The Issue The issue is whether the School Board has the authority to include a provision in a charter that limits a charter school's annual capacity to the number of applications received as of a date certain (March 1) and whether that proposed enrollment cap is legal under Florida law.
Findings Of Fact RCA is a Florida not-for-profit corporation organized for the purpose of governing and operating charter schools. The School Board is a public body corporate, organized and existing under the Florida Constitution and Florida Statutes to govern the provision of public education to students in Leon County. On August 1, 2011, RCA submitted an application to replicate a high-performing charter school to the School Board, requesting approval of a start-up or new charter school in Leon County based upon a high-performing charter school already in existence. On September 20, 2011, School Board staff sent written correspondence to the charter school informing them of several issues with its application, and that approval of their application would be contingent upon the fulfillment of stipulations set forth in the correspondence. In paragraph 11 of the correspondence, the School Board informed the charter school that it would be required to "provide documentation to Leon County Schools by March 1, 2012, regarding the number of students who have completed official applications at the school, and this number will be utilized to set enrollment for the 2012-2013 school year." RCS responded to the September 11 letter through email on September 23, 2011, stating that most of the issues outlined therein would be worked out during contract negotiations. School Board staff responded by reiterating that, for those items to be handled through the charter, the application would not be approved "as is." The charter application was considered at its September 27, 2011, regular board meeting, and was unanimously approved, "contingent upon amendments to the application and compliance with deadlines as outlined in the [September 20] letter to [RCA]. RCS believed that, under the charter school statutes set out at sections 1002.33 and 1002.3311, Florida Statutes, and related regulations, the School Board was not legally empowered to conditionally approve a high-performing charter application, but instead could only legally approve or deny the application under limited circumstances. RCS communicated this position to the School Board during the charter negotiation process at the parties' meeting to negotiate the charter in January 2012. In late November 2011, the parties began negotiating the terms of the charter and were ultimately able to reach agreement on all issues except the March 1 enrollment cap issue that is the subject of this proceeding. On December 19, 2011, the School Board received a response from RCS to the correspondence of September 20 which stated "[t]he school's board will either have documentation that 862 students have enrolled in the school and in Genesis by August 1, 2012, or will provide documentation of available funding and an approved budget that will fully support the program described in the school's application at the number of students enrolled in the school and in Genesis by August 1, 2012. The school will provide documentation to Leon County Schools by March 1, 2012, regarding the number of students who have completed official applications to the school, and this number will be utilized to set enrollment for the 2012-2013 school year." However, at no time did RCS agree to cap the enrollment for the proposed school as of the number of applications received by March 1 of any given year. In January 2012, representatives for the parties met to work through specific terms in the proposed charter. The parties were unable to reach agreement on the March 1 enrollment deadline language. The language in the proposed charter relating to the disputed issue states in pertinent part, "[t]otal annual enrollment for each year shall be determined by the total number of applications received by March 1 of each year." RCS submitted a request for mediation in accordance with section 1002.33(6)(h). The parties participated in two days of mediation, assisted by Thomas Bateman, Supreme Court Certified Circuit Court Mediator, and were able to resolve all outstanding issues except for the issue relating to the March 1 enrollment deadline. Mr. Bateman submitted a mediation report to the Florida Department of Education declaring impasse as to this one issue. On March 12, 2012, RCS filed a Notice/Request for Initiation of Proceedings with the Division of Administrative Hearings (DOAH). RCS has broken ground on, and is currently in the process of constructing, a multi-million-dollar school facility in Leon County to house the school. Construction is currently scheduled to be completed as of late summer 2012. RCS operates a number of other charter schools throughout the state and no other school district in which it owns and operates charter schools is enrollment limited to a March 1 deadline. The School Board has granted charters to a number of other charter schools in Leon County. Currently, there are five charter schools operating in Leon County. All current charters contain the enrollment deadline provision at issue in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Leon County School Board issue a final order finding that the School Board's proposed contractual provision proposing a March 1 enrollment deadline does not violate the charter school law and does not constitute an unadopted rule. DONE AND ENTERED this 1st day of June, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2012.
The Issue Whether Respondent, Hillsborough County School Board (School Board), erred in denying the Petitioner's request to consolidate its two charter contracts into one charter agreement.
Findings Of Fact Trinity School is a Florida corporation that owns and operates two charter schools in Hillsborough County, Florida. The two charter schools are known as Trinity Lower School for Children and Trinity Upper School. Trinity Lower School for Children provides education for 425 students in kindergarten through fitth grade. Trinity Upper School serves 225 students in sixth through eighth grades. The School Board is constitutionally and statutorily charged with the operation and supervision of all K through 12 public schools in Hillsborough County, Florida. Art. IX, § 4(b), Fla. Const.; §§ 1001.32(2) and 1003.02. The two Trinity charter schools are part of the public school system and are sponsored by the School Board. § 1002.33. Trinity School was formed by a group of educators and parents of children who had attended a private Roman Catholic School that was closing. In 1999, Trinity School submitted its application to form a K through eighth grade charter school. Its application was approved by the School Board, and Trinity began operation in 1999. Trinity School's population grew steadily from its inception and in 2003, Trinity School sought to purchase a building across the street from its campus. Ms. O'Dea, the founder, principal, chief executive, and educational officer for Trinity School, explained that Trinity School learned that it would be eligible for additional federal start-up money, if Trinity School divided its charter into two separate charters. By dividing the original charter and creating a new charter school for the middle school, Trinity School was able to obtain at least $450,000.00, in federal start-up funds which was used to help purchase a building across the street from the original school, grow the number of classes, as well as increase the number of programs and teachers. In 2003, Trinity School applied for a charter for the Trinity Upper School, which would serve sixth through eighth grades. The School Board approved the charter for the Upper School, and Trinity School was able to receive the federal start-up money. The Trinity Upper School began operating under its own charter in 2004. Although two separate charters, both Trinity Schools are operated by the same parent corporation, follow the same Bank Street School principles of educational development, and are located in the same location. Further, the record showed through the testimony of Ms. Difranco, Trinity School's director of finance, that the two charter schools "actually function as one school[,] [w]e share buildings; we share a media center; we share staff; we use one accounting system." On April 3, 2008, Trinity School wrote the School Board's representative to request a change in Trinity School's financial reporting to the school district. Trinity School's letter recognized that both schools operated "under the fiscal umbrella of The Tampa School Development Cooperation [sic], but the schools' finances are reported to the district separately." Trinity School advised the School Board representative that combining the schools' financial reports would benefit "both our accounting practices and the school district." On May 15, 2008, Ms. Hodgens, the School Board's supervisor of charter schools, wrote Ms. O'Dea: After consulting with the Department of Education regarding your request to combine Trinity School for Children and Trinity Upper School, the district has been advised that you are able to combine the two schools. I will present your request to the Hillsborough County School Board regarding the combination of the two schools during your schools' contract renewal process. On March 15, 2010, the School Board wrote Ms. O'Dea concerning the renewal of the charters. The School Board informed Ms. O'Dea that "Trinity School for Children/Trinity Upper is scheduled for Contract Renewal Review[,]" and requested that a list of materials be provided for the review. On June 28, 2010, Ms. Hodgens, referencing her earlier letter dated May 15, 2008, wrote Ms. O'Dea concerning Trinity School's request to combine the charters during the contract renewal period. Specifically, Ms. Hodgens wrote: After several conversations with district staff, there is no educational benefit for students by combining the two schools. Due to this fact, the Superintendent will not be making this recommendation to the School Board at the time of your contract renewal. Trinity School and the School Board brought their consolidation dispute before the Department of Education under section 1002.33(6)(h). On March 30, 2011, Dr. Eric Smith, the Florida Commissioner of Education, entered a Mediation Report of Impasse, stating that the parties had reached an impasse and that the matter could not be settled through mediation, pursuant to section 1002.33(6)(h). Ms. Difranco, who has been Trinity Schools' director of finance for the past two years, credibly testified that both schools functioned administratively as one school, but were required to file separate fiscal reports. Furthermore, she credibly testified that creating the two separate fiscal reports for each school, results in Trinity School's accountants and personnel having to perform additional duties of separating the relevant data by school. Ms. Difranco credibly testified that she had conducted a cost analysis comparing the costs of treating the two schools as separate charters with an estimated cost of operating under one charter. According to Ms. Difranco, the savings to Trinity School would be approximately $123,000.00, a year. The largest bulk of the savings would come from a reduction in the administrative fee Trinity School pays to the School Board to administer the charter schools. Ms. Difranco estimated that the administrative fee paid to the School Board would reduce by approximately $65,000.00, a year. The reason for the reduction in administrative fees received by the School Board is the legislature's enactment of section 1002.33(20)(a), Florida Statutes (2011). Section 1002.33(20)(a), in part, changed the formula used to calculate the administrative fee charged to charter schools by district school boards. This change in the formula for funding results in a reduction of the amount of money that the School Board will receive as administrative fees from Trinity School if the two charters are combined into one charter. The School Board, in making its decision about whether or not to grant the request to combine the two charters into one charter, considered the fact that it would receive less money from the administrative fees, if the two charters were combined. Both Trinity Schools have received from the State of Florida "A" ratings and are respected charter schools. Trinity Schools, however, have not been designated as "high-performing" charter schools by the Commissioner of Education, as defined by section 1002.331, Florida Statutes (2011). The reason that Trinity Schools’ two charters do not meet the statutory definition of "high-performing" charter school under section 1002.331 is due to past negative fund balances. The record, however, showed that Trinity Schools are on the verge of eliminating the financial difficulties. Specifically, the testimony showed that in 2009-2010 school year, Trinity Schools had a negative fund balance. However, the testimony showed through Ms. Difranco that for school years 2010-2011, and the current school year 2011-2012, that Trinity Schools have met the fiscal requirements.
