety of reasons. Thereafter, the School Board issued the Termination Notice. Florida charter schools are generally governed by section 1002.33. Section 1002.33(8)(a) provides as follows: (8) CAUSES FOR NONRENEWAL OR TERMINATION OF CHARTER.— (a) The sponsor shall make student academic achievement for all students the most important consideration of these issues, and made no argument concerning equitable estoppel in its proposed final order. 5 The undersigned will also only consider those grounds raised in the Termination Notice in the ultimate determination of whether the School Board is entitled to terminate the Amended Charter. factor when determining whether to renew or terminate the charter. The sponsor may also choose not to renew or may terminate the charter if the sponsor finds that one of the grounds set forth below exists by clear and convincing evidence: Failure to participate in the state’s education accountability system created in s. 1008.31, as required in this section, or failure to meet the requirements for student performance stated in the charter. Failure to meet generally accepted standards of fiscal management. Material violation of law. Other good cause shown. ACADEMIC ACHIEVEMENT AND STUDENT PERFORMANCE The School Board contends that Legacy failed to meet academic achievement and requirements of student performance under sections 1002.33(2), 1002.33(7)(a)4., and, 1002.33(8)(a)1., and sections (2) and 9(C) of the Amended Charter. Within this first ground, the Termination Notice identifies the following three categories: (a) failure to demonstrate improvement in student learning and academic achievement; (b) failure to demonstrate accountability by analyzing student performance data and by evaluating the effectiveness and efficiency of its major educational programs; and (c) failure of the Charter Governing Board to demonstrate oversight of assessments and accountability procedures to assure that the School’s student performance standards are met or exceeded. Failure to demonstrate improvement in student learning and student achievement. The School Board contends that Legacy failed to demonstrate improvement in student learning and student achievement, and that there was actually a significant decline in student proficiency, as measured by student performance on the Florida State Assessment (FSA) in English Language Arts, Math, and Science. 17 At the elementary school level, the FSA is administered annually in the areas of English Language Arts (ELA) and Mathematics to students in grades 3 through 6. In addition, the FSA is administered in the area of Science to students in grade 5. See § 1008.22(3)(a), Fla. Stat. All FSA assessments use scaled scores and achievement levels. Achievement levels range from 1 through 5, with level 1 being the lowest achievement level, level 5 being the highest achievement level, and level 3 indicating satisfactory performance on an assessment. See § 1008.22(3)(e)1., Fla. Stat. Ms. Ward’s expert report further explained these achievement levels as follows: 1–inadequate, highly likely to need substantial support for the next grade; 2–below satisfactory, likely to need substantial support for the next grade; 3–adequate, may need additional support for the next grade; 4– proficient, likely to excel in the next grade; and 5–mastery, highly likely to excel in the next grade. School grades are calculated, in part, based on students’ FSA scores. See § 1008.34, Fla. Stat. The School Board presented evidence and testimony, including expert testimony, concerning Legacy’s student performance data for grades 3 through 6 in ELA and mathematics, and grade 5 in science, for its first two school years of existence—2017-2018 and 2018-2019.6 Ms. Ward, the School Board’s expert, ultimately opined that Legacy’s student performance significantly declined from the 2017-2018 to the 2018-2019 school year, as evidenced by an increase in students receiving achievement levels of 1 or 2 on the FSA, and, with one exception (to be discussed below), a percentage of 6 On March 23, 2020, Commissioner of Education Richard Corcoran issued DOE Order No. 2020-EO-01, an Emergency Order, that, inter alia, cancelled all assessments for the 2019-2020 school year, including the FSA Assessment, as well as school grades. students receiving achievement levels of 3 or higher being lower than the State or Brevard School District average. The School Board’s contention that Legacy’s student performance significantly declined over the two school years in question can be summarized in these charts: ELA Year Level 1 Level 2 Level 3 Level 4 Level 5 2017-2018 19.5% 22% 31.7% 22% 4.9% 2018-2019 34% 23.3% 28.2% 11.7% 2.9% Mathematics Year Level 1 Level 2 Level 3 Level 4 Level 5 2017-2018 34.1% 34.1% 17.1% 9.8% 4.9% 2018-2019 47% 26% 19% 6% 2% Science Year Level 1 Level 2 Level 3 Level 4 Level 5 2017-2018 18.2% 36.4% 18.2% 27.3% 0% 2018-2019 56.7% 30% 10% 3.3% 0% Legacy’s ELA performance in the 2017-2018 school year was higher than the School District average. However, the percentage of Legacy students performing at level 3 and above for the remaining assessments was lower than State and School District averages for all assessments. The School Board also presented evidence and testimony, including expert testimony, that analyzed students’ 2016-2017 school year assessment levels in ELA and mathematics prior to attending Legacy, and then traced those students’ assessment levels during their time at Legacy.7 The School Board presented evidence that the number of students whose assessment levels were 1 and 2 increased after attending Legacy, while the number of students whose assessment levels were 3 and above decreased. In its first school year (2017-2018), Legacy received a school grade of C, and in its second school year (2018-2019), Legacy received a school grade of D. Legacy was the only public school in the school district that received a D school grade for the 2018-2019 school year. Legacy argues that, based on the percentage of points earned for the calculation for school grades, it has averaged a C for the school years 2017- 2018, 2018-2019, and 2019-2020. Legacy notes that this grade is the same, or better, over this same period of time than two schools within its geographic proximity: Mims Elementary and Coquina Elementary. Legacy further noted that Mims and Coquina received D grades for the 2016-2017 school years. Legacy also introduced evidence that it received capital outlay funding for the school year 2019-2020, and that, according to the guidelines set forth in section 1013.62, Florida Statutes, as charter schools must have “satisfactory student achievement based on state accountability standards applicable to the charter school[]” to receive such funding, it must be found to have satisfactory student achievement. The School Board presented evidence that comparing Legacy’s “average” grade to other geographically-proximate schools is not persuasive. First, Coquina, Mims (and other schools Legacy compared itself to during the final hearing, such as Apollo and Oak Park Elementary Schools), are Title I public elementary schools. Legacy, as a charter school, should be considered a “high-performing” school. The other “comparator” schools contain higher subgroups of economically disadvantaged, minority, and ESE populations than Legacy. Second, as a charter school, Legacy can enroll students from 7 The School Board could not provide such an analysis with respect to science assessment levels, as the science FSA is administered only in fifth grade. anywhere in the district, and has no boundaries, so that a comparison to neighboring schools is not persuasive. Third, if Legacy is compared to other charters and schools that emphasize STEAM innovation, such as Sculptor Charter School, South Lake Elementary School, and Educational Horizons Charter, those schools are consistently “A” schools, and Legacy’s declining grades only emphasize its failure to demonstrate improvement. Assistant Superintendent Archer testified that to establish academic achievement, comparing one school to another is not ideal; rather, it is important to drill down to data on individual student achievement to determine whether each student displays the appropriate level of growth each school year. The School Board further contends that Legacy, with one exception, failed to achieve any of its self-identified academic goals listed in its Application (which is incorporated into the Amended Charter), academic goals submitted to the School Board, and those academic goals identified in a School Improvement Plan (SIP) that Legacy submitted annually to the School Board pursuant to the Amended Charter.8 With respect to Legacy’s goals listed in its application: Legacy Goal Student Achievement Performance Meet or exceed performance scores of District and State traditional public schools (based on percentage of students assessment levels 3 through 5 on FSA) 2017-2018 ELA: Legacy–58.5%; District 60.3%; State 55.9% (Note–Legacy met this goal) 8 Legacy contends that the annual SIP requirement imposed by the School Board runs afoul of section 1002.33(7), which provides that “[t]he sponsor may not impose unreasonable rules or regulations that violate the intent of giving charters greater flexibility to meet educational goals.” The undersigned notes that section 1001.42(18)(a), Florida Statutes, requires school boards to annually approve and require implementation of a new, amended, or continuation of an SIP for each school in a district which meets certain criteria, such as receiving a school grade of D or F, among others. Assistant Superintendent Archer testified that it requires an SIP for all of its charter schools. She further testified that Florida requires academic achievement goals, which the School District now includes in the SIP. Legacy agreed to the SIP process in its Amended Charter, and submitted an SIP to the School District for each year of its existence. Further, having received a D grade in 2018-2019, Legacy was obligated to submit an SIP under section 1001.42(18)(a). 