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 in the case is whether the Pinellas County School Board may terminate the employment of Minnie L. Moody as a school bus driver.
Findings Of Fact Since 1996, Petitioner has employed Respondent, initially in the Food Services Department and then as a "Plant Operator." Beginning on January 3, 2001, Respondent began working for Petitioner in the Transportation Department as a school bus driver. Respondent is represented by a collective bargaining unit of the Service Employees International Union (SEIU) with whom Petitioner has entered into an agreement. Petitioner has adopted minimum qualifications an applicant must meet to become employed as a school bus driver. Although the job description has changed over a period of years, at all times material to this case Petitioner's minimum qualifications for employment as a school bus driver required as follows: "graduation from high school, possession of GED, or must obtain a GED within one year of being hired." A "GED" is a "general equivalency diploma" which can be earned by persons completing a prescribed course of study and passing a standard examination. The GED is generally regarded as the equivalent of a high school diploma. At the time Respondent began her employment as a school bus driver, she did not meet the minimum qualifications because she had not graduated from high school, did not possess a GED, and was not within one year of obtaining a GED. Pursuant to the collective bargaining agreement between Petitioner and SEIU, a person not meeting the minimum requirements for employment may work in a position as an "intern" for a period of one year with a salary reduction of ten percent below the applicable minimum. An employee seeking employment as an intern enters into an "internship agreement" with Petitioner. The purpose of the internship mechanism is apparently to permit the employee an opportunity to complete certain job-related requirements within the first year of the employment. In January 2001, Respondent executed a one-year internship agreement with Petitioner. The agreement provided as follows: Internships are limited to one (1) year, however; [sic] in some circumstances, the Director of Personnel Relations, or designee, may grant an extension on a case- by-case basis. In June 2001, Respondent entered into an adult education course to prepare for enrollment in a GED program. Towards the end of 2001, Respondent sought and received an internship extension of three months. Because Respondent was attending educational classes, the request was approved, and Respondent continued bus driving through the end of the 2001-02 school year. In the summer of 2002, Respondent was enrolled in basic adult education classes. In August 2002, Respondent sought an additional internship extension. The request was approved, and Respondent drove a school bus for the 2002-03 school year. In February 2004, Respondent was again enrolled in basic adult education classes, and sought an additional internship extension. The request was again approved, and Respondent drove a school bus for the remainder of the 2003-04 school year. Respondent suffered a family tragedy in April 2004 when her son passed away after a long illness. By letter dated July 30, 2004, Petitioner advised Respondent that her internship would expire on August 21, 2004, and that she needed to complete the GED requirement prior to that date. The letter also provided several options to pursue, including other employment prospects with Petitioner, if the GED was not obtained by the expiration of the agreement. The internship agreement between Petitioner and Respondent expired on August 21, 2004, without Respondent's obtaining the GED. By letter dated September 3, 2004, Petitioner advised Respondent that her employment was suspended for failing to meet the minimum qualifications of the position for which she was employed. Because Respondent's progress toward obtaining the GED has been minimal, Petitioner determined that the internship agreement would not again be extended. Petitioner has no written policy regarding how many times an internship agreement can be extended. The witness testifying at the hearing indicated that in determining whether to grant an internship extension to Respondent, Petitioner considered Respondent's progress towards completion of the academic goals as well as personal factors, including the family illness. Since June 2001, Respondent has worked towards, but has not yet obtained, the GED. In order to obtain a GED a student must complete basic education classes prior to entering into the GED course of study. Respondent has worked to improve her reading ability so as to provide skills sufficient to support entry into the GED program, but her reading skill level has shown no marked improvement, and Respondent has not yet begun the actual GED course of study. There is no evidence that Respondent has not performed her duties as a school bus driver in an acceptable manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a school bus driver. DONE AND ENTERED this 11th day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of March, 2005.
The Issue The issues presented, as framed by the Fifth District’s December 16, 2020, Order are: (1) whether the School Board is entitled to appellate attorney’s fees pursuant to section 1002.33(8)(b), Florida Statutes; and (2) the amount of attorney’s fees to which the School Board is entitled.