The Issue The issue is whether Respondent's policy relative to the applicability of the maximum class-size statute to charter schools is a rule as defined in Section 120.52(16), Florida Statutes, which has not been adopted as required by Section 120.54, Florida Statutes.1/
Findings Of Fact Petitioners own and/or operate eight charter schools in Florida. They have been "substantially affected" by Respondent's maximum class-size policies at every level of implementation. Respondent's regulatory scheme requires charter schools to submit information and to comply with statutory class-size levels. Respondent's determination of non-compliance triggers penalties and adverse consequences for charter schools. Respondent has a comprehensive data management system for public school reporting and accountability. The system includes detailed definitions and reporting requirements on many facets of public education, including information on students, teachers, and public school facilities. This information has been incorporated by reference into Florida Administrative Code Rule 6A-1.0014, as database manuals. For example, the manuals contain a detailed student element using the Florida Inventory of School Houses (FISH) and a Classroom Identification Number, which creates an identifier for every classroom in every building and facility in the school district. Charter schools that do not have a "FISH" number may have one generated. Respondent uses a computational algorithm to calculate class size. The algorithm uses data elements and correlations to create classroom ratios. Many of the data elements are required by statute and/or existing rules for all public schools, including charter schools. For each school that does not meet class-size compliance requirements, a portion of funds attributed to that school will be transferred from operational funding to capital outlay funds. The amount transferred is equal to the full-time equivalent funds for the number of students over the cap. Respondent makes the initial transfer calculation, which is then replicated and approved by the State Board of Education, the Florida Education Finance Allocation Committee, and the Legislative Budget Committee. In November of 2007, Respondent calculated class size on the individual classroom level for all public schools, including charter schools. Respondent utilized data from the October student membership survey, which consists of data collected by the Respondent from public schools. The algorithm used by Respondent to calculate class size, including the data collected in November 2007, was not adopted as a rule until after the commencement of this proceeding. Class-size compliance forms, mandated by Respondent for use by charter schools that are determined by Respondent not to be in compliance with the maximum class-size act, have also not been adopted by any formal rulemaking process. Respondent's policies include an informal process for "appealing" adverse determinations. The informal appeal process has not been adopted as a rule. Respondent has published several Technical Assistance Papers, including TAP Nos: FY2005-04 and FY2006-01, applying the maximum class-size act and a computational class-size algorithm to charter schools. These papers were not adopted through the formal rulemaking process. Respondent withdrew TAP Nos: FY2005-04 and FY2006-01 by memorandum dated May 22, 2008. However, Respondent still maintains its policy that the maximum class-size act applies to Florida charter schools. In 2007, charter schools reported data and received data from Respondent regarding initial class-size figures. Some charter schools appealed the class-size calculations and the resulting transfer of operational funds to the State Board of Education. Cape Coral Charter School submitted information to Respondent, leading to a downward adjustment in the funds to be transferred to capital outlay. However, Cape Coral Charter School lost funds in part because of Respondent's initial determination that Cape Coral Charter School had failed to comply with the maximum class-size act. Respondent also formally determined in February 2008, that Cape Coral Charter School was ineligible to offer a voluntary pre-kindergarten program because of its 2007 determination that Cape Coral Charter School was not in compliance with the class-size strictures. The Florida Education Finance Program Appropriation Allocation Conference verified the transfer of capital outlay categorical funds as recommended by the Commissioner of Education on January 17, 2008. The Commissioner of Education recommended transfers in funds based upon class-size compliance to the State Board of Education, which approved the transfers on February 4, 2008. On February 21, 2008, the Legislative Budget Committee approved the transfer calculations. Florida Administrative Code Rule 6A-1.0014 incorporates by reference the database manual that Respondent uses to collect data from public schools on teachers, students and classroom space. The amendment to the rule, which became effective November 26, 2008, consists of an additional page in the database manual (Appendix AA). Appendix AA sets forth Respondent's class-size algorithm, which has been in use for several years. Appendix AA does not address the applicability of the maximum class-size act to Florida charter schools.
The Issue The issues are whether the Department of Education’s (Department) decision to deny Petitioner’s application for capital outlay funding for the 2017-2018 school year is in conflict with Florida Administrative Code Rule 6A-2.0020(4)(b), as amended effective August 13, 2017, and is, therefore, based on an unadopted rule; and whether the Department’s decision to deny the application should be determined under the prior version of the rule.
Findings Of Fact Petitioner is a not-for-profit public charter school located in Ocoee, Florida, serving approximately 260 students in kindergarten through grade five. The school opened in the 2012-2013 school year, but did not receive a school grade until 2014-2015. That year, it received a grade of “B.” It received a grade of “D” in 2015-2016 and a “D” in 2016-2017. Since school year 2015-2016, Petitioner has been operating under a School Improvement Plan, approved and reviewed by its sponsoring school district, the Orange County School District. A School Improvement Plan is a plan designed to improve academic performance and is required when a charter school receives a grade of “D” or “F.” See § 1002.33(9)(n)1., Fla. Stat. (2016). The Department is the agency charged with the responsibility of administering capital outlay funds for charter schools pursuant to section 1013.62, Florida Statutes.1/ Charter school capital outlay funding is a source of funds for charter schools, which must meet eligibility criteria set forth in section 1013.62. The funds can be used only for specific purposes set forth in the statute, such as the purchase of real property, construction of school facilities, purchase of vehicles, computer equipment and software, insurance for school facilities, and renovation and repair of school facilities. See § 1011.71(2), Fla. Stat. Petitioner has used the funding “for subsidizing or supplementing [its] rent.” If funds are appropriated by the Legislature, each year the Department is required to allocate capital outlay funds to eligible charter schools. The allocation is based on the number of students in the school. In school year 2017-2018, charter school capital outlay consisted of a combination of state and local funds, which included both a state appropriation and revenue resulting from the discretionary millage level levied by local school districts under section 1011.71(2). The state appropriation for charter school capital outlay for that year was $50 million. In order to receive capital outlay funds, a charter school must satisfy a number of criteria, one of which is that the school must have “satisfactory student achievement based on state accountability standards applicable to the charter school.” § 1013.62(1)(a)3., Fla. Stat. A school’s budgetary concerns are not a consideration in the approval process. Rule 6A-2.0020 governs eligibility for charter school capital outlay funds and implements the statutory requirement for satisfactory student achievement. The previous version of the rule, effective December 15, 2009, stated, in part: (2) The eligibility requirement for satisfactory student achievement under Section 1013.62, F.S., shall be determined in accordance with the language in the charter contract and the charter school’s current school improvement plan if the school has a current school improvement plan. A charter school receiving an “F” grade designation through the state accountability system, as defined in Section 1008.34, F.S., shall not be eligible for capital outlay funding for the school year immediately following the designation. Under this version of the rule, a charter school that received an “F” grade was automatically ineligible for capital outlay funding. A school that received any grade other than an “F” was evaluated based upon satisfaction of performance metrics in the charter school contract and the School Improvement Plan, if there was one. Therefore, capital outlay funding was not guaranteed to any charter school under the former version of the rule. The 2016 Legislature amended section 1013.62 to change eligibility criteria for charter school capital outlay funding, although the section of the statute relating to satisfactory student achievement was not amended. The goal of the Legislature was to raise academic standards required of charter schools in order to qualify for capital outlay funding. In order to comply with these statutory changes, the Department proposed revisions to rule 6A-2.0020. These proposed revisions also included changes to the criteria for determining satisfactory student achievement that would be required in order to be eligible for capital outlay funds. Rule development began in May 2016, and the Department anticipated that the amended rule would go into effect before school year 2016-2017. The Department determined that revisions to the satisfactory student achievement portion of the rule were necessary in order to be consistent with the Department’s overall approach to school quality and accountability, which included the adoption of new standards and assessments. Based on a review of the school grading statute, and the definition of a “D” school as one that is making less than satisfactory progress, the Department determined that a school earning an “F” or two consecutive grades below a “C” was not consistent with the requirement for satisfactory student achievement. The proposed rule was approved by the State Board of Education at the September 2016 board meeting, but was later withdrawn for further revision. On February 28, 2017, the Department published a Notice of Proposed Rule, proposing that, beginning in school year 2017- 2018, a charter school with two consecutive grades below a “C,” as well as a single “F” grade, would be ineligible for capital outlay funds. The amended portion of the rule that addresses satisfactory student achievement and which is at the heart of this dispute, states as follows: Satisfactory student achievement under Section 1013.62(1)(a)3., F.S., shall be determined by the school’s most recent grade designation or school improvement rating from the state accountability system as defined in Sections 1008.34 and 1008.341, F.S. Satisfactory student achievement for a school that does not receive a school grade or a school improvement rating, including a school that has not been in operation for at least one school year, shall be based on the student performance metrics in the charter school’s charter agreement. Allocations shall not be distributed until such time as school grade designations are known. For the school year 2016-17, a charter school that receives a grade designation of “F” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, a charter school that receives a school improvement rating of “Unsatisfactory” shall not be eligible for capital outlay funding. The words, “Beginning in the school year 2017-18,” were included in the rule to make it clear that the new criteria for satisfactory student achievement would not apply to schools in school year 2016-2017, but instead would apply to schools applying for funding for the school year 2017-2018. These changes were approved by the State Board of Education on March 22, 2017, or before charter schools began submitting applications for funding for the following school year. Due to a third-party challenge of the new rule, however, it did not become effective until August 13, 2017. Fla. Ass’n of Indep. Charter Sch. v. Fla. Dep’t of Educ., Case No. 17-1986RP (Fla. DOAH July 21, 2017), aff’d, 2018 Fla. App. LEXIS 8802 (Fla. 1st DCA June 21, 2018)(per curiam). The Department requires charter schools to submit an application for capital outlay funding each year and requires the sponsoring school district to review the application and make a recommendation regarding eligibility. The applications are filed with the Department using a web-based system known as the Charter School Portal. The Commissioner of Education then makes the final decision as to whether the school has satisfied all eligibility requirements. For the school year 2017-2018, applications for charter school capital outlay funding were due by July 7, 2017, and each sponsoring school district was required to review and recommend its charter schools’ capital outlay plans by July 28, 2017. For school year 2017-2018, 582 applications were submitted for review by the Department. Petitioner began receiving capital outlay funding in school year 2015-2016. It also received funding for school year 2016-2017. Funding in those two years was based on the old rule. Because Petitioner