2017-2018 Math: Legacy–31.7%; District 61.6%; State 57% 2017-2018 Science: Legacy–45.5%; District 60.8%; State 58.7% 2018-2019 ELA: Legacy–42.7%; District – 61.6%; State 57% 2018-2019 Math: Legacy–45.5%; District 59.9%; State–57.8% 2018-2019 Science: Legacy–13.3%; District 59.9%; State 57.8% Grades K through 2 reading: Mean growth from fall to spring will be at least one year, as evidenced by outcomes from fall, winter, and spring Florida Assessment for Instruction in Reading (FAIR) Legacy cannot meet this goal because it did not administer FAIR for grades K-2 students Grades 3 through 6 FSA ELA and Math: 86% level 3 or higher; 10% decrease in level 1 or 2 2017-2018 ELA: levels 3 through 5– 58.5%; levels 1 and 2 – 41.5% 2018-2019 ELA: levels 3 through 5– 42.7%; levels 1 and 2 – 57.3% 2017-2018 Math: levels 3 through 5– 31.8%; levels 1 and 2–68.2% 2018-2019 Math: levels 3 through 5– 27%; levels 1 and 2–73% Grade 5 Science: 50% level 3 or higher 2017-2018 Science: levels 3 through 5–45.5% 2018-2019 Science: levels 3 through 5–13.3% Growth/Performance: the longer a student stays at Legacy, as the student is promoted, the higher the performance of that student ELA: increase in levels 1 and 2 from 48% to 50%; decrease in levels 3 through 5 from 52% to 50% Math: increase in levels 1 and 2 from 49% to 53%; decrease in levels 3 through 5 from 51% to 47% School Grade: first year grade of “B”; second year grade at or above “B”; third year grade of “A” First year school grade of “C” Second year school grade of “D” No reported grade for year three With respect to Legacy’s goals identified in the 2017-2018 SIP: Legacy Goal Student Achievement Performance 75% grade level average will be achieved by students in grades 1-2 on the Quarterly Literary Assessment (QLA) spring assessment Legacy failed to administer the spring QLA for grades 1 and 2 70% average percentile rank will be achieved by students in grades 3 through 6 on the Reading Comprehension portion of the final FAIR assessment Legacy did not administer the FAIR assessment to grades 3 through 6 75% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grades 3 through 6 on the 2018 FSA assessment in ELA 58.67% of Legacy students in grades 3 through 6 achieved levels 3 through 5 on the FSA ELA 65% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grades 3 through 6 on the 2018 FSA assessment in Mathematics 31.8% of Legacy students in grades 3 through 6 achieved levels 3 through 5 on the FSA for Mathematics 70% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grade 5 on the 2018 FSA assessment in Science 45.5% of Legacy students in grade 5 achieved levels 3 through 5 on the FSA for Science With respect to Legacy’s goals identified in the 2018-2019 SIP: Legacy Goal Student Achievement Performance Reduce the percentage of achievement at level 1 or 2 to 10% or below, and increase students at level 3 or above to 35% or greater for the FSA assessment in ELA 57.3% of students in grades 3 through 6 achieved proficiency rates of levels 3 through 5 (did not meet) Decrease the amount of students who fell to levels 1 and 2 range by at least 5% and increase level 3 and above by 10% for the FSA assessment in Mathematics Level 1 increased by 12.9%; Level 2 decreased by 8.1%; and Level 3 decreased by 4.8% (did not meet) Exceptional Education Students (ESE) increase to 35% at level 3 or higher for ELA, and 25% at level 3 or higher for Mathematics 19% of ESE students scored level 3 or higher on FSA for ELA, and 14.3% of ESE students scored level 3 or higher on FSA for Mathematics English Language Learners (ELL) students increase by 10% proficiency from the first diagnostic test to the last exam of the school year Legacy provided no data With respect to Legacy’s Academic Achievement Goals for 2018-2019, which were separate from its SIP, the School Board introduced evidence that: with respect to ELA, Legacy failed to reduce level 1 and 2 to 10% or below, or increase levels 3 through 5 to 35% or greater, as level 1 achievement increased from 19.5% to 34% over the previous year, and level 3 through 5 achievement decreased from 58.6% to 42.8% over the previous year; and, with respect to Mathematics, Legacy failed to decrease levels 1 and 2 by at least 5% each, and increase levels 3 through 5 by 10% overall, as levels 1 and 2 increased by 4.8% over the previous school year, and levels 3-5 decreased by 4.8%. Clear and convincing evidence establishes that, over the two school years of its existence, Legacy’s students, with little exception, have declined in the area of student achievement. Although Legacy’s ELA performance in the 2017-2018 school year was higher than the school district’s average, it declined in all other areas during this time period, and declined across-the- board the subsequent year. The School Board also established, by clear and convincing evidence, that Legacy, with one exception, failed to meet its self- identified goals in its application, SIPs, and academic achievement goals submitted to the School Board. Failure to demonstrate accountability by analyzing student performance data and by evaluating the effectiveness and efficiency of its major educational programs. Section 1002.33(7)(a)4. requires charter schools to address: The methods used to identify the educational strengths and needs of students and how well educational goals and performance standards are met by students attending the charter school. The methods shall provide a means for the charter school to ensure accountability to its constituents by analyzing student performance data and be evaluating the effectiveness and efficiency of its major educational programs. Students in charter schools shall, at a minimum, participate in the statewide assessment program created under s. 1008.22. Assistant Superintendent Archer testified and provided an expert report, concerning Legacy’s failure to analyze its student data, as required under governing law, the Amended Charter, and district requirements. Assistant Superintendent Archer testified: [Legacy’s] failure to implement any type of strategy to address and analyze data and establish methods to measure goals and make those data-informed decisions for instruction has negatively impacted the student achievement. Again, if you don’t know what your students need, how do you fill any gaps in their education or knowledge? If you don’t know what they know, and what to do if the student doesn’t understand, you cannot continue to support the children. Therefore, any kind of lack of analysis is the responsibility of the school. There are numerous progress monitoring tools available to Legacy that would document and permit analysis of individual student data and progress. Most notably, “Performance Matters” is a progress monitoring tool available to all schools within the school district. Assistant Superintendent Archer testified that Legacy did not consistently use Performance Matters or any other progress monitoring. On a site visit to Legacy, Assistant Superintendent Archer testified that she was unable to review any other documentation, notebooks, or other evidence that teachers were engaging in sufficient progress monitoring. Section 1008.25(4), Florida Statutes, provides that a student who does not achieve level 3 on an FSA assessment for ELA or mathematics, and who does not have an individualized education plan (IEP) in place, must be placed on an individualized progress monitoring plan (PMP). A PMP would be referenced in Performance Matters. Assistant Superintendent Archer testified that Legacy did not access Performance Matters during its first school year, and during their second year, only accessed it sporadically and inconsistently. Assistant Superintendent Archer further testified that during their third school year (2019-2020), Legacy had potentially 33 students that should have a PMP, but that Performance Matters indicated only 4 PMPs were in place. Legacy had previously indicated that it would utilize personalized academic plans (PAP) for its students, which were designed so that students and teachers would monitor an individual student’s progress. Assistant Superintendent Archer testified that Legacy never produced any evidence of a PAP for any of its students. Legacy contends that it reviewed performance data of its academic programs continuously, and that it submits its academic achievement goals to the School Board on an annual basis. Ms. Montford, Legacy’s current principal (who also served as its first principal in 2017-2018), testified that Legacy’s governing board provides oversight of assessments and accountability procedures for its school, but was unable to provide any evidence of this oversight. Despite Legacy’s contentions, the School Board established, by clear and convincing evidence, that Legacy failed to consistently and accurately utilize methods that identified the strengths and weaknesses of its students, and how well educational goals and performance standards were met by students attending Legacy. Failure of the Charter Governing Board (Governing Board) to demonstrate oversight of assessments and accountability procedures to assure that the Legacy’s student performance standards are met or exceeded. Similar to subsection I.B. above, the School Board contended, in its Termination Notice, that over the preceding two and one-half years, after reviewing the minutes of 35 meetings of Legacy’s Governing Board, there were only four instances in which Legacy’s Governing Board discussed an SIP. The School Board further contends that these minutes do not reflect input into the development of a plan, review of school and/or student performance data, or analysis of school needs. And, similarly, Legacy contends that its Governing Board conducted public meetings on a regular basis to discuss and invite public input concerning its student performance standards. As this contention is directly related to the findings in subsection I.B. above, the undersigned finds that the School Board has established, by clear and convincing evidence, that Legacy’s Governing Board failed to demonstrate oversight of assessment and accountability procedures to assure that Legacy’s student performance standards were met or exceeded. EXCEPTIONAL STUDENT EDUCATION The School Board contends that Legacy failed to comply with all applicable laws, ordinances, and codes of federal, state, and local governance including the Individuals with Disabilities Education Act (IDEA), as implemented by Florida through sections 1002.33(2), 1003.571(1)(a), and 1002.33(16)(a)3., Florida Statutes, Florida Administrative Code Rules 6A- 6.030191(4)(d) and 6A-6.030191(7) and adopted in section 3(j) of the Amended Charter. ESE concerns services required for students with disabilities. At the federal level, ESE is governed by the IDEA, which makes available a free appropriate public education (FAPE) to eligible children with disabilities. Florida law incorporates the IDEA in section 1003.571. Upon parental consent for an evaluation under IDEA, a child may be found eligible for ESE if the child has a disability that results in a need for special education services to make progress in school. If the child is eligible, the school is then required to develop an IEP, which is a document that details the individual child’s area(s) of need, educational goals, and support that the school will provide. The school must provide ESE services to the student at the duration and frequency indicated in the IEP. If a school fails to provide these services, the student may be owed compensatory education services, which are an equitable form of reimbursement when a school does not provide FAPE. Section 1002.33(16)(a)3. requires charter schools to comply with laws pertaining to ESE. Dr. Davis, the School Board’s fact and expert witness in charter school compliance, explained that each ESE student’s records are contained in an audit file, which is separate from that student’s cumulative student file. This audit file contains all meeting and conference notes, test results, meeting dates and notices, and the student’s IEP. And Ms. Gilman, the School Board’s fact and expert witness in ESE, stated that a school must provide services in accordance with the student’s IEP, and if it fails to do so, the student is owed compensatory education services. All ESE services must be reflected in lesson plans, and a school is required to report each student’s progress to the student’s parents a minimum of every nine