Findings Of Fact The Underlying Matter (DOAH Case No. 19-6424) The underlying matter concerned whether Legacy’s school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in the School Board’s November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b). A detailed recounting of the underlying matter can be found in The School Board of Brevard County v. Legacy Academy Charter, Inc., DOAH Case No. 19-6424 (DOAH Aug. 18, 2020), which concluded that the School Board met its burden, by clear and convincing evidence, that it may terminate the Amended Charter. Attorneys’ Fees and Costs for Underlying Matter (DOAH Case No. 20-3911F) On August 28, 2020, the School Board filed a Motion for Attorneys’ Fees, Costs, and Sanctions, which was assigned DOAH Case No. 20-3911F. The undersigned conducted a final hearing in DOAH Case No. 20- 3911F on November 6, 2020. The School Board’s expert on attorneys’ fees at that hearing, Nicholas A. Shannin, Esquire, testified that the hourly rate of $200 for partners and associates at the School Board’s Orlando-based law firm of Garganese, Weiss, D’Agresta & Salzman, P.A. (GWDS), was “incredibly reasonable.” The undersigned held that the $200 hourly rate GWDS charged the School Board for its attorneys was reasonable, and ultimately ordered Legacy, pursuant to section 1002.33(8)(b), to pay the School Board a total of $312,147.80, broken down as follows: (a) $271,162.00 in attorneys’ fees; and (b) $40,985.80 in costs. See The School Bd. of Brevard Cty. v. Legacy Academy Charter, Inc., DOAH Case No 20-3911F (DOAH Dec. 4, 2020). Attorney’s Fees for Appeal (Case No. 5D20-1762) The School Board’s Affidavit of Attorneys’ Fees details the attorney’s fees that the School Board seeks in the appeal, and includes the detailed billing records of GWDS. This affidavit avers that the hourly rate actually billed by counsel was $200 for attorney Erin O’Leary, Esquire, who is Board Certified in Appellate Practice by The Florida Bar, and who handled the appeal. The affidavit further avers that Ms. O’Leary’s total number of hours billed in the appeal was 42.5 hours. Although GWDS attorney Debra Babb-Nutcher, Esquire, participated as counsel in the appeal, including supervising Ms. O’Leary and assisting in case strategy, preparation of documents, and communications with the School Board and opposing counsel, the School Board only seeks to recover the total amount of attorney’s fees charged by Ms. O’Leary. In DOAH Case No. 20-3911F, the undersigned found that the $200 hourly rate GWDS charged the School Board of its attorneys was reasonable, and the undersigned finds that a $200 hourly rate charged by Ms. O’Leary for representing the School Board on appeal is reasonable. The hours expended in this matter are reasonable given the time and labor required, the unique arguments raised by Legacy in attempting to stay the closure of its school, the lack of legal precedent, the multiple factual claims that required rebuttal, the short time frame in which to respond making other work impossible, the significant effort required to defend against the stay, as well as the ultimate success achieved in defeating Legacy’s attempted stay. The School Board has demonstrated that the attorney’s fees sought are reasonable based upon the reasonable rate charged and the reasonable hours expended in the appeal. Legacy has filed nothing to dispute the School Board’s request for appellate attorney’s fees. The Lodestar figure (i.e., the fees charged and hours expended) by Ms. O’Leary in this appeal is $8,500.00 for the work performed between August 19, 2020, through December 3, 2020. The undersigned finds that this Lodestar figure is reasonable in light of the factors enumerated in the Rules of Professional Conduct, found in Rule 4-1.5 of the Rules Regulating The Florida Bar, as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). The undersigned finds that the total fee amount of $8,500.00 for the appeal of the underlying matter, Case No. 5D20-1762, shall be recoverable by the School Board, as prescribed in section 1002.33(8)(b).2
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, 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 11th day of April, 2017.
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 The issue is whether Petitioner, the Manatee County School Board (the "School Board"), may terminate Respondent's employment as a non-instructional employee for "just cause" as defined in Section 6.11 of the School Board's Policies and Procedures Manual, based upon the conduct alleged in the Amended Administrative Complaint filed at the Division of Administrative Hearings on June 9, 2009.