expected, but was not guaranteed, to get capital outlay funding again in 2017-2018, it planned its budget for the upcoming school year with those funds included. Had its application been approved, Petitioner would have received approximately $68,000.00 in capital outlay funding. On June 27, 2017, or three months after the rule was adopted by the State Board of Education, Petitioner submitted its application for charter school capital outlay funding. The Department did not inform Petitioner by separate written notice that the new rule would apply to all capital outlay applications for school year 2017-2018.2/ On July 13, 2017, the Orange County School District recommended that Petitioner be eligible for capital funding. Based on the amended rule, which became effective on August 13, 2017, Petitioner was determined ineligible for capital outlay funding for the 2017-2018 school year, as its two most recent school grades from 2015-2016 and 2016-2017 were lower than a “C.” This determination was consistent with the language in the revised rule, which stated clearly that the rule would apply “Beginning in the school year 2017-18.” In making this determination, the Department applied the rule in a prospective manner, beginning with the 2017-2018 school year, but it used the two most recent school grades (2015-2016 and 2016-2017) to determine eligibility for capital outlay funds. Petitioner was one of approximately a dozen schools that were impacted adversely by the change in the rule. On August 29, 2017, the Department sent an automated email to Petitioner stating that the school was ineligible for capital outlay funds. The email informed Petitioner that the basis for the denial could be accessed on the web-based system that the school used for filing its application. Petitioner also was notified of the denial of capital outlay funds by letter dated October 30, 2017, and yet a third time in an amended letter dated February 2, 2018. The last paragraph in the amended letter reads as follows: After review of your Charter School Capital Outlay Plan, submitted for 2017-18 school year, it has been determined that your school is ineligible to receive charter school capital outlay fund. According to Rule 6A- 2.0020(4), Florida Administrative Code, beginning in the 2017-18 school year, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Therefore, Kids Community College Charter does not meet the requirements for charter capital outlay funding for the 2017-18 school year, as the school received two consecutive grades lower than a “C” [in school years 2015-2016 and 2016-2017]. Petitioner contends that because the letter conflicts with the terms of the amended rule, it constitutes an unadopted rule and cannot be used as the basis for denying its application. In the same vein, Petitioner argues that the most reasonable interpretation of the rule is that only school grades earned beginning in 2017-2018 and beyond can be used to satisfy eligibility for capital outlay funds. This interpretation of the rule, however, would mean that charter schools with any grade designation, including “Fs,” could receive funding in school years 2017-2018 and 2018-2019. Also, it would effectively delay implementation of the new academic standards for two years. In short, if Petitioner’s interpretation is accepted, the new eligibility criteria could not take effect until school year 2019-2020. This is contrary to the Department’s interpretation of the rule, which determines eligibility for capital outlay funds based on the new criteria beginning in school year 2017- 2018. The Department’s interpretation of the rule is as or more reasonable than the interpretation offered by Petitioner. On February 23, 2018, Petitioner filed its request for an administrative hearing to contest the Department’s decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order denying Petitioner’s application for capital outlay funding for the school year 2017-2018. DONE AND ENTERED this 9th day of August, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2018.
The Issue Whether Petitioners, Renaissance Charter School, Inc., and Renaissance Charter School at Tradition, can be required by the St. Lucie County School Board ("School Board") to offer regular school busing to all eligible charter school students residing more than two miles from the charter school. Whether Petitioner, Renaissance Charter School at Tradition, breached its contract with the School Board by not providing transportation to students in accord with the parties' charter school contract and Florida Statutes. Whether School Board Policies 3.90 and 8.31 constitute an invalid exercise of delegated legislative authority. Whether the School Board has charter busing policies which amount to illegal, unadopted rules under chapter 120, Florida Statutes (2014).
Findings Of Fact The Parties Renaissance Charter School, Inc., is a not-for-profit Florida corporation. Renaissance Charter School, Inc., currently owns and operates two charter schools in St. Lucie County: Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. The School Board is the "sponsor" of Renaissance Charter School at Tradition within the meaning of the charter school statute, section 1002.33. The School Board's Approval of Renaissance Charter School at Tradition's Charter Application and Charter Contract On August 1, 2012, a charter school application was submitted to the School Board by Renaissance Charter School, Inc., on behalf of Renaissance Charter School at Tradition. During the charter application and approval process, the School Board consistently contended that charter schools in St. Lucie County are required by law to offer regular school busing to all eligible students residing more than two miles from their charter school.1/ On September 17, 2012, the School Board's Charter School Evaluation Team recommended approval of the Renaissance Charter School at Tradition charter school application, subject to the charter school providing "a viable transportation plan that meets statutory requirements once a school site has been finalized." On May 14, 2013, the School Board, at a regular board meeting, unanimously approved its charter contract with Renaissance Charter School, Inc., for Renaissance Charter School at Tradition. The Renaissance Charter School at Tradition charter contract became effective upon approval by the School Board at its May 14, 2013, meeting. The term of the charter contract is five years, commencing on the first day of the 2013-2014 school year, and ending on June 30, 2018. The School Board and Renaissance Charter School at Tradition have a valid and binding charter school contract that is still in full force and effect. Applicable Transportation Provisions of Renaissance Charter School at Tradition's Charter Contract Section 6 of the charter contract between the School Board and Renaissance Charter School at Tradition, which governs student transportation, provides as follows: SECTION 6: TRANSPORTATION Cooperation Between Sponsor and School: The School shall provide transportation to the School's students consistent with the requirements of Part I.E. of Chapter 1006, and Section 1012.45, F.S. The School may contract with the Sponsor to provide transportation service. Reasonable Distance: Transportation will not be a barrier to equal access for all students residing within the District, and the School shall provide transportation to all students residing in the District subject to the limitations in this Section 6.B. Students residing within two miles of the school will be expected to furnish their own transportation, except that certain students, as specified in Section 1006.21, F.S., for example students with disabilities and elementary grade students who are subject to specified hazardous walking conditions, must be provided transportation, regardless of the distance from the school. For students who are geographically isolated, or who are unable to be transported on a school bus due to disabilities, the School will offer reimbursement to eligible parents residing within the District. This parental reimbursement shall be equivalent to the monies provided by the Sponsor to the School for transportation of the student. At the time of student application for enrollment, the School shall be responsible for informing parents of the transportation options available, including the reimbursement amount available in lieu of provided transportation to qualifying students. Compliance with Safety Requirements: The School shall demonstrate compliance with all applicable transportation safety requirements. Unless it contracts with the Sponsor for the provision of student transportation, the School is required to ensure that each school bus transporting the School's students meets applicable federal motor vehicle safety standards and other specifications. The School agrees to monitor the status of the commercial drivers' licenses of each school bus driver employed or hired by the School (hereafter "School Bus Drivers") unless it contracts with Sponsor to provide such services. The School will provide the Sponsor, via the Charter Schools Support Department, an updated list each quarter of all School Bus Drivers providing commercial driver's license numbers, current license status and license expiration dates. Fees: The School may not charge a fee for transportation to which the student is entitled pursuant to state law. The School shall reimburse parents for parent-provided transportation costs if the student is legally entitled to transportation. Private Transportation Agreement: In the event the School will be contracting with a third party to provide transportation to its students, the School shall provide a copy of the transportation contract to the Sponsor at least sixty (60) days prior to the initial day of classes. Reimbursement for School Funded Transportation: The rate of reimbursement to the School by the Sponsor for transportation will be equivalent to the reimbursement rate provided by the State of Florida for all eligible transported students. Section 1 B) 4) of the charter contract further provides: 4) Statutory Requirements: The Parties will comply with Section 1002.33, F.S., and any regulations adopted by the State Board of Education or other state agency, or amendments thereto, pertaining to charter schools, and all applicable federal, state and local laws pertaining to civil rights and student health, safety and welfare. If any conflict exists between the provisions of the approved application or this Charter and any specific provision of law, then the provisions of the law shall prevail. The School shall be bound by amendments to applicable statutes, rules, and regulation, as any such amendments take effect. Unless specifically incorporated herein, the policies of the Sponsor do not apply to the School. However, if the School is statutorily required to have a policy and does not, the Sponsor's policy shall be deemed to apply. Students of Renaissance Charter School at Tradition and the School's Transportation Policy For a student to attend Renaissance Charter School at Tradition, their parents must apply during an open enrollment period, and a lottery system is used to determine who may attend. Parents whose child is selected through the lottery to attend Renaissance Charter School at Tradition are given a certain number of days to accept or decline the seat. Then the process starts over again until all seats are filled or there are no other students on the list. Renaissance Charter School at Tradition opened for the 2013-2014 school year as a K-6 school with 695 enrolled students. Projected enrollment for the 2013-2014 school year was 661 students. However, before the 2013-2014 school year began, projected enrollment had increased to 745 students. Renaissance Charter School at Tradition opened for the 2014-2015 school year as a K-7 school with 890 enrolled students and an enrollment cap of 945 students. For the 2015-2016 school year, Renaissance Charter School at Tradition plans to open as a K-8 school with projected enrollment of 1,075 students. For the 2016-2017 school year, Renaissance Charter School at Tradition plans to open as a K-8 school at maximum capacity of 1,145 enrolled students. The only "A" graded schools in St. Lucie County, Florida, for the 2013-2014 school year were Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. There is a waiting list for grades K-3 at Renaissance Charter School at Tradition. Parents of students enrolled at Renaissance Charter School at Tradition recognize that Renaissance Charter School at Tradition provides their children with a unique educational opportunity. Parents of students enrolled at Renaissance Charter School at Tradition recognize that the decision to enroll their children at Renaissance Charter School at Tradition is a personal choice and not a privilege. Parents of students enrolled at Renaissance Charter School at Tradition are active partners in the education of their children. Renaissance Charter School at Tradition does not provide regular school busing to its students who reside more than two miles from the charter school. Renaissance Charter School at Tradition re-evaluates its transportation policies on a yearly basis. Parents of students are informed that Renaissance Charter School at Tradition does not offer regular school busing in informational meetings before they apply for their child to attend the school. Parents of students enrolled at Renaissance Charter School at Tradition sign a "Parent Obligation Form," contractually obligating themselves "[t]o provide transportation to and from the school for my child." Parents are required to sign the "Parent Obligation Form" every year as part of the enrollment process. The transportation policy of Renaissance Charter School at Tradition, which is given to all parents upon enrollment, apprises