weeks. Ms. Gilman further testified of the importance of documenting and monitoring ESE students, as progress monitoring determines whether a student is meeting his or her goals in a timely manner within the duration of the IEP. If the School District does not provide documentation that a student receives these services, then it determines that the student is owed compensatory education services. The School Board presented evidence that during Legacy’s first school year (2017-2018), it had not hired an ESE teacher within 15 days of the first day of class, and that student’s schedules did not provide any time for ESE services. The School District conducted a site visit after receiving complaints, and found the ESE teacher who was ultimately hired covering another classroom, and that Legacy could not produce ESE documentation when requested. Legacy received multiple official notices from the School Board regarding its ESE services and documentation, starting October 13, 2017, with a Notice of Deficiency. After receiving what it deemed an inadequate response from Legacy, on December 1, 2017, the School Board issued a Notice of Default, which stated that Legacy had not provided appropriate programs, strategies, and support services for ESE students. Legacy responded, and the School Board issued another Notice of Default. On February 22, 2018, the School District’s ESE department conducted one of many ESE audits of Legacy’s ESE services. The audit report showed four areas of noncompliance: (1) teachers need to document the accommodations they provide to each student in a user-friendly format; (2) ESE teachers need to have a well-documented lesson plan that details the services provided to the ESE students; (3) ESE teachers need to document attendance of ESE students and log of daily services provided; and (4) progress reports need to be provided to ESE students at the same time period as non-disabled peers. This audit included a corrective action plan, and the District additionally required Legacy to conduct an internal audit of its records to determine if any evidence existed that it actually provided ESE services. Legacy identified 27 students who were owed a total of 11,574 compensatory education service minutes, and proposed a compensatory education plan to provide those minutes. In March 2018, Legacy provided additional information in response to the December 1, 2017, Notice of Default. The School Board reviewed that information, finding that Legacy continued to be deficient in its documentation and provision of ESE services. On April 18, 2018, the School Board issued the first notice of termination, which included Legacy’s failure to comply with ESE laws. As discussed previously, the parties entered into an Amended Charter after this first notice of termination. The Amended Charter refers to previous ESE issues concerning Legacy: In the audit report dated February 22, 2018, the Sponsor cited four (4) findings of non-compliance regarding the ESE services provided by the School, including the School’s failure to document accommodations provided to each student in accordance with the student’s IEP, failure to provide well-developed lesson plans that detail the services provided to ESE students as documented on each student’s IEP, failure to provide documentation of attendance of ESE students and log of daily services provided, and failure to provide evidence that the School generated Annual Goals Progress Reports and EP Goals Progress Reports (Gifted) with data driven comments for parents. It has since adopted the District’s attendance logs, has adopted standardized lesson plans, and will continue to follow the District’s Corrective Action Plan as contained in the audit report dated February 22, 2018. The School has conducted an internal audit to determine what students may be owed compensatory education. By September 30, 2018, the School shall work with District ESE staff to ensure that all students have been properly identified and submit a plan to the District setting forth compliance with the deficiencies mentioned above and a plan to provide compensatory education to all students who did not receive the proper ESE services. Said plan shall include the methods by which each affected student will be receiving compensatory education, including the School’s plan for students who may no longer be enrolled at the School. All expenses related to compensatory education shall be borne by the School and all compensatory services shall be provided to the affected students by November 15, 2018, with supporting documentation of compliance provided to the District by December 1, 2018. Said plan shall be approved by the Sponsor. Upon a showing of good cause, the School may request an extension of any of these dates, and the Sponsor’s consent to such request shall not be unreasonably withheld. There was no persuasive evidence presented at the final hearing that Legacy has ever provided the 11,574 compensatory education service minutes owed from the 2017-2018 school year. Legacy contends that it responded to every notice received from the School District, as provided in the Amended Charter, and that an April 2019 ESE audit conducted by the School District, which identified numerous deficiencies and corrective measures, did not mention these minutes. However, the School Board had no record of, and Legacy presented no evidence that, these compensatory education minutes were provided to eligible students. After the execution of the Amended Charter, which included the requirement that Legacy submit a compensatory education plan to the School District by September 30, 2018, Legacy requested an extension for the deadlines contained in this provision of the Amended Charter, to be completed by January 15, 2019, with supporting documentation to the School District by February 1, 2019. In that time period, Legacy engaged in a familiar pattern of submitting a draft plan that the School District considered insufficient, but, on December 7, 2018, the School District contingently accepted Legacy’s following of a draft plan pending minor revisions. However, Legacy never submitted a revised document, and on January 18, 2019, the School District issued a Notice of Non-Satisfaction for failing to submit an acceptable compensatory education plan (which, at that point, would be the third amended compensatory education plan). Thereafter, on February 4, 2019, the School District issued a Notice of Default, and provided Legacy a February 19, 2019, deadline to come into compliance by submitting an acceptable compensatory education plan. Instead, Legacy requested an extension of the February 19, 2019, deadline, which, in a letter dated February 27, 2019, the School District denied. On April 4, 2019, the School District issued another Notice of Non- Satisfaction, for Legacy’s failure to comply with the February 4, 2019, Notice of Default. Following this April 4, 2019, Notice of Non-Satisfaction, the School District met with Legacy, and on April 16, 2019, issued a Notice of Deadlines, which outlined information and new deadlines that the School District and Legacy agreed to comply with concerning compensatory education services. The School District’s Division of ESE conducted follow-up audits on April 16 and 22, 2019, to ensure that Legacy was in compliance with ESE requirements. The report from these audits cited seven areas of noncompliance: (1) documentation of accommodations and strategies; (2) documentation of services; (3) documentation of daily attendance and services; (4) documentation of student progress reports; (5) documentation of parent notification; (6) documentation of written IEPs; and (7) documentation of supplemental aids and services. Three of these areas of noncompliance (documentation of accommodations and strategies, services, and daily attendance) were repeat deficiencies from the previous February 22, 2018, audit. Ms. Gilman testified that the findings of these follow-up audits raised concerns of whether Legacy’s ESE students were actually receiving the services that the law requires. Ms. Gilman’s expert testimony is credited. As a result of the April 2019 audit, Legacy was required to provide 1,305 compensatory education service minutes for the six sample students identified. Legacy completed these compensatory education service minutes, which were for the 2018-2019 school year, at the beginning of the summer between the 2018-2019 and 2019-2020 school years. At the beginning of the 2019-2020 school year, Legacy had completed the compensatory education service minutes (1,305) owed to those six students, but had not completed the compensatory education service minutes (11,574) owed to the 27 students from the 2017-2018 school year. The School District presented evidence that Legacy experienced ESE staff turnover during its three years of operation. Legacy presented evidence of an ESE teacher shortage for several weeks, making it difficult to hire and retain such teachers. During the 2019-2020 school year, Legacy lost its only ESE teacher for a period from September through October 2019, when Legacy hired a new ESE teacher. During these weeks without an ESE teacher, additional compensatory education minutes accrued because none of Legacy’s ESE students received services during this time. As a result, the compensatory education services minutes owed for 2019-2020 was 16,200 minutes. At subsequent parent meetings, some of the parents of Legacy’s ESE students waived some of the compensatory education minutes owed, resulting in a total of 9,990 minutes owed. Ms. Luna, one of Legacy’s current ESE teachers and who worked as an ESE teacher for Legacy during the 2019-2020 school year, testified that Legacy worked to fulfill ESE compliance issues. Ms. Luna testified that all regular and compensatory ESE services for the 2019-2020 school year have been provided during remote learning caused by the COVID-19 pandemic, and documented through the Google Classroom platform. However, because Legacy failed to produce progress monitoring reports related to ESE students during discovery, and failed to timely disclose its desire to introduce these progress monitoring reports as exhibits at the final hearing, the undersigned excluded such evidence. The School Board has established, by clear and convincing evidence, that Legacy failed to provide 11,574 compensatory education service minutes to 27 ESE students from the 2017-2018 school year. The School Board also established, by clear and convincing evidence, that Legacy failed to properly provide ESE services to its ESE students in the 2018-2019 school year, despite numerous notices. Although Ms. Luna’s testimony that Legacy has completed regular and compensatory ESE services for the 2019-2020 school year was persuasive, it is not clear, because of the lack of admissible progress monitoring reports, that Legacy’s ESE students received the services required under their IEPs. FINANCIAL MANAGEMENT The School Board contends that Legacy failed to meet generally accepted standards of fiscal management and/or willfully or recklessly failed to manage public funds in accordance with the law and promote enhanced academic success and financial efficiency by aligning responsibility with accountability as set forth in sections 