Findings Of Fact Respondent Stephanie Waiters was hired by the School Board as a bus driver on August 6, 1996. In 2005, she was promoted to the position of area coordinator. The five "area coordinators" are first-line supervisors responsible for overseeing the daily operations of the buses within their assigned geographical districts. In December 2008, Terry Palmer was promoted from assistant director to the position of director of transportation. Upon his promotion, he was informed by the School Board that, due to budget constraints, his former position would not be filled, nor would the open position of operations coordinator. On January 23, 2009, Mr. Palmer issued a memorandum to all transportation employees regarding the additional duties that transportation department employees would be required to undertake in response to the budget cuts. Mr. Palmer's memorandum stated that, because he would not have administrative assistance, the area coordinators would report directly to him and would assume certain "additional responsibilities": The expanded role of the Area Coordinators will include: 1. employee evaluations; 2. parent conferences; 3. coaching and assisting employees on their buses; 4. observing bus operations at stops, schools etc. when needed; 5. following through on complaints from schools, parents and/or citizens and coordinating action with others inside and outside the department; 6. counseling employees on performance issues and documenting employee discipline; 7. ensuring all employees assigned to them have all of the training and coaching they need to succeed; 8. initiating, in conjunction with the director, involvement of the Office of Professional Standards on extreme issues of poor performance and/or misconduct. Ms. Waiters was the area coordinator for District 5, which includes Palmetto High School. Bus 537 was assigned to District 5 and ran routes to, among other schools, Palmetto High School. The regular operator of Bus 537 during the 2008-2009 school year was Carol Hindman. Ms. Waiters testified that there had been a lengthy history of student disciplinary problems on Bus 537. On Thursday, February 5, 2009, Ms. Waiters phoned Jose Rodriguez, a substitute bus driver employed by the School Board, and informed him that he would be driving Bus 537 on Monday, February 9, 2009.1 On the morning of Friday, February 6, 2009, Mr. Rodriguez rode Bus 537 with Ms. Hindman driving in order to familiarize himself with the route. Mr. Rodriguez testified that there were no problems on the bus until it reached the stop at 29th Street and 9th Avenue Drive East ("29th and 9th"). The students at this stop were rowdy and disregarded his instructions to put away their cell phones and iPods and to carry their backpacks in front of their bodies. From that stop onward, it became a "party bus," according to Mr. Rodriguez. The students informed Mr. Rodriguez that they run the bus, and that the "racist cracker bitch" Ms. Hindman just drives it. The students claimed to have hurt Ms. Hindman, and threatened to hurt Mr. Rodriguez if he attempted to control their behavior. One student began calling Mr. Rodriguez "Chico." Mr. Rodriguez testified that the situation was even worse on the afternoon route, with noise, screaming, radios playing and general horseplay making the situation dangerous. That night, Mr. Rodriguez phoned Ms. Waiters to tell her the Palmetto High School students on Bus 537 were "off the chain" and he was not sure he could handle the situation. She advised him to drive the bus on Monday and see how it went when he was alone. Ms. Waiters told Mr. Rodriguez to "write referrals" on the students who made trouble and she would back him up in any way necessary. Mr. Palmer explained the disciplinary authority of bus drivers and the related referral process as follows: From the standpoint of what they can do, is obviously they should try to work with the student on the bus, they can counsel them, they can move their seat, they can work with them on the bus. If that's unsuccessful, they then write a referral which is given to the school for processing, describing what the behavior has been that is disruptive or that is [in] violation of the safety rules, and then that's given to the school to take care of... Typically, [upon receipt of the bus driver referral,] the principal will assign the assistant principal or have parent liaisons that will meet with the individual students regarding behavior, talk about what that behavior is, why it's dangerous, and so forth, counsel them the first time, and then go through a series of progressive disciplinary steps which can lead to suspension from the bus and ultimately expulsion if it's not corrected. The referral form indicates the disciplinary action taken by the principal or his designee. (Section 1006.10(2), Florida Statutes, prohibits the principal from delegating to bus drivers the authority to suspend students from riding the bus.) If the student is to be suspended from riding the bus, the student's