parents that the school does not offer regular school busing to students, but that the school agrees to provide "transportation or an equivalent reimbursement" to students in certain legally-defined circumstances. The transportation policy of Renaissance Charter School at Tradition provides as follows: Student Transportation Policy Renaissance Charter School at Tradition's [sic], is and always has been, fully committed to ensuring that transportation will not be a barrier to equal access for all students residing within the District. To date, there are more students attending our newly-opened charter school than was projected for our first year. Although our school does not presently offer busing as a means of school transportation, we are in the process of helping put together parent carpools for those parents who want their children to share rides to and from school. Moreover, transportation, or an equivalent reimbursement, will be provided to any student who falls under any of the following categories [taken from Florida State Statute 1006.21]: Any student in grades K-8 who does not otherwise have access to an adequate educational facility or opportunity. Any student in grades K-6 who are subjected to a hazardous walking condition as defined in s. 1006.23 while en route to or from school. Any student in grades K-8 who have a documented transportation need in their IEP. Any student in grades K-8 who are pregnant, student parents, and/or the children of these students if a teenage parent program is presented at the school. If you feel your child falls within one of the categories listed above, please notify the front office and we will work with you on a case-by-case basis. The School Board rejected the transportation policy of Renaissance Charter School at Tradition because it does not provide for the regular school busing of all students residing more than two miles from the charter school. Renaissance Charter School at Tradition's failure to provide regular bus transportation to all students residing more than two miles from the charter school does not constitute a barrier to equal access to all students. At the hearing, no credible and persuasive evidence was presented that any students lack equal access to an adequate educational facility or opportunity. No evidence was presented that any students are subject to hazardous walking conditions while en route to or from the charter school. There is one student who enrolled on January 20, 2015, who has a transportation need documented in their individual education plan, but the child's parent has chosen to provide transportation. No evidence was presented of any students who are pregnant or who have given birth to any children. Renaissance Charter School at Tradition opens at 6:00 a.m. and closes at 6:00 p.m. There are before-and-after- care private buses that take students off-site to other organizations, such as to karate and the Boys and Girls Clubs. Renaissance Charter School at Tradition also encourages parents' use of carpooling their children to and from school. The School Board's position is that carpooling is not a viable transportation option for the charter school. At Renaissance Charter School at Tradition, one parent has decided to run a private busing service, but no other parents have chosen to use the services of that private bus.2/ The Charter Contract and Transportation Policy Do Not Require Petitioners to Transport by Regular School Bus All Students Residing More Than Two Miles From the Charter School The parties' dispute centers on whether the School Board can require Renaissance Charter School at Tradition to offer regular school bus transportation, to and from the school, for all students residing more than two miles from the school. The interests of Petitioners are directly and substantially affected by the School Board's attempt to require that Petitioners transport by regular school bus all students residing more than two miles from the charter school. The parties unsuccessfully mediated their dispute before the Florida Department of Education. The persuasive and credible evidence adduced at hearing demonstrates that Renaissance Charter School at Tradition has not breached its charter contract with the School Board by not providing regular school busing to all students residing more than two miles from the charter school. The charter school contract between the School Board and Renaissance Charter School at Tradition does not require Renaissance Charter School at Tradition to provide regular school busing to all students residing more than two miles from the charter school.3/ Renaissance Charter School at Tradition's transportation policy is consistent with its charter contract with the School Board. The School Board's Inequitable Treatment of Charter Schools The persuasive and credible evidence adduced at hearing demonstrates that the School Board's treatment of Petitioners is inequitable. The School Board has a "no transportation zone," which geographically encompasses approximately one-third of the county. Students of traditional public schools residing in the "no transportation zone" are not provided regular school bus transportation to and from school. The School Board also has a "limited transportation zone." Students of traditional public schools residing in the "limited transportation zone" are provided regular school bus transportation, but only if they attend a school located within the "limited transportation zone." The "no transportation zone" and "limited transportation zone" encompass approximately one-half of St. Lucie County. At the hearing, the School Board conceded that it has different policies for the transportation of traditional public school students and students at magnet schools and attractor schools. The School Board encourages the use of carpools for students of traditional public schools. The School Board's Alleged Unadopted Policy The School Board, in paragraph 20 of its counter- petition filed in Case No. 14-3267, specifically states: "The School District's adopted policy is that students who live more than two miles from their assigned school shall be provided school bus transportation." (emphasis added). The persuasive and credible evidence adduced at hearing demonstrates that the School Board interprets Florida law and its adopted School Board Policies 3.90 and 8.31 to require that all existing and future charter schools within the county provide regular school bus transportation for all students residing more than two miles from the charter school. The persuasive and credible evidence adduced at hearing demonstrates that the School Board does not have an unadopted policy that all charter schools within the county must provide regular school busing to all students residing more than two miles from their charter school. The School Board's Adopted Policies The School Board has two adopted policies, School Board Policy 3.90 (dealing with charter schools) and School Board Policy 8.31 (dealing with student transportation). The interests of Petitioner are directly and substantially affected by these policies.4/ Both School Board Policies 3.90 and 8.31 were properly noticed pursuant to chapter 120, Florida Statutes. Neither School Board Policy 3.90 nor 8.31 is specifically incorporated into the charter agreement between the School Board and Renaissance Charter School at Tradition. Moreover, according to the School Board, School Board Policy 8.31 applies only in the absence of a viable charter school transportation policy. The persuasive and credible evidence adduced at hearing fails to demonstrate that the School Board and Renaissance Charter School at Tradition mutually agreed that School Board Policy 3.90, or 8.31, apply to the charter school.
The Issue Whether the School Board lacked the delegated legislative authority to promulgate School Board Policy 2.57. Whether the challenged portions of School Board Policy 2.57 violate certain provisions of the charter school statute, section 1002.33, Florida Statutes, and State Board Rules, as outlined in Petitioner's Amended Rule Challenge Petitions. Whether the Innovative Rubric Policy 2.57 should be invalidated for enlarging, modifying, and/or contravening the charter statute and also the adopted State Board Education rule(s) and form(s). Whether the budget worksheet referenced in School Board Policy 2.57 is an unadopted rule because it was not attached or incorporated into School Board Policy 2.57 and/or was never specifically adopted by rule. Whether certain provisions of School Board Policy 2.57 violate section 1002.33(6)(h) as outlined in Petitioner's Amended Rule Challenge and Charter Petitions. Whether the prevailing party is entitled to attorneys' fees and costs pursuant to section 1002.33(6)(h) and/or section 120.595, Florida Statutes.
Findings Of Fact Renaissance is a not-for-profit Florida corporation. Renaissance currently operates six charter schools in the School District of Palm Beach County ("School District") pursuant to charters issued by the School Board: (1) Renaissance Charter School at Central Palm; (2) Renaissance Charter School at Cypress; (3) Renaissance Charter School at Palms West; (4) Renaissance Charter School at Summit; (5) Renaissance Charter School at Wellington; and (6) Renaissance Charter School at West Palm Beach. The School Board is the "sponsor" of the six schools operated by Renaissance in the School District for purposes of section 1002.33. The six schools operated by Renaissance are public schools, by virtue of their status as charter schools, under section 1002.33(1). Charter Schools USA serves as the education services provider or management company for all six of Renaissance's schools in the School District. On April 1, 2015, the School Board held a public workshop on the subject of charter schools, including proposed revisions to School Board Policy 2.57 ("Policy 2.57") entitled "Charter Schools." After the workshop, the School Board reviewed proposed revisions to the rule, Policy 2.57, at a noticed public meeting on April 22, 2015, and approved development of the policy. On May 27, 2015, at a noticed public meeting, the School Board approved adoption of revised Policy 2.57. The May 27, 2015, amendments to Policy 2.57 required, among other things, that charter schools meet a standard beyond the status quo for "innovative learning methods," mandated that every charter contract contain a provision requiring 51 percent of the charter school governing board members to reside within Palm Beach County, and mandated that every charter contract contain a provision precluding new charter schools from being located in the vicinity of a district-operated school that has the same grade levels and programs. The May 27, 2015, amendments to Policy 2.57 also included an attached Innovative Policy Rubric 2.57, which contained the innovative definition and additional standards of innovation which charter school applicants must satisfy. The May 27, 2015, amendments to Policy 2.57 also required a completed budget worksheet in the format prescribed by the School Board from each charter school applicant. The "budget worksheet" referenced in Policy 2.57 is the "Budget Template Tool" developed by the Florida Charter Support Unit. The "budget worksheet" referenced in Policy 2.57 was not specifically identified in Policy 2.57 or attached thereto when it was adopted. The School District requires use of the Budget Template Tool in order to provide charter school applicants notice about everything that is required to prepare a budget and to ensure that the budget includes all necessary information. Charter school applicants who do not use the Budget Template Tool often fail to provide all of the information required to be included in the budget. The School District will review an applicant's budget even if it is not submitted using the Budget Template Tool. Failure to use the Budget Template Tool, in and of itself, will not be a factor in the rating of the "Budget" section of an application or the overall recommendation on an application. On August 3, 2015, Renaissance submitted its application for Renaissance Charter High School of Palm Beach to the District's Charter Schools Department. The application for Renaissance Charter High School of Palm Beach is the only charter application Renaissance has filed in the School District since the revised Policy 2.57 was adopted on May 27, 2015. On or around August 18, 2015, Renaissance requested that the Florida Department of Education ("FDOE") mediate its dispute over the amendments to Policy 2.57. The School Board declined FDOE's request to mediate the dispute. On September 8, 2015, Commissioner of Education Pam Stewart issued a letter to both Renaissance and the School Board confirming that the dispute could not be settled through mediation and providing Renaissance with permission to bring its dispute to DOAH. The District Superintendent recommended that the application for Renaissance Charter High School of Palm Beach be denied and placed it on the consent agenda for the School Board's November 4, 2015, public meeting, with one of the reasons being that the application "failed to meet indicators of School Board Policy 2.57 innovative rubric." At the November 4, 2015, meeting, after deliberation, the School Board voted to deny the application. In its letter dated November 13, 2015, denying the charter application of the proposed Renaissance Charter High School of Palm Beach, the School Board relied, in part, on Policy 2.57 as grounds for denial. On September 7, 2016, Petitioner filed a consolidated challenge that was amended on December 20, 2016. Petitioner is challenging the School Board's adoption and amendments of May 27, 2015, to Policy 2.57 in the Rule Challenge and asserting a violation of the flexibility granted to charter schools for the amended provisions in the Charter Petition.