218.503, 1002.33(9), 1002.33(7)(a)9., 1002.33(2)(a), and 1002.345(1)(a)3., Florida Statutes, Florida Administrative Code Rule 6A-1.0081, and sections 4(H), 4(G)(3)(a), and 9(A) of the Amended Charter. Section 1002.33(8)(a)2. provides that a sponsor may terminate a charter if it finds, by clear and convincing evidence, a “[f]ailure to meet generally accepted standards of fiscal management.” The School District administers the public funds that Legacy receives for its operations. Pursuant to section 1002.33(9)(g), Legacy is responsible for its finances, with various reporting requirements to the School District. Legacy’s Governing Board is responsible for the operation and fiscal management of the school, and shall provide oversight over the school’s operations. Legacy’s Governing Board must submit a monthly financial statement to the School District no later than the last day of the month following the month being reported. Section 1002.33(9)(g)1.a. requires Legacy to use the accounts and codes prescribed in the most recent issuance of the “Financial and Program Cost Accounting and Reporting for Florida Schools,” a publication, for all financial transactions and maintenance of public records. The primary source for revenue for a charter school is the Florida Education Finance Program (FEFP), which is based on a weighted calculation of the enrollment of the school (also known as full-time equivalent (FTE)). See § 1002.33(17) Fla. Stat. Legacy also qualified for a $500,000.00 Charter School Program grant (CSP), in which Florida provides start-up and implementation funds for new charter schools. CSP is a reimbursement grant, in which a charter school first purchases items, and upon submission of appropriate documentation, receives a reimbursement of the funds spent. The School District acts as a pass-through for the CSP funds, and reviews documents for proper documentation and adherence to the Governing Board policy before authorizing reimbursement. CSP funds are to be distributed in two phases: start-up (prior to opening, $25,000.00) and implementation (after opening, $475,000.00). Legacy failed to receive full reimbursement from CSP at either phase because it did not properly document purchases and failed to follow its Governing Board purchasing policies. This failure caused financial issues with Legacy, to be discussed further below. On November 19, 2018, Legacy took out a short-term loan from Legacy Funding Services, LLC, evidenced by a promissory note, in the original principal amount of $112,505.00.9 Legacy agreed to repay the promissory note by March 15, 2019, and accrue interest. The purpose of this loan was to provide funds to purchase items, to be reimbursed by the CSP grant. The School Board presented evidence that, in early 2018, it had various concerns about Legacy’s financial situation. The School District requested its internal auditor, RSM, to conduct a review of Legacy’s financial condition, and report whether financial emergency indicators, as defined in section 1002.345, were present. After meeting with School District staff, and Ms. Montford, RSM provided a “Specific Review” audit dated March 12, 2018. This Specific Review formed part of the basis for the April 18, 2018, 90-Day Notice of Termination. The 2018 RSM Specific Review found that Legacy made no payments on this short-term loan before the maturity date. Legacy had not paid the promissory note by the maturity date because it did not receive CSP funds. According to section 218.503(1)(a), one condition of a “financial emergency” is “[f]ailure within the same fiscal year in which due to pay short-term loans . . . as a result of a lack of funds.” Legacy made a payment on the promissory note after the maturity date. Then, it renegotiated the loan into a new promissory note dated September 20, 2019, in the principal amount of $88,322.11, with a maturity date of August 1, 2021. That promissory note included a security agreement, by which Legacy agreed to pledge all of its furniture, fixtures, equipment, and 9 Legacy Funding Services, LLC, is not connected to or otherwise affiliated with Legacy Academy Charter, Inc., or any of its principals. the like as collateral; however, as the school’s assets are purchased with public funds, it was improper to enter into this security agreement. Legacy provided evidence, in a Uniform Commercial Code (UCC) filing, that this security agreement was removed from the promissory note. The 2018 RSM Specific Review also found that Legacy listed this loan as revenue on its monthly financial report, as opposed to a liability, which is problematic. By standard accounting principles, revenue is income that an entity generates; a loan, such as the Legacy loan, obviously does not qualify as revenue. Legacy has engaged an external third-party auditor, King & Walker, CPA, P.L. (King & Walker) to conduct an annual financial statement audit. This annual financial statement audit is a review of the balances of Legacy’s financial statements, and the auditor ultimately issues an opinion on whether those balances are reasonable and accurate in all material respects. These audits are reported in accordance with generally accepted accounting principles (GAAP), which are standards set by the American Institute of Certified Public Accountants. GAAP is an all-encompassing version of the financial statements that includes every long-term item, pension, long-term capital assets, long-term payables, and the like. In all of its previous annual audits from King & Walker, Legacy has received a “clean” audit, that is, that the financial statements “present fairly, in all material respects[,]” with no adverse findings. Although Legacy contends that this is sufficient to establish that it has met accepted standards of financial management, the evidence presented at the final hearing indicated otherwise. The King & Walker audit report provides exceptions. For example, it states that the audit is “not for the purpose of expressing an opinion on the effectiveness of the school’s internal control.” It also states that “consideration of internal control . . . was not designed to identify all deficiencies in internal control that might contain material weaknesses or significant deficiencies . . . material weaknesses may exist that have not been identified.” Ms. Manlove, who was an auditor for RSM and was accepted as an expert in the field of auditing, explained that government entities commonly report their funds on a “fund balance” or “modified accrual basis,” which does not include every long-term asset or liability, but only includes short-term items. Ms. Manlove stated that this differs from GAAP. In 2019, the School District again engaged RSM to conduct a review to analyze Legacy’s compliance with the Amended Charter, fiscal management and controls, compliance with Florida law (focusing on indicators of a deteriorating financial condition or financial emergency), and compliance with Florida law concerning background screenings of Legacy employees. The 2019 RSM Review differed from the King & Walker audits, as it looked for compliance with what the Florida Department of Education requires of charter schools to report to sponsors, which means a “fund balance” approach that includes short-term items that are normally found in monthly financial statements. RSM met with Ms. Montford and performed field work on site at Legacy in August and September 2019, and additionally contacted Kevin Lugar of Building Hope, which Legacy had contracted with to support accounting support. Ms. Manlove testified that Ms. Montford, who was then serving as Principal, had possession of the documents, and that many of the requested financial documents were not kept at the school. The 2019 RSM Review, in analyzing whether any indicators of a financial emergency existed, looked for evidence of failure to pay uncontested claims from creditors within 90 days after the claim is presented, as required by section 218.503(1)(b), and found: A December 27, 2018, debit card payment in the amount of $323.12 to IC Systems, which was supported by a demand for payment that stated that IC Systems was a debt collection agency for Parrish Medical Group. Legacy could not provide a copy of the original invoice, and contended that this was a payment to AT&T, but could provide no evidence to support this contention. Based on this lack of documentation, it is not clear whether this payment aged over 90 days; A March 8, 2019, debit card payment in the amount of $843.96 to Florida Power & Light (FPL), which was supported by a document that indicated that this was a “final notice before power is turned off,” with a due date of March 7, 2019. Legacy did not respond to RSM’s inquiries as to whether FPL shut off Legacy’s power; Ms. Manlove testified that there was a pattern of FPL shut-off and past- due notices. The School Board presented evidence of four additional shut-off notices from FPL–July 10, 2018, November 27, 2018, February 26, 2019, and March 26, 2019—as well as four past due notices from FPL—April 2, 2019, June 3, 2019, November 2, 2019, and March 3, 2020. The Governing Board was not aware of these FPL shut-off and past-due notices. The 2019 RSM Review also analyzed a sampling of expenditures. Legacy’s segregation of financial duty policies provides that the Principal may authorize payments of $5,000.00 or less, and the Principal and Treasurer must jointly authorize (i) payments greater than $5,000, and (ii) payments of $1,500 or more that utilize CSP funds. The 2019 RSM Review found a December 5, 2018, check for $67,635.00 to CFL Alarms, LLC (CFL Alarms), for the purchase of computers and related equipment. The records provided to RSM indicated that Ms. Montford, as Principal, and Mr. Carroll, as Treasurer, approved of this expenditure. However, Ms. Montford was not the Principal of Legacy at that time, and Mr. Carroll had never served as Treasurer, but rather as Governing Board Vice Chair. Legacy submitted a CSP reimbursement request to the School District for the CFL Alarms purchase, but provided invoices from CFL Alarms that did not contain details such as types of equipment purchased or serial numbers of computers. Mr. Pulchan, the owner of CFL Alarms, testified that, in response to the School Board’s subpoena for its records, he added serial numbers and modified the invoices per Ms. Montford’s request. It also became apparent during the final hearing that CFL Alarms was not a licensed reseller of the Lenovo or Dell computers that it sold to Legacy. In fact, the evidence showed that CFL Alarms purchased computer equipment directly from Dell and Amazon, and then resold the equipment to Legacy at a substantial mark-up of between 45 and 60 percent. While Mr. Pulchan testified that he delivered and installed this equipment, Legacy provided no evidence or testimony why it could not have purchased this equipment directly, or in a more cost-effective manner. Legacy provided bank records that reflected a refund from CFL Alarms to Legacy in the amount of $33,131.50. CFL Alarms provided records from Mr. Pulchan’s Amazon account that reflected the return of Lenovo laptops. The undersigned finds that the evidence was unclear as to what Legacy purchased from CFL Alarms for $67,645.00, or what