parent must first be notified. The school bus operator is also notified of the discipline resulting from the referral. Before a suspended student may ride the bus again, he is required to present the pink carbon copy of the referral form to the driver.2 Mr. Rodriguez drove Bus 537 on the morning of Monday, February 9, 2009. He testified that it was "the same routine" on Monday. Mr. Rodriguez said that he did not even attempt to control the students because his efforts to do so the previous Friday had been such a failure. Mr. Rodriguez stated that he was concerned for his and the students' safety at the three railroad crossings the bus had to traverse on the way to Palmetto High School. The proper procedure is to put on the signal flashers when the bus comes within 50 feet of the railroad crossing. Then, when the bus is within 25 feet of the crossing, the driver turns off everything but the motor to achieve as complete a silence as possible, because he must be able not only to see but to hear whether a train is approaching the crossing. Mr. Rodriguez testified that he tried to silence the students at the railroad crossings, telling them it was for their own safety. They laughed and carried on with their screaming and horseplay. After finishing the morning route, Mr. Rodriguez reported to Ms. Waiters, who told him to write referrals on the students for their behavior at the railroad crossings and the general mayhem described by Mr. Rodriguez. Ms. Waiters told Mr. Rodriguez to take a School Board vehicle and drive to Palmetto High School to turn in the referrals. Mr. Rodriguez testified that he went to Palmetto High School and gave the referrals to the assistant principal, Carl Auckerman. Mr. Rodriguez testified that Mr. Auckerman told him he would take care of the matter. Mr. Rodriguez testified that the situation was at least as bad on the Monday afternoon route of Bus 537. Ms. Waiters phoned him at home that evening, and advised him to write more referrals on the misbehaving students. She asked him if he needed someone else on the bus, but Mr. Rodriguez said he could handle the situation. Mr. Rodriguez testified that he wrote referrals on Monday evening. He drove the bus on Tuesday morning, experienced the "party bus" situation again, and then wrote more referrals. He testified that he and Ms. Waiters drove to Palmetto High School with the new referrals. They met with Mr. Auckerman and the SRO, Officer Douglas Marston of the Palmetto Police Department. Mr. Rodriguez testified that Mr. Auckerman told them he was going to issue bus suspensions of eight-to-ten days to all of the students who received referrals. Mr. Rodriguez and Ms. Waiters were satisfied with this outcome, and left the office. Ms. Waiters generally supported Mr. Rodriguez' version of the events occurring on Monday, February 9 and Tuesday, February 10. However, Mr. Auckerman, the assistant principal, testified that he did not know Mr. Rodriguez, did not meet with him on February 9 or 10, and received no referrals related to Bus 537 prior to February 11, 2009. Officer Marston testified that he knew nothing of the situation on Bus 537 prior to the morning of Wednesday, February 11. The testimony of Mr. Auckerman and Officer Marston was consistent and credible. The testimony of Mr. Rodriguez and Ms. Waiters was inconsistent. Their chronology of events constantly shifted and was unsupported by the documentary evidence, which was consistent with the testimony of Mr. Auckerman and Officer Marston.3 Mr. Rodriguez testified that he alone met with Mr. Auckerman on the morning of Monday, February 9. In a deposition, Ms. Waiters testified that she accompanied Mr. Rodriguez to Palmetto High School on February 9 and was in Mr. Auckerman's office with Mr. Rodriguez. At the hearing, Ms. Waiters testified that her only meeting with Mr. Auckerman on February 9 occurred that afternoon at the Palmetto High School bus loop. During cross-examination, when she was confronted with her contradictory deposition testimony, Ms. Waiters testified: With all the dates, the 9th, the 10th and the 11th, it's very vague, everything. I probably did, probably didn't, but I did go in to see Mr. Auckerman. I don't know if he came to the bus loop on Monday or whether I went, but I did go there two consecutive days with Mr. Rodriguez. The above quote is typical of Ms. Waiters' testimony at the hearing. She would make a definite, affirmative statement as to where and when an event occurred, but when pressed by opposing counsel or contradicted by her own prior statements, she would retreat into vagueness and uncertainty. During her interview with Debra Horne, the OPS investigator, Ms. Waiters stated that referrals were submitted to Mr. Auckerman on Tuesday, February 10 and Wednesday, February 11, then changed her story to state that the referrals were not submitted until Wednesday, February 11 and Thursday, February 12. Both versions contradict her testimony at the hearing that she oversaw Mr. Rodriguez' writing of referrals