The Issue The issue is whether Petitioner is entitled to receive an allocation of affordable housing funds from the Florida Housing Finance Corporation as a result of the alleged improper scoring of another applicant's application during the 2001 funding cycle.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida limited partnership that is engaged in the business of developing affordable housing projects. FHFC is a statutorily-created public corporation. It is the State's designated "housing credit agency," and it is responsible for the allocation of tax credits and the distribution of other funds for the development of affordable housing projects. FHFC is administratively housed in the Department of Community Affairs (DCA), and it is governed by a nine-member board. Eight members of the board are appointed by the Governor; the ninth member of the board is the Secretary of DCA, who serves in an ex officio capacity. FHFC Programs The programs administered by FHFC include the State Apartment Incentive Loan (SAIL) Program and the Low-Income Housing Tax Credits Program (Housing Credits Program). The funds from the SAIL Program are used to provide low-interest loans to developers. The funds come from various sources of state revenue, and the loans are typically secured by a second mortgage on the property on which the affordable housing project is developed. The Housing Credits Program is governed by federal law, namely Section 42 of the Internal Revenue Code. The program provides dollar-for-dollar federal tax credits to developers that can be used over a 10-year period so long as the related affordable housing project satisfies the requirements of the Internal Revenue Code throughout that period. The tax credits can be, and often are sold or "syndicated" by the developer in order to generate the funds necessary to construct the project. Each state receives an annual allotment of tax credits from the federal government to be used in its Housing Credits Program. For 2001, Florida's allocation of tax credits was approximately $23.9 million, of which approximately $20.7 million was available for allocation. FHFC received requests totaling approximately $81.3 million in the 2001 funding cycle for the available $20.7 million in tax credits Some of the available tax credits are apportioned by FHFC into a "set-aside" for projects in small counties. Only projects located in small counties compete for the tax credits in the small county set-aside. For 2001, the small county set-aside was $1,739,586.90, and FHFC received requests for those funds totaling approximately $5.5 million. FHFC Evaluation Process Because the funds requested from the SAIL Program and the Housing Credits Program typically exceed the available funds (as was the case in 2001), FHFC has established a competitive application process through which the applications are evaluated, scored, and ranked. The applications are first reviewed for all of the "threshold" items identified in the application forms and FHFC’s rules. If an application does not have all of the threshold items, it is rejected. By contrast, the failure to include non- threshold items or the failure to provide complete, consistent, and accurate information in the format and location prescribed in the application forms results in the application not receiving the full amount of points available or the imposition of a penalty that reduces the overall score given to the application. Next, FHFC staff reviews all of the applications that were not rejected for omitting a threshold item. That review results in a “preliminary score” for each application, which is provided to all of the applicants. Then, there is a 10-day period in which applicants may challenge FHFC's preliminary scoring of their application or the preliminary scoring of any other applicant's application. Such a challenge is called a Notice of Possible Scoring Error (NOPSE). FHFC provides each applicant the NOPSEs relating to its application as well as a statement of FHFC's position on the NOPSE. The applicants are then given a period of time -- referred to as the "cure period" -- to submit additional documentation, revised forms or other information they deem appropriate to address the issues raised in the NOPSEs, FHFC's comments on the NOPSEs, and/or FHFC's preliminary scoring of the application. The additional submittals are referred to as "cures." After the cures are submitted, the applicants again have an opportunity to bring deficiencies in competing applications to FHFC's attention. The mechanism for doing so is a Notice of Alleged Deficiency (NOAD). After reviewing the cures and any NOADs, FHFC staff prepares a revised score for each application. This score is referred to as the “pre-appeal score.” Along with the pre-appeal scores, each applicant is given notice of its right to challenge its score through a formal administrative proceeding at the Division or through an informal proceeding before a hearing officer appointed by FHFC. Most applicants opt for an informal hearing because, as a result of the time constraints imposed by the funding cycle, those who opt for a formal hearing will not be funded until a subsequent cycle if they prevail at the hearing. After all of the informal hearings are completed and any scoring adjustments are made based upon the results of those hearings, the applications are ranked based upon their “post- appeal scores.” The post-appeal scores and rankings are approved by the FHFC board and are used to award the available funds. The standards and procedures for ranking applications for tax credits are set forth in the Qualified Allocation Plan (QAP). The QAP is required by the Internal Revenue Code and it is adopted and incorporated by reference in FHFC's rules. Among other things, the QAP establishes the priority of applications which receive the same scores. That priority is established through two "tie-breakers." The first tie-breaker is whether the application is in Group A or Group B, and the second tie-breaker is a random lottery number assigned to the application prior to the final rankings. The group into which the application falls is determined based upon the Corporation Funding per Set-aside Unit (CFSU) amount identified on Form 10 of the application. Group A includes the 65 percent of the applications that have the lowest CFSU amounts. Applications in Group A receive priority over applications in Group B in the event that the applications receive the same final score. For applications in the same group with the same score, priority is given to the application with the lower lottery number. 2001 Combined Cycle Generally The 2001 funding cycle was referred to as a "combined cycle" because it combined the SAIL Program, the Housing Credits Program, and another program not implicated in this case called the Home Investment Partnership Program (HOME Program), into a single application and review process. The application package for the 2001 Combined Cycle included 23 numbered forms, not all of which were applicable to every applicant. The applications submitted in the 2001 Combined Cycle, including those submitted by Petitioner and TWC, were reviewed and scored in accordance with the procedures described above. Relevant Forms Form 1 of the application is entitled "Applicant and Development Data." Page 10 of Form 1 includes the following statements: The Applicant and all Financial Beneficiaries understand and agree that full points will be awarded only in the event that all information required by each form is provided in accordance with the Application requirements. Failure to provide complete, consistent and accurate information in the format and location prescribed by the Application will result in a REDUCTION OF POINTS OR REJECTION OF THE APPLICATION as indicated on each form. Only information contained within the Application will be considered for purposes of points awarded or appealed. . . . . Form 5 of the application is entitled "Local Government Contributions." Page 1 of Form 5 states that: Each applicable verification form must have an Original signature by one of the designated signatories indicated on the appropriate verification form. Zero points will be awarded if Applicant uses the incorrect form or if the form is not signed by one of the designated signatories. Separate verification forms are included in Form 5 for the different types of local government contributions. There are separate verification forms for grants (Form 5, page 6), fee waivers (Form 5, page 7), loans (Form 5, page 8), tax exempt bond financing (Form 5, page 9), “other contributions” (Form 5, page 10), and exemptions from ad valorem taxation (Form 5, page 11). The verification form for fee waivers states that “[n]o credit will be given for fee waivers unless the computations by which the total amount of each waiver is determined accompanies this verification form in the Application.” That same language is not included on the verification form for "other contributions”; however, that verification form includes a sentence stating that “[t]he amount of this contribution was calculated as shown behind the tab labeled ‘Form 5, Exhibit .’” The verification form for “other contributions” also includes the following statement: THIS FORM MUST BE SIGNED BY THE MAYOR, CITY MANAGER, COUNTY MANAGER/ADMINISTRATOR, CHAIRPERSON OF THE CITY COUNCIL/COMMISSION OR CHAIRPERSON OF THE BOARD OF COUNTY COMMISSIONERS. . . . . OTHER SIGNATORIES ARE NOT ACCEPTABLE. THE APPLICANT WILL NOT RECEIVE CREDIT FOR THIS CONTRIBUTION IF THE VERIFICATION FORM IS IMPROPERLY SIGNED AND/OR DOES NOT HAVE AN ORIGINAL SIGNATURE IN THE ORIGINAL APPLICATION. Form 6 of the application is entitled "Local Government Planning Efforts." Pages 2 and 3 of Form 6 are the verification forms for any affordable housing incentives being offered for the project by the applicable local government. Both pages include the following statement: This form must be signed by the MAYOR, CITY MANAGER, COUNTY MANAGER/ADMINISTRATOR, OR CHAIRPERSON of the CITY COUNCIL/COMMISSION OR CHAIRPERSON of the BOARD OF COUNTY COMMISSIONERS. OTHER SIGNATORIES ARE UNACCEPTABLE. ZERO POINTS WILL BE AWARDED. . . . . The application and all of these forms are adopted and incorporated by reference in FHFC's rules. Applications Submitted by Petitioner and TWC Petitioner submitted an application for an allocation of $561,000 in tax credits and for an award of funding under the SAIL Program for its proposed Ochlocknee Pointe development in Gadsden County. Petitioner's application was designated by FHFC as No. 01-131CS. A competing application for $890,000 in tax credits was filed by TWC for its proposed Windsong II development in Columbia County. TWC's application did not seek funding under the SAIL Program. TWC’s application was designated by FHFC as No. 01-125C. Neither Petitioner nor TWC applied for funds under the HOME Program. Because of their locations, the applications submitted by Petitioner and TWC were competing for the tax credits available in the small county set-aside. There were also seven other applicants competing for the tax credits in the small county set-aside. Alleged Deficiencies in TWC's Application and Initial Scoring by FHFC Staff Form 5 of TWC's original application indicated that the project had not received any local government contributions. As a result, the original application did not include any executed local government contribution verification forms. Form 6 of TWC's original application did not identify any affordable housing incentives being offered by the local governments. As a result, the original application did not include any executed verifications forms for such incentives. As part of its cure submittals, TWC