Legacy returned to CFL Alarms for $33,131.50. The payment to CFL Alarms, evidenced by a check signed by Ms. Montford, is also evidence that Legacy did not follow its segregation of financial duties policies. The School Board presented additional evidence that Legacy lacked a formal monitoring process for debit card purchases. It presented evidence that Legacy’s December 2019 bank statement reflects four payments to FPL, only one of which by check. Legacy made the other three payments with a debit card in the amounts of $948.31, $74.31, and $485.60, which were unsupported by other documentation. The School Board also presented evidence that it was, at best, unclear whether Legacy’s Governing Board properly monitors, performs due diligence, and exercises fiduciary responsibility over the school, as required under section 1002.33(9)(i) and (j). Part of the reason for this was that Legacy did not produce complete board packets for its monthly Governing Board meetings. An additional reason is that Mr. Carroll, the Governing Board vice chair, who has extensive background in finance and who previously served as the chief financial officer for NASA, provided inconsistent testimony about past-due bills and oversight. The School Board also presented evidence of Legacy’s monthly financial statements, which reflected a negative cash position for each month between October 2019 and March 2020. The negative cash position classified Legacy as being in a “deteriorating financial condition” under section 1002.345, and required Legacy to submit a Corrective Action Plan (CAP). The School District provided Legacy with notice about the submission of a CAP in November 2019. Legacy prepared a CAP, but the School District determined it was insufficient because it did not identify the specific actions needed to recover from this negative cash position. Legacy did not provide an updated CAP, and the School District forwarded Legacy’s CAP to the Department of Education on December 19, 2019. The Department of Education directed Legacy to prepare a CAP, with a deadline of May 1, 2020, which Legacy timely submitted, with assistance of the School District. As part of the CAP, Legacy plans to reduce salaries over a period of a year, and renegotiate its lease to reduce payments.10 With respect to the lease, which Legacy entered into with Legacy Charter Holdings, LLC, on April 21, 2017, the renegotiation resulted in a temporary reduction of the monthly rent from $41,483.67 per month, to 10 Legacy presented evidence at the final hearing that another charter school in Brevard County, Emma Jewel Charter Academy in Cocoa, Florida, has been required to submit a CAP for the 2014-2015 and 2015-2016 school years, but has never received a notice of termination from the School Board, while Legacy, who is undergoing the CAP process for the first time, received a notice of termination. Legacy contends that this disparate treatment is discriminatory. The undersigned finds that such evidence related to Emma Jewel does not alter the undersigned’s ultimate findings concerning whether Legacy has failed to meet generally accepted standards of fiscal management. $10,000.00 per month, for April, May, and June 2020. Thereafter, in July 2020, the rent increased to $37,941.98 per month.11 Mr. Moreno, the chief financial officer of Building Hope Services, testified, since fall 2018, that Building Hope Services provides back office accounting services for Legacy. His staff assists in the preparation of Legacy’s monthly financial statements, which he reviews. He testified that based on his review of Legacy’s financial statements, its revenues will exceed its expenditures at the end of the fiscal year. Mr. Moreno based this conclusion on the lease adjustment, and that Legacy received through the Small Business Administration (SBA) and USA CARES Act, see 15 U.S.C. § 636, et seq., a Paycheck Protection Program (PPP) loan in the amount of $198,810.00. The PPP loan could be forgivable if the funds received are used for: payroll costs; costs related to the continuation of group healthcare benefits; mortgage interest payments (but not mortgage prepayments or principal payments); rent payments; utility payments; interest payments on any other debt obligations that were incurred before February 15, 2020; and/or refinancing another specific SBA loan. If not, the PPP loan must be repaid monthly in the amount of $8,370.15, commencing November 1, 2020. Mr. Carroll testified that Legacy intends to use the PPP loan proceeds for salaries. It is unclear at best how Legacy needs funds to pay the salaries of its employees as a result of the COVID-19 pandemic, as those funds are derived from FEFP. It is also unclear if Legacy has done so, or whether it will be required to repay the loan beginning in November 1, 2020. Apparently, Legacy’s belief is that the PPP loan operates as a deus ex machina that solves all of its financial problems, and thus should convince the undersigned that the PPP loan cures and excuses the clear and convincing evidence presented 11 The lease originally tied the rent amount to enrollment of students at Legacy. Legacy’s year one enrollment was 165, year two was 235, and year three was 246. Pursuant to an addendum to the lease, the monthly rent was $1,100 per student, but no less than $200,000 in year two, and no less than $449,000 in year three. by the School Board that Legacy, time and time again, failed to meet generally accepted standards of fiscal management. It does not. The undersigned finds that the School Board presented clear and convincing evidence that Legacy failed to meet generally accepted standards of fiscal management. Additionally, the School Board presented clear and convincing evidence that Legacy did not manage public funds in a responsible manner. BACKGROUND SCREENING The School Board contends that Legacy failed to comply with requirements for background screening of its employees and Governing Board members, as set forth in chapter 1012, sections 1002.33(12)(g), 1012.32, 1012.465, 1012.467, and 1012.468, Florida Statutes, and sections 10(I) and (J) of the Amended Charter. As part of the 2019 RSM Review, RSM reviewed a sample of employees and Governing Board members for proper background screening. RSM found that two Governing Board members began their positions on the Governing Board prior to obtaining the required background clearance, two substitute teachers had either inaccurate employment records or did not receive the proper background screening before beginning employment at Legacy, and one teacher was not fingerprinted in a timely manner. Dr. Davis then reviewed all payroll, clearance, and database records for Legacy, and concluded that there were other issues concerning Legacy’s failure to conduct background screening. However, the Termination Notice, which forms the basis of this proceeding, only identifies the five persons analyzed in the 2019 RSM Review, as evidence that Legacy failed to comply with background screening laws. Legacy presented evidence that the School District had accidentally deleted a Governing Board member’s background screening information, but that RSM identified this Governing Board member as not obtaining the appropriate background screening. With respect to the other Governing Board member, the Governing Board approved of this member, and he received his clearance, during the summer months, when students are not normally on campus. Legacy also presented evidence that, with respect to the other four individuals identified in the 2019 RSM Review as not having obtained the required background clearance, the School District had issued a Notice of Default, as required under the section 12(F) of the Amended Charter, and Legacy had cured that default within the time prescribed in the Notice of Default. In fact, the School District issued written notices of satisfaction with respect to these issues. The undersigned finds that the School District has not established, by clear and convincing evidence, that Legacy failed to comply with background screening requirements for its employees and Governing Board members. VIOLATION OF LAW AND BREACH OF CONTRACT The School Board contends Legacy failed to comply with law and/or cure material breaches of terms or conditions of the Amended Charter after receiving the School District’s written notice of noncompliance, and that Legacy failed to promote enhanced success and financial efficiency by aligning responsibility with accountability as set forth in sections 286.011, 1002.33(2), 1002.33(7), 1002.33(9)(c), 1002.33(12)(f), 1002.33(16)(b)1., 1012, Florida Statutes, and sections 1(D)(1)(d)(i), 10(C), and 12(F) of the Amended Charter. Many of the School Board’s contentions made under this sub-category are repetitive of issues raised with respect to the other four sub-categories, such as: Legacy’s pledging its assets as collateral for a short-term loan; Legacy’s untimely submission of monthly financial reports; Legacy’s not providing proper minutes of its Governing Board meetings; the Governing Board’s failure to exercise oversight; and the Governing Board’s failure to implement policies and procedures. The undersigned previously found that the School Board presented clear and convincing evidence to establish these contentions, and further finds that these also constitute a violation of the provisions of the Amended Charter. Section 10(C) of the Amended Charter states that “teachers employed or under contract to the School shall be certified as required by Chapter 1012.” The School Board presented evidence that Legacy employed two teachers who were not certified, and two who worked out-of-field, but not approved by the Governing Board.12 Legacy presented evidence that the two teachers who lacked certification were substitute teachers, who were not required under Florida law to possess a certification. See § 1012.35, Fla. Stat. The School Board presented clear and convincing evidence that two teachers—Jane Anne Burnett and Vilma Perez—taught out-of-field without the Governing Board’s approval. See Fla. Admin. Code R. 6A-1.503(3). Section 1002.33(9)(p)2. provides that each charter school’s governing board must appoint a parent representative “to facilitate parental involvement, provide access to information, assist parents and others with questions and concerns, and resolve disputes.” Section 1002.33(9)(p)3. provides that this parent representative, or his or her designee, must be physically present at each meeting. The School Board presented clear and convincing evidence that Legacy’s appointed parent representative did not attend four meetings in the 2016-2017 school year, 13 of 15 meetings in the 2017-2018 school year, and six of 13 meetings in the 2018-2019 school year, in derogation of section 1002.33(9)(p). Section 1002.33(9)(p)3. also provides that all governing board meetings “must be noticed, open, and accessible to the public.” The School Board presented evidence, as found in the 2019 RSM Review, that between July 2018 and August 2019, Legacy posted 11 public notices on its website, but that four public meeting notices were not available, one meeting notice 12 An out-of-field teacher is one who is certified in a certain area, but teaches in an area outside of his or her