submitted a revised Form 5 and a revised Form 6. The revisions were made because TWC had received verification of local government contributions and affordable housing incentives. The revisions included executed verification forms for Form 5 (page 10)1 and for Form 6 (pages 2 and 3). The verification forms at issue in this proceeding were executed by Dale Williams; the title listed for Mr. Williams was County Coordinator. A letter signed by Mr. Williams was included along with the “other contributions” verification form (Form 5, page 10). The letter was on the letterhead of the Board of County Commissioners of Columbia County and includes the words "County Coordinator" under Mr. Williams name and signature. The letter was designated as and included in the cure submittal behind a tab marked "Form 5, Exhibit A." The letter states that "Columbia County will provide the installation of roadway turn lanes at Branford Highway to service Windsong II Apartments for a contribution equivalent to a total value of $102,000." The letter does not include any calculations showing how the “total value of $102,000” was computed, and no such calculation was included elsewhere in TWC's cure submittals. There is nothing in TWC’s cure submittals that explained the nature of the County Coordinator position or stated that Columbia County does not have a County Manager/Administrator designated as such. TWC was not awarded four points on Form 6 because County Coordinator was not specifically listed along with “City Manager, County Manager/Administrator, or Chairperson of the City Council/Commission or Chairperson of the Board of County Commissioners” as an authorized signatory for that form. For that same reason, TWC also was not awarded any points on Form 5 for the $102,000 local government contribution referred to in Mr. Williams' letter. That contribution was worth 7.64 points. TWC was also penalized 1.5 points on Form 5 because no documentation was provided showing how the "total value of $102,000" was calculated for the local government contribution described in Mr. Williams' letter. These scoring determinations were made by Debra King, the FHFC staff person who reviewed TWC’s application and cure submittals, and they were concurred in by Ms. King’s “scoring partner.” Scoring Appeals by Petitioner and TWC FHFC completed the scoring process for the 2001 Combined Cycle on August 1, 2001, when it advised the applicants of their pre-appeal scores. TWC's pre-appeal score was 608.86, which included the penalty and point reductions described above. Petitioner's pre-appeal score was 620.5, which included a 1.5 point penalty for Petitioner’s failure to specify a unit of measurement on Form 7. TWC and Petitioner both requested informal hearings to challenge their pre-appeal scores. Those hearings, which are commonly referred to as “scoring appeals,” were conducted by hearing officers appointed by FHFC. At the informal hearing on TWC’s scoring appeal, FHFC conceded that Mr. Williams was an authorized signatory for Forms 5 and 6 because, as the "County Coordinator," Mr. Williams was the de facto County Manager/Administrator for Columbia County. FHFC also conceded that documentation relating to the computation of the $102,000 in roadway improvement being contributed by Columbia County was not necessary because it was a lump-sum contribution. FHFC agreed to re-score TWC's application in light of those concessions. The concession that Mr. Williams was an authorized signatory was based upon FHFC staff's review of the job description for the County Coordinator position and the organizational chart for Columbia County attached to TWC's Petition for Informal Administrative Hearing as well as phone calls that FHFC staff made to Columbia County after receiving that information to confirm that the county did not have a County Manager/Administrator designated as such. The concession that a document showing how the local government contribution was calculated was based upon FHFC staff’s review of excerpts from prior applications that were attached to TWC’s Petition for Informal Administrative Hearing. Those applications apparently received full points for their “other contributions” even though they did not include detailed calculations for the contributions; however, almost all of the excerpts showed at least a general breakdown of the items which made up the total shown on the verification form. As a result of FHFC's concessions, the hearing officer concluded that the TWC’s scoring appeal was "moot" and she issued a Recommended Order which contained no findings of fact or conclusions of law. The hearing officer's Recommended Order, which FHFC adopted in toto as its Final Order, recommended that TWC's application "be rescored to reflect the removal of the 1.5-point penalty to Form 5; to add 7.64 points to Form 5; and to add 4 points to Form 6." The net effect of that rescoring was that TWC's application received a post-appeal score of 622. Petitioner did not fare as well in its scoring appeal. The hearing officer made the following findings of fact with respect to the 1.5-point penalty assessed based upon Petitioner's failure to specify the unit of measure on Form 7: Form 7, Page 11, is entitled "Local Government Verification that Development is Consistent with Zoning and Land Use Regulation." On Page 11 of Form 7, there is a requirement to state the "Size of Parcel (acreage, number of lots, or square footage)." In its Revised Page 11 of Form 7 [Petitioner], in response to that requirement entered the numbers "9.99" without any accompanying unit of measure. It is clear from a review of other pertinent parts of the application that the appropriate unit of measure to accompany the number "9.99" is "acres." Further, its [sic] reasonable to conclude on the face of [Petitioner's] Revised Page 11 of Form 7, when read in conjunction with the entire application . . . , that the number "9.99" refers to acres. (Citations omitted). Despite those findings, the hearing officer recommended that the 1.5-point penalty be affirmed. That recommendation was based primarily on the following conclusion of law: The instructions on Page 11 of Form 7 require a unit of measure be appended to the number of units placed in the answer blank. While it may be true that such a result is particularly frustrating to the applicant in light of the reality that its omission has created no confusion or inconsistency nor diminished the accuracy of the application, [FHFC] has nevertheless adopted rules requiring strict compliance with regard to providing complete information in the format and location prescribed by the instructions on the forms. That rule cannot be ignored. Thus, the failure of [Petitioner] to include a unit of measure on its Revised Page 11 of Form 7 is an error that does result in a single 1.5-point penalty. FHFC adopted the hearing officer's findings of fact, conclusions of law, and recommendation in toto as its Final Order, and Petitioner did not seek judicial review of the Final Order. As a result, Petitioner's pre-appeal score of 620.5 became its post-appeal score. Petitioner's application was in Group B, and its lottery number was 68. TWC's application was in Group A, and its lottery number was 27. Thus, in the event that Petitioner and TWC received the same final score, priority for funding would be given to TWC. If Petitioner's application had received a higher score than TWC's application, then Petitioner's application would have been in the "funding range" and Petitioner would have received an allocation of tax credits for its project. If Petitioner had received the tax credits, it would have also received SAIL funding. The record does not reflect the total amount of tax credits and SAIL funding that Petitioner would have received; however, if TWC's application was moved below Petitioner's application on the final funding list (Exhibit R2), then $339,164.90 in tax credits would have been available to Petitioner after the higher-ranked applicants were fully funded.2 Additional Facts Established at the De Novo Final Hearing in this Case The $102,000 “total value” for the roadway improvements referred to in Mr. Williams' letter is reasonable. Indeed, the itemized cost-estimate prepared by professional engineer Greg Bailey in the design phase for the improvements was $106,064. The $102,000 in roadway improvements cannot be characterized as a lump-sum contribution. As Mr. Bailey’s cost- estimate shows, the improvements include 16 components such as paving, grading, and drainage; and a cost-per-unit and an estimated quantity is listed for each component. At the time Mr. Bailey prepared the cost-estimate, he was working for C&W Land Trust. Accordingly to one of the documents in TWC’s application (Form 7, Exhibit A), C&W Land Trust was the landowner from whom TWC acquired the property where its Windsong II project will be located. Mr. Bailey provided the cost-estimate to the county engineer for Columbia County for his use in evaluating bids submitted for the construction of the roadway improvements. The county engineer forwarded a memo to Mr. Williams on June 14, 2001, stating that the construction cost for the improvements “is estimated to be $102,000.00.” Requiring documentation to support the calculation of a local government contribution is important because it helps prevent an applicant from “gaming” the system in order gain an advantage in the scoring of its application. For example, where the contribution is based upon a per-unit amount, the calculations help to ensure that the number of units committed by the applicant as a basis for the local government contribution is the same number of units committed by the applicant in the application to FHFC. Documentation showing the calculation of the $102,000 local government contribution referenced in Mr. Williams letter is equally important because without such documentation there was no way for FHFC to determine during its review whether that figure is a reasonable estimate of the cost of the roadway improvements which are being contributed by Columbia County. It is necessary for FHFC to be able to make such a determination because the points awarded to the applicant for the contribution are based in large part on the amount of the contribution. At the time that TWC submitted the verification forms and letter signed by Mr. Williams, Columbia County did not have a position called County Manager or County Administrator. The County Coordinator position was the de facto County Manager/Administrator. The County Coordinator was appointed by the Board of County Commissioners to "administer all programs and to ensure that County government operates efficiently and effectively." The County Coordinator reported directly to the Board of County Commissioners and, among other duties, the position supervised all department heads (except the head of Public Works Department) and provided "direction, leadership and supervision to all County Department heads." Presently, Columbia County has a County Manager and Mr. Williams serves in that position. The job duties for the County Manager position are virtually identical to those of the County Coordinator position. Indeed, even though text of the position description no longer excepts the Public Works Department from Mr. William’s supervision, the county’s organizational chart still shows the Public Works Department outside of Mr. Williams chain of command.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Housing Finance Corporation issue a final order which determines that Petitioner is entitled to an allocation/award of tax credits and SAIL funds in the next available cycle. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2004.
The Issue The issues are whether Respondent threw a chair at one student, missed him, but hit a desk that impacted and injured another student; if so, whether such conduct constitutes a violation of section 1012.27(5), Florida Statutes (2018), or any of the various School Board Policies (Policies) or Department of Education rules (Rules) discussed below; and, if so, whether Petitioner's termination of Respondent is consistent with the provision of progressive discipline set forth in the Collective Bargaining Agreement for the period, July 1, 2017, through June 30, 2020 (CBA).
Findings Of Fact Respondent is a 61-year-old teacher holding educator certificates in middle school mathematics and business education. Petitioner has employed Respondent as a classroom teacher since 2005. Respondent has no prior discipline. Since 2012, Respondent has taught at Turning Point Academy, which is an alternative school operated by Petitioner. The students at Turning Point Academy have been expelled from, or repeatedly disciplined at, other schools and range in age from 14 to 17 years old. In December 2018, 90 to 95 students were enrolled in the school, but absences, usually unexcused, averaged about 40% each day. The school building is organized with several classrooms opening onto a common area, where a behavior intervention associate (BIA) sits at a desk, ready to help a teacher in an adjoining classroom control disruptive student behavior. In each common area are restrooms and an eating area. The BIA serving Respondent's common area on the date in question had ten years' experience as a BIA and 22 years' prior experience as a sheriff's deputy. Respondent has been fully trained in appropriate interactions with students and classroom management. Respondent's evaluations for 2016-18 were all "Effective"; her evaluation for 2019 was "Highly Effective." However, the assistant principal of the school was dissatisfied with Respondent's classroom management skills. In response to what he viewed to be an excessive number of office referrals, the assistant principal had recently directed Respondent to take care of the behavior problems herself and had assigned her to take a two-part program on classroom management. The assistant principal also directed Respondent to use the school's system of assigning tally marks for good and bad behavior. Absent seriously inappropriate behavior, the tally system requires three bad tally marks before the teacher could refer a student to the BIA, who then could decide whether to refer the student to the office. The record is silent as to the effectiveness of the tally system in shaping student behavior in general, but it is unlikely that the two student disrupters at the center of the incident on December 20, 2018, were deterred by the prospect of a few (more) bad tally marks. During the 2018-19 school year, Respondent taught math to students in sixth through eighth grades. The class at issue was a 100-minute, eighth-grade math class that took place late on the day of December 20, 2018, just before winter break. Midway through the class, which was attended by six students on that day, three students began acting up. Respondent promptly intervened, and one of the students returned to his work. However, the other students left their assigned seats without permission. One student ran toward the back of the classroom, and the other student ran toward the front of the classroom, where Respondent was situated at her desk in the corner opposite from the corner at which the door to the common area was located. The students were yelling profanities and tossing paper in the air--some of both of which were directed at Respondent. One or both of the students demanded to know where Respondent lived and what kind of car she drove in a clear attempt to intimidate her. The student running toward Respondent invaded Respondent's space, as he ran behind her desk in the narrow space between her desk and the whiteboard, where he seized a marker, taunted Respondent that he had the marker, and wrote the word, "fuck," on the whiteboard. The class was equipped with a buzzer to summon the BIA, but the buzzer was located by the classroom door on the opposite side of the room from Respondent's desk. It is unclear if it occurred to Respondent to tell another student to hit the buzzer, but she never did so and had never previously done so. Instead, Respondent leaned over the depth of her desk-- about three feet--and grasped a lightweight chair with a plastic back and seat and metal legs. She shoved or pushed the chair briskly across the tile floor in the direction of the student who had rushed her desk, even though he was now careening toward the classroom door along the front of the classroom in the space between the whiteboard and the first row of desks. The chair missed the fleeing student, but struck the wall under the whiteboard with sufficient force that it ricocheted into the desk of a student who was seated, watching this incident unfold. The chair caused the desk to topple onto the right knee of the student. In his deposition, the injured student testified that, in addition to the ice applied to the knee immediately after the incident, the only treatment that his knee required was a couple of weeks' rest. The next day, the injured student was back at school walking without favoring the injured knee. The assistant principal directed Respondent to telephone the injured student's parent and inform her what had happened, suggesting that the assistant principal considered the injury minor--or else, from a liability perspective, he would have made the call himself, rather than assign the responsibility for making the call to the staffperson who had caused the injury. Respondent made the assigned call to the injured student's parents--and, on her own, several others during the winter break to check on the child whom she had accidentally injured with the shoved chair. In her initial statement, Respondent stated that she had thrown the chair, rather than shoved it along the floor. The injured student testified that Respondent threw the chair above the height of the desks, but desks did not occupy the space between her and the fleeing student, so, at minimum, elevation was unneeded to hit the student with the chair. Other student testimony indicated that the chair did not rise above the tops of the desks. More importantly, Respondent remained behind her desk, and the chair was in front of the desk. If Respondent could gain the leverage to lean across the desk and grasp the chair, she would lack the leverage to throw it with any force at all. The proof establishes no more than that Respondent leaned across her desk and gave the chair a hard shove across the front of the classroom in the direction of the fleeing student. It is difficult to understand why Respondent would state that she had thrown the chair, if she had not thrown the chair in the common sense of the word, "throw," which is "to propel through the air by a forward motion of the hand and arm."1 Clearly, when she gave the statement to the school police investigator shortly after the incident, Respondent remained overwhelmed 1 Merriam-Webster online dictionary, https://www.merriam-webster.com/dictionary/throw. by what had happened to her in her classroom. Also, as demonstrated at the hearing, Respondent's language skills are not so highly developed that she would invariably differentiate between throwing a chair in the air and shoving a chair along a floor. Two key witnesses establish Respondent's condition during and immediately after the incident. According to the BIA, who saw Respondent a few seconds after the incident ended, Respondent was not angry, but was visibly shaken up and upset. She told the BIA that she had been afraid when the student charged her. The injured student testified similarly that Respondent's reaction was fear, not anger. Interestingly, the injured student admitted that he too would have experienced fear, even though the charging student was a classmate. Immediately after testifying to this fact, the injured student added that he had overheard the two disruptive students at lunch discussing school shootings--a highly sensitive issue in schools today and even more so in December 2018, only a few months after the Parkland shootings. Respondent claims that she acted in self-defense. There are two problems with this claim. First, objectively, Respondent did not act in self- defense, because, by the time that she shoved the chair, the student was running away from her, and she was out of immediate peril. On the other hand, the charging student had momentarily terrified Respondent, and it is not inconceivable that, in her fearful or panicked state, she formed a plan of action that, by the time she executed it, was a fraction of a second after the rushing student had turned to run across the front of the classroom. The second problem is the belated emergence of Respondent's claim of self-defense, months after the incident took place, but there are a couple of explanations. As noted above, Respondent's claim of self-defense is a little bit of a mislabeling. Perhaps the two students' outrageous behavior caused Respondent to feel that she needed to defend herself; without doubt, this behavior caused Respondent to react in fear and even panic. Perhaps Respondent did not find even the self-defense label for her claim until represented by counsel. Clearly, Respondent omitted numerous important details concerning the behavior of the two disruptive students in her initial statement--again, not surprisingly, as she was still overwhelmed by what had happened to her and that she had accidentally injured an innocent student--in fear, not in anger. Interestingly, when Respondent finally presented the additional details, the assistant principal rejected them as Respondent's "changing her story." This dismissal betrays Petitioner's misconception of the case, whose center is not the changed fact of the specific action that Respondent applied to the chair, but to her state of mind when she applied the action to the chair. Regardless of whether she had thrown the chair high in the air or shoved it along the floor, Respondent had been driven by the two disruptive students to a state of utter fear and likely panic. To the assistant principal and Petitioner generally, a second changing fact may have been that she acted in fear, not anger, but no competent evidence ever supported characterizing her state of mind as angry. Despite the myriad conferences, emails, and witness statements filling Petitioner's file, there is no thoughtful analysis of what motivated, or drove, Respondent to apply force to the chair in the direction of the fleeing student. To the contrary, Petitioner has ignored strong evidence on this crucial issue from two witnesses--one of whom is disinterested and exceptionally experienced and competent at reading demeanors, collecting evidence, and analyzing evidence. And this evidence clearly establishes the reaction of an older woman in a state of fear or panic, not anger. Nor did student testimony, besides from the injured student, support Petitioner's theory of the case. The deposition testimony of these students was of little value because it was vague or guarded. During a particularly unproductive deposition of one of the disruptive students, likely the one who rushed Respondent,2 the following exchanges occurred: Q: Okay, Mr. O, I want to make something very clear that we're not here today because of anything that you did. You're not in trouble or you're not here because you did something wrong. A: Uh-huh. Q: Okay. We just are trying to get some information and to see if you have any recollection of some events that occurred-- A. All right. Q: last school year in December. Do you recall giving a statement to school police about a situation that happened in Ms. Larson's class, a chair that was thrown? A: (Shakes head) Q: You don't? Say yes or no. A: No, ma'am. Q: All right. One moment please. Do you recall giving a statement to school police that you were getting papers off Ms. Larson's desk when a chair was thrown at another student? A: No. Who this go to? Q. Pardon me? A. Who this go to? Q. What is your question? A. Who do all this go to? 2 It is hard to identify individual students due to the redactions and absence even of students' initials in the Petitioner's investigative paperwork. Q. It's going before a judge in a case, a different case. A. I'm saying, so why do I got something to do with this? Q. Because you gave a statement to the school police. You were in class the day that Ms. Larson threw a chair and hit a student in his knee. A. I gave a statement? * * * [After the student refused to waive reading and signing]: Q. Okay. So we will have [the transcript] sent to Ms. Richardson. A. So this something that I got to go to court for? Q. Well, probably not. We might use your deposition instead of … . Remember, this has nothing to do with you. A. I thought-- Q. This is all about Ms. Larson. A. A deposition like when you get send sent to a program. Deposition of G.O., pp. 10-11 and 16-17. At bottom, Respondent found herself in a very bad situation not at all of her making. In a blatant attempt to reduce the classroom to utter chaos, rather than to cause a mere disruption, two students unfortunately seem to have succeeded in momentarily terrorizing a teacher into incoherence. Neither the school police officer nor any of Petitioner's supervisory employees saw the need to contact outside law enforcement. A document mentions a child protective investigator by name, but the record does not suggest that she pursued an investigation. The prevailing thinking among Petitioner's representatives seems to have been that Respondent was neither negligent nor reckless and that she did not intend to hurt the injured student, whose parents did not wish to pursue the matter due to the negligible injury. Understandably, no one seems to have analyzed the situation from the perspective of the actual target of the chair--the fleeing student--as such an exercise would have uneasily cast the real perpetrator as the victim. But such an exercise might have led Petitioner at least provisionally to set aside its fixation with the "fact" that Respondent had thrown the chair high in the air and, more importantly, its assumption that Respondent had acted in anger.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the charges set forth in the Administrative Complaint and reinstating her with full back pay. DONE AND ENTERED this 2nd day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of December, 2020. COPIES FURNISHED: Jean Marie Middleton, Esquire V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 (eServed) Nicholas A. Caggia, Esquire Johnson & Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Donald E. Fennoy II, Ed.D., Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)
The Issue Whether the proposed amendment to Florida Administrative Code Rule 6A-2.0020(4) is an invalid exercise of delegated legislative authority because of conflict with section 1008.34(1)(a), Florida Statutes (2016), or because the rule will be arbitrary and capricious in its application and administration.