certification. See Fla. Admin. Code R. 6A-1.503(1)(c). was “corrupted,” and three meeting notices were not posted on Legacy’s website. The 2019 RSM Review also revealed that of these 11 public notices on Legacy’s website, four were not timely noticed under Legacy’s April 2018 Notice of Meeting Policy, which provided that for all regular meetings, “notice should be given to the public at least seven (7) days prior to the meeting.” The School Board presented clear and convincing evidence that Legacy failed to provide notice of its Governing Board meetings, in derogation of section 1002.33(9)(p)3., and its Notice of Meeting Policy. Section 1002.33(9)(p)1. provides that “[e]ach charter school shall maintain a website that enables the public to obtain information regarding the school … and, on a quarterly basis, the minutes of the governing board meetings.” The School Board presented evidence, as found in the 2019 RSM Review, that two of the 15 meeting minutes sampled between July 2018 and August 2019 did not have any minutes posted to Legacy’s website. The School Board presented clear and convincing evidence that Legacy failed on two occasions to post required meeting minutes of its Governing Board, in derogation of section 1002.33(9)(p)1. Finally, the School District introduced evidence that it had issued 26 notices of deficiency between the date of the Amended Charter and the date of the 2019 RSM Review. The School District found that Legacy had not cured 14 of these notices. The undersigned’s review of these 14 uncured notices reveals that they are duplicative of School Board contentions that the undersigned has already found to be established by clear and convincing evidence. The undersigned further finds that the School Board has established, by clear and convincing evidence, that Legacy has defaulted under section 1(D)(1)(d)(i) of the Amended Charter, which provides that good cause for termination includes the failure to cure a material breach of any term or condition after written notice of noncompliance. The undersigned has not overlooked evidence that, after the April 18, 2018, “90 Day Notice of Termination,” and as the parties executed the Amended Charter, members of the School District, including Assistant Superintendent Archer, requested that Ms. Montford and Mr. Carroll be removed from their positions as principal and Governing Board Member. While the undersigned may agree with Legacy that such a request was an inappropriate invasion of Legacy’s autonomy, the undersigned cannot overlook the overwhelming evidence presented by the School Board of Legacy’s numerous, well-documented issues that support termination of the Amended Charter, or somehow reason away that these numerous, well- documented issues are actually evidence that the School District has a vendetta against Legacy, which Legacy contends.
Findings Of Fact Stipulated Facts Florida High is a charter school created pursuant to section 1002.33(5)(a)2. Florida High is a public school. Pursuant to section 1002.33(5), FSU is the sponsor of Florida High, has executed a charter agreement with FSUS, and performs the duties listed in the charter agreement. Florida High was originally created as a developmental research school and receives public funding for its operations as set forth in section 1002.32(9). Florida High?s student admissions are governed in part by sections 1002.21 and 1002.33(10)(a). FSUS employees are public employees and are part of the Florida Retirement System. The Public Employees Relations Commission has certified a unit of FSUS? instructional personnel for purposes of engaging in collective bargaining. FSUS teachers are subject to the same instructional certification requirements as those for all of Florida?s public school teachers. In establishing Florida High as a lab charter school, FSU and FSUS drafted a charter agreement. The charter agreement was executed by both parties after holding a public hearing. FSUS adopted the Student Code of Conduct after holding a public hearing. FSUS is subject to Florida?s public records laws as set out in chapter 119. All meetings of FSUS? Board of Directors, unless otherwise exempt, are subject to the requirements of Florida?s Sunshine Act and must be noticed and open to the public. FSUS is subject to the class size requirements of Florida?s public school system. FSUS is required to administer the Florida Comprehensive Assessment Test to all students, and the school is included in the state grading system for public schools and subject to specific repercussions by the Department of Education in the event of a failing grade. FSUS is required to report student assessment data to every parent of a student at the school, the school district, and its Board of Directors, and must maintain a website and post this data as well as follow the State Board of Education?s rules pertaining to public notice of school performance. Florida High?s Director files an annual financial disclosure of financial interest with the Florida Commission on Ethics. FSUS has the status of a “Local Education Agency” allowing it to receive federal funds. Jack Carswell was withdrawn from Florida High in part due to paragraph “k” of the Student Code of Conduct entitled “Withdrawal of Invitation”. Additional Facts Petitioner, Jack W. Carswell, was, until the 2013-2014 school year, a student at FSUS, having attended since 2002. Petitioners, Julie and Scott Carswell are Jack W. Carswell?s parents. Charter schools are public schools, and are part of the state?s program of public education. Charter schools may be sponsored by district school boards in the county over which the district school board has jurisdiction, or by a state university. Charter schools sponsored by a state university are in a separate category known as developmental research (laboratory) schools, or “lab schools.” With certain exceptions not applicable here, there is a limit of one charter lab school per state university. Respondent, FSUS, is a lab school created under the authority of sections 1002.32 and 1002.33. Respondent, FSU, is a state university, and is the sponsor of FSUS. The alleged unadopted rule at issue in this proceeding is found at section VI.K. of the Student Code of Conduct, which provides that: K. Withdrawal of Invitation/Expulsion When a student?s behavior is repeatedly inappropriate to others or continues to exhibit absolute disregard for the conditions of behavior set by the school, a meeting will be held and the Principal may recommend to the Director expulsion or permanent withdrawal of invitation of the student. The Principal/designee may recommend to the Director expulsion or withdrawal of invitation any student enrolled when his or her presence has or tends to substantially disrupt or interfere with the orderly educational process, destroys school property, endangers the health or safety of the student or others or infringes on the rights of others. (1) Withdrawal of Invitation FSUS is a school of choice that extends invitations on an annual or longer basis. The administration will decide the viability of a particular student?s invitation to attend FSUS at the end of each school year. Attendance and disciplinary issues will be considered when making these determinations. If it is decided that a particular student?s invitation should be withdrawn, then the Principal will make a written recommendation to the Director. Parents will be formally notified by the administration of a withdrawal of invitation for the next school year during the summer. Every attempt will be made to notify parents of the withdrawal of an invitation as early as possible in the summer so that arrangements for enrolling the student in their home school can be made. The Director may withdraw an invitation as prescribed in this Code or a parent or guardian may voluntarily withdraw the student. Documentation for withdrawal of invitation is a confidential record between the parents/guardian(s) and the school. Such documentation shall not be included in the student?s permanent record. A student cannot avoid expulsion by withdrawing from school. The only rulemaking authority granted by the Legislature in sections 1002.32 or 1002.33 is that conferred on the State Board of Education to adopt rules on how to form and operate a charter school and how to enroll in a charter school once it is created, which rules are to include a model application form, standard charter contract, standard evaluation instrument, and standard charter renewal contract. §§ 1002.33(21)(b)3.b. and 1002.33(27), Fla. Stat.1/ Charter school systems (see section 1002.33(20)(a)4., section 1002.33(20)(a)6., and section 1002.332) have been designated as “local educational agenc[ies]” for the limited purpose of receiving federal funds. § 1002.33(25), Fla. Stat. As further established in that section, however, “[s]uch designation does not apply to other provisions unless specifically provided in law.”
The Issue The issues presented are: (1) the amount of attorneys’ fees and costs to which Petitioner School Board of Brevard County (School Board) is entitled as the prevailing party in the underlying matter, DOAH Case No. 19-6424 (underlying matter); and (2) whether sanctions are warranted.
Findings Of Fact The Underlying Matter The underlying matter concerned whether Legacy’s school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in the School Board’s November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b). The Division received the Petition for Administrative Hearing on December 5, 2019, and provided notice to the parties that this underlying matter was before the Division on December 9, 2019. The Division assigned the undersigned ALJ to the underlying matter. After conducting a telephonic pre-hearing conference on December 13, 2019, the undersigned scheduled the final hearing in this matter for a four- day live hearing, March 2 through 4, and 6, 2020, in Titusville, Florida. Section 1002.33(8)(b) provides that “[t]he hearing shall be conducted within 90 days after receipt of the request for a hearing and in accordance with chapter 120.” The parties have attempted to make an issue of the initial scheduling of the final hearing in this matter—and in particular, Legacy has contended that scheduling this hearing outside of a 45-day period provided in the First Amended Charter between the School Board and Legacy (Amended Charter), executed September 11, 2018, caused unnecessary expense on the School Board’s behalf—but the undersigned, with the agreement of the parties at the December 13, 2019, telephonic pre-hearing conference, scheduled a final hearing in this matter that complied with the section 1002.33(8)(b) requirement that the hearing be conducted within 90 days. The School Board immediately thereafter began engaging in discovery to which Legacy did not timely respond. On February 12, 2020, Legacy filed its first “Opposed Motion to Continue with Good Cause,” which requested a continuance of the final hearing because of health issues confronting Legacy’s interim principal and intended client representative, Charlene Montford, in North Carolina. Additionally, on February 12, 2020, the School Board filed a Motion to Compel Depositions and Opposition to Respondent’s Motion to Continue, where it argued that it