Findings Of Fact Petitioner Florida Association of Independent Charter Schools is a Florida non-profit corporation. The association is substantially affected by the proposed amended rule. Petitioner Aspira Raul Arnaldo Martinez Charter School is a charter school in Miami-Dade County and is currently serving 573 students. Its school grades over the past two consecutive years are: “D” for 2014-2015 and “D” for 2015-2016. If the proposed amended rule becomes effective and the school receives a school grade lower than “C” for 2016-2017, the school will not be eligible for the 2017-2018 Capital Outlay Appropriation. The school is substantially affected by the proposed amended rule. Petitioner Miami Community Charter Middle School is a charter middle school in Miami-Dade County currently serving 283 students. It is a Title I school serving 99 percent Free and Reduced Lunch. Its school grades over the past two consecutive years are: “D” for 2014-2015 and “D” for 2015-2016. If the proposed amended rule becomes effective and the school receives a school grade lower than “C” for 2016-2017, the school will not be eligible for the 2017-2018 Capital Outlay Appropriation. The school is substantially affected by the proposed amended rule. Respondent State of Florida Board of Education is “the chief implementing and coordinating body of public education in Florida . . . [with] the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of law conferring duties upon it for the improvement of the state system of K-20 public education . . . .” § 1001.02(1), Fla. Stat. Respondent Florida Department of Education “act[s] as an administrative and supervisory agency under the implementation direction of the State Board of Education.” § 1001.20(1), Fla. Stat. “The Commissioner of Education is the chief educational officer of the state . . . , and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system except for the State University System.” § 1001.10(1), Fla. Stat. Charter school capital outlay funding is the state’s contribution to capital funding for charter schools. A charter school’s governing body may use such funds for the following purposes: purchase of real property, construction of school facilities, purchase or lease of permanent or relocatable school facilities, purchase of vehicles, renovation, repair, maintenance of school facilities, and insurance for school facilities. § 1013.62(3), Fla. Stat. The charter school statute, section 1002.33, Florida Statutes, specifically authorizes the State Board of Education to adopt rules which address charter school eligibility for capital outlay funds. “The Department of Education, after consultation with school districts and charter school directors, shall recommend that the State Board of Education adopt rules to implement specific subsections of this section.” § 1002.33(28), Fla. Stat. One of the specific subsections of section 1002.33 is subsection (19), entitled “CAPITAL OULAY FUNDING.” Subsection (19) provides, in pertinent part: “Charter schools are eligible for capital outlay funds pursuant to s. 1013.62.” Each year, the Commissioner of Education is required to allocate charter school capital outlay funds, if any are appropriated by the Legislature, to eligible charter schools.1/ One of the eligibility criteria, which is at the center of the parties’ dispute, is set forth in section 1013.62(1)(a)3., Florida Statutes: “Have satisfactory student achievement based on state accountability standards applicable to the charter school.” The 2016 Florida Legislature amended section 1013.62, but it did not amend the statute regarding satisfactory student achievement. With regard to satisfactory student achievement, presently effective rule 6A-2.0020 provides: (2) The eligibility requirement for satisfactory student achievement under Section 1013.62, F.S., shall be determined in accordance with the language in the charter contract and the charter school’s current school improvement plan if the school has a current school improvement plan. A charter school receiving an “F” grade designation through the state accountability system, as defined in Section 1008.34, F.S., shall not be eligible for capital outlay funding for the school year immediately following the designation. On February 28, 2017, Respondents published a Notice of Proposed Rule, which proposed to amend rule 6A-2.0020. On March 22, 2017, the State Board of Education approved the proposed amendments to rule 6A-2.0020. As approved, the portion of the proposed rule which addresses satisfactory student achievement provides: (4) Satisfactory student achievement under Section 1013.62(1)(a)3., F.S., shall be determined by the school’s most recent grade designation or school improvement rating from the state accountability system as defined in Sections 1008.34 and 1008.341, F.S. Satisfactory student achievement for a school that does not receive a school grade or a school improvement rating, including a school that has not been in operation for at least one school year, shall be based on the student performance metrics in the charter school’s charter agreement. Allocations shall not be distributed until such time as school grade designations are known. For the 2016-2017 school year, a charter school that receives a grade designation of “F” shall not be eligible for capital outlay funding. Beginning in the 2017-2018 school year, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Beginning in the 2017-2018 school year, a charter school that receives a school improvement rating of “Unsatisfactory” shall not be eligible for capital outlay funding. Proposed amended rule 6A-2.0020(4), if adopted, will provide the standard for what constitutes failure to meet satisfactory student achievement for purposes of receiving capital outlay funding. A school with a grade of “F” or two (2) consecutive grades lower than a “C” will be ineligible for funding. Proposed amended rule 6A-2.0020(4), if adopted, will allow a charter school with a single “D” grade to continue receiving capital outlay funds for the next fiscal year. On April 5, 2017, Respondents published a Notice of Change for a technical change for rule 6A-2.0020, referencing the following rulemaking authority for the rule: sections 1001.02(1), (2)(n); 1002.33(19), (28); 1013.02(2)(a); and 1013.62(5).
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Jimmie Alvin ("Alvin") was a School Security Monitor in the Miami-Dade County School District ("District").1 From 1989 until September 2003, when Petitioner Miami-Dade County School Board ("Board") suspended him without pay, Alvin worked at Miami Beach Senior High School. During the 2001-02 school year, Alvin failed to show up for work without authorization at least twice, and he was tardy some 28 times. Alvin was disciplined for this poor performance at a conference-for-the-record held on April 25, 2002. Alvin's attendance improved thereafter, and during the 2002-03 school year, he was late for work just six times. Other problems arose, however. In September 2002, a female student accused Alvin of having touched her arm inappropriately while, allegedly, simultaneously calling her a "whore" in front of others. Following the student's complaint, the District charged Alvin with violating the School Board Rule against improper employee- student relationships. School detectives investigated the charge and found it "substantiated" on conflicting evidence. At the final hearing in this case, however, Alvin credibly denied the allegations. For its part, the Board offered no persuasive, competent, nonhearsay evidence to prove that Alvin actually committed the acts of which the female student had accused him. Thus, it is determined as a matter of ultimate fact that the evidence fails to establish Alvin's guilt with regard to the charge of engaging in an improper employee- student relationship. On March 3, 2003, Alvin was arrested and charged with possession of cocaine and marijuana with intent to sell. On April 24, 2003, Alvin pleaded "no contest" to the criminal charge and was sentenced to one year's probation. At a conference-for-the-record on May 6, 2003, Alvin was notified that the District would review information concerning his past attendance problems, the alleged improper relationship with a student, and his recent criminal conviction, to determine an appropriate disciplinary response. At its regularly scheduled meeting on September 10, 2003, the Board suspended Alvin without pay pending the termination of his employment for just cause. At all times material, Alvin was a member of United Teachers of Dade ("UTD"), a teachers' union. The conditions of Alvin's employment were governed by a collective bargaining agreement referred to in the record as the "UTD Contract."2 Ultimate Factual Determinations The undersigned is unable to determine whether, as a matter of ultimate fact, Alvin should be fired for reasons stated in the collective bargaining agreement, because the UTD contract is not in the evidentiary record.3 Therefore, it is determined that the Board has failed to carry its burden of proving the alleged grounds for dismissal by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Alvin of all charges brought against him in this proceeding; (b) providing that Alvin be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Alvin back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2004.