had not had the opportunity to depose Ms. Montford and another Legacy board member. The undersigned conducted a telephonic hearing on this motion on February 18, 2020, and entered an Order Denying Respondent’s Motion to Continue and Requiring Joint Status Update that same date. The parties filed a Joint Status Report on February 20, 2020, and reported that the parties could not agree on dates for depositions of Ms. Montford and the board member, and requested another hearing on this issue. Then, on February 21, 2020, Legacy filed a Motion to Reconsider Denial of Continuance, which provided additional details about Ms. Montford’s health issues and medical appointments in North Carolina. The undersigned conducted a telephonic status conference on February 21, 2020, and on February 26, 2020, entered an Order Granting Respondent’s Motion to Continue, Rescheduling Hearing and Requiring Status Conferences, in which the undersigned determined that Legacy had established good cause for a continuance of the final hearing, and rescheduled it for May 18 through 21, 2020, in Titusville. The School Board, on February 28, 2020, filed motions to compel. On March 10, 2020, the undersigned entered an Order that granted in part, these motions to compel, and provided Legacy with additional time to respond to pending discovery. On March 12, 2020, the School Board filed a Notice of Production from Non-Party, which Legacy opposed in a response filed March 25, 2020. Additionally, Legacy filed an Emergency Opposed Motion of Continuance and Emergency Opposed Motion to Extend Discovery on March 20, 2020, which requested a continuance of the final hearing and an extension of discovery due to the impacts of COVID-19. On March 20, 2020, the undersigned entered an Order requesting that the parties be prepared to discuss, at a March 27, 2020, telephonic status conference, any critical deadlines that may be relevant to the consideration of a continuance. On March 26, 2020, a day before the first of two previously-scheduled pre-hearing telephonic status conferences, the parties filed the following pleadings: Petitioner’s Opposition to Respondent’s Emergency Motion for Continuance and Emergency Opposed Motion to Extend Discovery; Petitioner’s Motion for Sanctions for Failure to Comply with Order Compelling Discovery; Respondent’s Motion for Protective Order; and Respondent’s Response to Petitioner’s Motion for Sanctions for Failure to Comply with Order Compelling Discovery and Request for Fees. After the telephonic status conference on March 27, 2020, the undersigned entered, on March 30, 2020, an Order on Pending Pleadings, which: (a) denied Legacy’s request to continue the final hearing; (b) granted Legacy an extension (until April 13, 2020) to respond to all outstanding discovery; (c) denied the School Board’s motion for sanctions; and (d) directed the parties to mutually agree to schedule the deposition of Legacy’s corporate representative. Additionally, on March 27, 2020, the undersigned entered an Order on Petitioner’s Notice of Production from Non-Party, which overruled Legacy’s objections to the documents that the School Board sought from non-parties, and allowed the School Board to serve the subpoenas attached to its Notice of Production from Non-Party. On April 6, 2020, Legacy filed a Motion for [sic] Limine and Motion to Strike, which argued that the undersigned should not consider evidence of, or should strike grounds or allegations, relating to two categories: (1) evidence, including all underlying financial information, concerning Legacy’s alleged “deteriorating financial condition,” because jurisdiction for deciding how to proceed when a charter school experiences a “deteriorating financial condition” lies with the Florida Department of Education, pursuant to section 1002.345; and (2) evidence or grounds for termination that predate the Amended Charter, including allegations contained in a previous termination proceeding (DOAH Case No. 18-2778) that resulted in Legacy withdrawing its request for a final hearing. The School Board opposed Legacy’s motion in two separate pleadings. On April 23, 2020, the School Board filed a Motion to Compel Respondent’s Production in Response to Petitioner’s Request to Produce, and on April 24, 2020, filed a Motion to Compel Respondent’s Answers to Petitioner’s Interrogatories. On April 24, 2020, the undersigned conducted the second of two pre- hearing telephonic status conferences. On April 29, 2020, the undersigned entered an Order Denying Respondent’s Motion in Limine and Motion to Strike. Additionally, the undersigned issued an Amended Notice of Hearing, which moved the hearing in the underlying matter to the Zoom web- conference platform, due to the COVID-19 pandemic. On May 1, 2020, Legacy filed: (1) Response to Motion to Compel Respondent’s Second Amended Response to Interrogatories (Unverified due to COVID-19); (2) Response to School Board’s Motion to Compel Additional Production; and (3) Motion to Reconsider Denial of Motion for [sic] Limine and Motion to Strike Evidence and Grounds for Termination Based Upon Financial Information. Also on May 1, 2020, the School Board filed an Opposition to Legacy’s Motion to Reconsider Denial of Motion in Limine and Motion to Strike Evidence and Grounds for Termination Based Upon Financial Termination. On May 4, 2020, the undersigned issued an Order Denying Motion to Reconsider, as well as an Order Granting Motions to Compel. The Order Granting Motions to Compel ordered Legacy to provide verified answers to its second amended responses no later than May 8, 2020, and that if Legacy failed to provide responsive answers to those interrogatories, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. The Order Granting Motions to Compel also ordered Legacy to provide all responsive documents requested no later than May 8, 2020, and that if it failed to provide responsive, non-privileged documents as ordered, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. On May 11, 2020, Legacy filed a Motion to Compel Production. Thereafter, on May 14, 2020, the School Board filed a Renewed Motion for Sanctions, noting that Legacy did not submit its answers to interrogatories or responsive documents until May 11, 2020—after the deadline imposed in the May 4, 2020, Order Granting Motions to Compel. Although originally scheduled for four days (May 18 through 21, 2020), the final hearing in the underlying matter actually lasted six days, from May 18 through 22, and 26, 2020. At the outset of the hearing, counsel for the School Board informed the undersigned that Legacy failed to timely provide witness and exhibit lists, and then filed an amended exhibit list (after filing its untimely exhibit list) that included additional exhibits. During counsel’s arguments on this issue, it became apparent that Legacy’s amended exhibit list contained not only untimely and previously-undisclosed exhibits, but also exhibits that contained material that Legacy did not provide during discovery. The undersigned excluded from evidence the undisclosed exhibits. As noted previously, the undersigned entered a Final Order in the underlying matter on August 18, 2020, that concluded that the School Board met its burden, by clear and convincing evidence, that it may terminate the Amended Charter. Attorneys’ Fees and Costs As the preceding paragraphs demonstrate, the parties engaged in vigorous pre-hearing motion practice, finding little agreement on even minor issues both before and during the final hearing. As additional context to the parties’ disinclination to cooperate during the underlying matter, each party filed its own pre-hearing stipulation. And, in a continuation of the spirit of non-cooperation, the parties filed separate pre-hearing stipulations in the instant matter. At the outset of the hearing in this case, and with the absence of a joint pre-hearing stipulation, the undersigned conciliated agreement on one of the taxable costs in this matter: Legacy agreed that it did not contest the School Board’s taxable cost for its expert witness in auditing (Laura Manlove) of $15,000.2 Petitioner’s Affidavit of Attorneys’ Fees and Costs details both the attorneys’ fees and costs that the School Board seeks in this matter. With respect to attorneys’ fees, it avers that the hourly rate actually billed by counsel was $200 for partners and associates. The affidavit includes the detailed billing records of the School Board’s Orlando-based law firm of record—Garganese, Weiss, D’Agresta & Salzman, P.A. (GWDS)—and the attorneys who worked on this matter. The summary of total attorneys’ fees requested is: Attorney Hours Rate Total Fees Debra S. Babb-Nutcher 728.30 $200.00 $145,660.00 Suzanne D’Agresta 1.50 $200.00 $300.00 Kate T. Hollis 776.40 $200.00 $153,000.00 Total: 1,506.20 $200.00 $298,960.00 At the November 6, 2020, final hearing, the School Board’s expert on attorneys’ fees, Nicholas A. Shannin, Esquire, testified to the reasonableness of the hours that the GWDS attorneys expended in this matter. Mr. Shannin has practiced law for 25 years, is board-certified in appellate practice, is the past President of the Orange County Bar Association, has previously represented governmental entities in litigation matters, and has been previously qualified in various courts and tribunals as an expert on attorneys’ fees. Mr. Shannin opined that the number of hours that the GWDS attorneys expended in this matter (1,506.20) was “reasonable, related, and necessary” in the “prosecution” of this case. He further opined that the hourly 2 The School Board presented the expert witness testimony of four other experts, who were also Brevard County School District employees and fact witnesses, during the underlying matter. The School Board does not seek to recover any expert witness costs for these other expert witnesses. rate of $200 for GWDS partners and associates was “incredibly reasonable,” and that, in fact, he felt $250-$350 per hour, for a government client, would be a more appropriate range. Mr. Shannin testified that, in his opinion, the foregoing totals (of fees and costs) are reasonable in light of the factors enumerated in the Rules of Professional Conduct, found in rule 4-1.5, Rules Regulating The Florida Bar, as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). Mr. Shannin noted the time and labor required, novelty, and skills needed in this matter as factors in the reasonableness of the fees, as the GWDS attorneys expended over 1,500 hours in approximately nine months of litigation, where much was fought or contested, and since charter termination matters do not have a “well-worn path” of past precedent to guide parties. He also noted that Ms. Babb-Nutcher and Ms. Hollis likely were precluded from other employment during the pendency of this matter. Mr. Shannin stated that the rate was reasonable, that the results were absolute, and that this matter was significant, noting that it involved “public policy matters at the highest level.” Legacy disputed the reasonableness of the School Board’s requested fees on several grounds: (a) the School Board failed to assert the 45-day hearing requirement in the Amended Charter, thus, prolonging this matter and adding additional fees that the undersigned should not award; (b) the use of “block billing” is an improper billing practice that makes it difficult to determine the reasonableness of the requested fees; and (c) because the undersigned found that the School Board failed to establish, by clear and convincing evidence, one of the five asserted grounds for termination, the undersigned should reduce the amount of fees awarded by 20 percent. With regard to the 45-day hearing requirement in the Amended Charter, as previously discussed, the undersigned, with the agreement of the parties at the December 13, 2019, telephonic pre-hearing conference, scheduled a final hearing in this matter that complied with the section 1002.33(8)(b)’s requirement that the hearing be conducted within 90 days. Respondent made no contemporaneous objection to the hearing being scheduled within the 90-day statutory timeframe. And, as detailed in paragraphs 5-15 above, Respondent requested (and received) continuances of the final hearing, and, unfortunately, COVID-19 played a part in the process. The undersigned does not find that the School Board’s behavior in the underlying matter caused an unreasonable delay that resulted in an unreasonable or unnecessary expenditure in attorneys’ fees. With regard to “block billing,” which is the practice of including multiple tasks within a single billing entry,3 Legacy provided two examples of GWDS billing entries that undoubtedly fall within this definition, one of which was: Date Description Hours Amount Lawyer 4/6/20 Review latest ESE report for trial; prepare outline of ESE issues in preparation for trial; review Legacy’s “Motion for Limine” to prohibit evidence of financial issues, and to prohibit prior issues; e-mail exchange with S. Archer regarding depositions and DOE letter; review information regarding R. Moreno; strategize regarding effect of DOE process for corrective action plan and relevance to termination process; e-mails with S. Archer regarding same; review Building Hope corporate information; legal research regarding basis for Motion in Limine in DOAH cases; e-mails with C. Norwood regarding 7.20 1,440.00 DSB 3 See Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1377-78 (M.D. Fla. 2010) (defining block billing as the practice of including “multiple tasks in a single time entry.”); Wise v. Kelly, 620 F. Supp. 2d 435, 450 (S.D.N.Y. 2008) (“Block billing is the practice of aggregating multiple tasks into one billing entry.”) (internal quotation marks omitted); Bobrow Palumbo Sales, Inc. v. Broan-Nutone, LLC, 549 F. Supp. 2d 274, 283 (E.D.N.Y. 2008) (“A reduction is also warranted where counsel engages in ‘block billing,’ such that multiple tasks are aggregated into one billing entry.”). deposition schedule; e-mail exchange with C. Norwood regarding false statements in Motion and contradictions; review replies; prepare draft notices of depositions with tentative dates; e-mail to C. Norwood requesting home addresses. 4/6/20 Exchange e-mails with S. Archer regarding financial statements and analysis/comparison; research regarding Building Hope and proposed representative for deposition; prepare memorandum and deposition notes regarding same; continued review of financial reports and update comparison spreadsheet with revenue from profit & loss information attached to December 10, 2020, Legacy board meeting minutes; review file and documents provided at March 31, 2020, meeting, prepare for April 7, 2020, meeting. 4.50 900.00 KTH The vast majority of the entries in the GWDS billing records are block entries. Although Mr. Shannin testified that these entries reflected each day being separated, with each entry containing sufficient detail as to the tasks completed, the undersigned finds that including multiple tasks within a single billing entity makes it difficult to assess the reasonableness of the totals on an hour-by-hour basis.4 The undersigned credits much of Mr. Shannin’s testimony as to the reasonableness of the hourly fee, as well as many of rule 4-1.5’s factors that 4 Legacy also introduced into evidence some of the billing records relied on in Lincoln Memorial Academy, which reflected that Manatee County School Board’s outside attorneys did not engage in block billing, at least during the attorneys’ fees phase of that matter. ALJ Robert Cohen found that these attorneys “maintained detailed records of all services rendered as evidence of the extensive time and effort dedicated to this matter.” F.O. at 6. Additionally, ALJ Cohen found that the respondent “did not dispute or otherwise offer any evidence disputing the reasonableness of the hourly rates charged[.]” F.O. at 11. he relied on to opine as to the reasonableness of claimed fees in this matter. However, though Mr. Shannin’s testimony as to the reasonableness of the hours devoted to this matter was credible and is generally accepted, due to the pervasiveness of the block entries, the undersigned is unable to perform an independent reasonableness assessment on an hour-by-hour basis. As an alternative approach, the undersigned shall apply an across-the-board percentage cut of 10 percent to the total hours of the GWDS attorneys, recognizing that its hourly rate of $200 per hour is reasonable. Such a reduction yields the following totals: Attorney Hours Rate Total Fees Debra S. Babb-Nutcher 655.47 $200.00 $131,094.00 Suzanne D’Agresta 1.35 $200.00 $270.00 Kate T. Hollis 698.76 $200.00 $139,752.00 Revised Total: 1,355.81 $200.00 $271,162.00 As to Legacy’s contention that the undersigned should reduce fees by 20 percent to reflect Legacy prevailing on four of the five bases for termination in the underlying matter, the undersigned finds that Legacy “prevailed” in the underlying matter, and is entitled to attorneys’ fees and costs, as prescribed in section 1002.33(8)(b). Turning to costs, the School Board’s Motion to Tax Costs, which detailed various costs incurred in the underlying matter, and the Affidavit of Attorneys’ Fees and Costs, which additionally provided supporting documentation for these costs, requests the following recoverable costs: Cost Amount Deposition Transcripts $5,282.55 Final Hearing Transcripts $15,501.50 Copy Costs $1,201.75 Trial Expert Witness Costs (Manlove) $15,000.00 Total: $36,985.80 At the final hearing, Mr. Shannin testified that his agreed hourly fee for providing expert testimony was $400 per hour. He further testified that he spent 10 hours in total (nine hours or preparation, and one hour for testimony at the final hearing), and expected to submit an invoice to the School Board for $4,000.00. The undersigned finds that this fee is an additional recoverable cost for the School Board. The undersigned finds that the foregoing expenditures total $40,985.80 in taxable costs, and shall be recoverable by the School Board, as prescribed in section 1002.33(8)(b). Sanctions As detailed in paragraphs 5-14 above, the School Board filed multiple motions to compel, for Legacy’s failure to timely and properly respond to the School Board’s discovery requests. The undersigned entered multiple Orders concerning these motions, the latest being a May 4, 2020, Order Granting Motions to Compel, which ordered Legacy to provide verified answers to its second amended responses to interrogatories no later than May 8, 2020, and that if Legacy failed to provide responsive answers to those interrogatories, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. The Order Granting Motions to Compel also ordered Legacy to provide all responsive documents requested no later than May 8, 2020, and that if it failed to provide responsive, non- privileged documents as ordered, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. Legacy actually e-filed its responsive answers to interrogatories and documents with the Division on May 9, 2020, which was a Saturday, and the School Board did not receive them until Monday, May 11, 2020, through the Division’s e-filing system. Legacy’s qualified representative and attorney did not attempt to timely provide these remaining responsive answers and documents utilizing methods other than the Division’s e-filing system. In essence, to respond to the School Board’s discovery (interrogatories and requests for production) served on January 20, 2020, it took multiple extensions, motions to compel, hearings on motions to compel, Orders on motions to compel, and, ultimately, the May 4, 2020, Order Granting Motions to Compel, to get Legacy to provide full responses, which even then ran afoul of the deadline provided in that May 4, 2020, Order Granting Motions to Compel. At the final hearing in the underlying matter, the undersigned excluded from evidence documents that were not provided pursuant to the May 4, 2020, Order Granting Motions to Compel. Significantly, the undersigned excluded progress monitoring reports related to ESE students, because the School Board requested these progress monitoring reports during discovery, but Legacy failed to produce them. Although the School Board provided clear and convincing evidence that Legacy failed to provide significant compensatory education service minutes to its students, the undersigned also found: Although [Legacy ESE teacher Jamie Luna’s] testimony that Legacy has completed regular and compensatory ESE services for the 2019-2020 school year was persuasive, it is not clear, because of the lack of admissible progress monitoring reports, that Legacy’s ESE students received the services required under their IEPs. F.O. at 33. The School Board requests additional monetary sanctions against Legacy, its Qualified Representative, and its counsel of record, for its conduct in failing to respond to discovery and the undersigned’s Orders. Legacy argues that sanctions are not warranted because Ms. Montford, its corporate representative, interim principal, and “designee” of the Governing Board to facilitate discovery requests, was diagnosed with serious, documented health issues during the pendency of this matter, which required immediate treatment by healthcare providers in North Carolina, and these serious health issues should be considered in understanding any delays in discovery. The undersigned previously found, in the underlying matter, that Ms. Montford’s serious health issues constituted good cause for a continuance of the final hearing. Legacy also argues that the COVID-19 pandemic further complicated its ability to respond to the School Board’s discovery. Legacy’s Qualified Representative, Mr. Norwood, contends that any discovery delays were beyond his control, and were the responsibility of Legacy, not him. Legacy’s counsel of record, Mr. Clark, who did not appear at the final hearing or at the final hearing in the underlying matter, but whose signature appears on Legacy’s pleadings, did not make any argument in Legacy’s Proposed Final Order, but would presumably similarly contend that any discovery issues were beyond his control. The undersigned finds that Legacy’s failure to timely provide discovery, after numerous motions to compel and Orders from the undersigned, warranted the imposition of sanctions at the final hearing in the underlying matter, in the form of the exclusion of evidence Legacy wished to introduce. See Fla. R. Civ. P. 1.380(4)(b)(2)(B). The undersigned declines to impose additional sanctions.