on Monday, February 9 and Tuesday, February 10. Ms. Waiters attributed her confusion to Ms. Horne's interviewing style.4 Mr. Rodriguez was similarly subject to confusion as to the timing of events. As noted above, he testified that he and Ms. Waiters met with Mr. Auckerman on Tuesday, February 10 and that at this meeting Mr. Auckerman announced that the misbehaving students would be suspended for eight to ten days. During cross-examination, Mr. Rodriguez was presented with the referrals that he claimed to have written on February 10, and was forced to concede that these referrals described events that actually occurred on Wednesday, February 11. He unconvincingly continued to claim that the meeting occurred on February 10, and that there existed other referrals that were actually written on February 9 and 10 that were not part of the documentary evidence. Mr. Rodriguez claimed to have his own copies of these referrals, but was unable to produce them at the hearing. In her interview with Ms. Horne, Ms. Waiters claimed that on the morning of Wednesday, February 11, she was enforcing bus suspensions issued by Mr. Auckerman at their meeting on the previous day. At the hearing, she conceded that she could not remember whether the meeting with Mr. Auckerman occurred on February 10 or 11, and further conceded that no student had been suspended from Bus 537 prior to Wednesday, February 11, 2009. Mr. Rodriguez testified that Bus 537 was worse than ever on the afternoon of Tuesday, February 10, because the students knew they had received referrals and had nothing to lose. He was afraid for his personal safety when crossing railroad tracks. On the phone that evening, Ms. Waiters told Mr. Rodriguez that she would be riding the bus on Wednesday morning. As to the events leading up to Wednesday morning, Ms. Waiters testified that Mr. Rodriguez had difficulty writing his initial referrals on Monday because, as a substitute driver, he did not know the names of the students. Ms. Waiters lives in the area served by Bus 537, and drove many of the same students on her bus when they were in elementary school. She suggested that they "pull the tape" from Monday morning so that she could name the misbehaving students for Mr. Rodriguez. The School Board maintains recording video cameras on its school buses. However, the video camera on Bus 537 was broken and in need of repair. A written repair request submitted by Mr. Rodriguez at 10:13 a.m. on Tuesday, February 10, 2009, stated, "Camera & tape don't work; tape pops out & stays out; no red light indicating camera is on." Nonetheless, Mr. Rodriguez testified that he and Ms. Waiters watched a video recording from Bus 537 on Monday, February 9. Ms. Waiters testified that there was no video tape from February 9 because the tape was "popped out," but that they were able to watch video after the morning route on February 10. She stated that "the tape was working fine, but the audio was totally messed up." No video tape documenting the events of the morning of February 10 on Bus 537 was presented at the hearing. The video camera was repaired and fully functional on the morning of Wednesday, February 11, 2009, and a video recording of the events of that morning on Bus 537 was entered into evidence.5 The undersigned viewed the videotape at the final hearing, and viewed a DVD version of the videotape twice more during the preparation of this Recommended Order. Ms. Hindman, the regular driver, drove Bus 537 on the morning of February 11. Mr. Rodriguez was already on the bus as the video commenced at 6:44 a.m. Mr. Rodriguez thought he was to drive the bus on Wednesday morning, but for some reason Ms. Hindman showed up and drove. Mr. Rodriguez decided to ride the bus because Ms. Hindman had no control over the situation, and he would be free to watch the situation and continue writing referrals on the troublesome students. Ms. Waiters testified that she decided to ride Bus 537 on Wednesday morning because Mr. Palmer had ordered her to "take care" of the situation, which she took as permission to do whatever was needed to bring order to the bus.6 At 6:47 a.m., Ms. Waiters boarded Bus 537 at the corner of 22nd Street and 2nd Avenue, one stop before 29th and 9th. As the bus proceeded, Mr. Rodriguez consulted Ms. Waiters as he attempted to identify some of the troublemaking students. He held a sheaf of papers. Ms. Waiters admonished him not to discuss what they were about to do in front of the students7 already on the bus, and stated her intent to move those students to the back of the bus before the students boarded at 29th and 9th. The bus was scheduled to reach the stop at 29th and 9th at 6:50 a.m. On February 11, 2009, the bus stopped at 29th and 9th at 6:53 a.m. When the bus came to a stop, Ms. Waiters directed the students already on the bus to move to the rear seats. After the bus had been stopped for approximately ten seconds, a student at the 29th and 9th stop, whom Ms. Waiters identified as J.P., knocked on the door. Ms. Waiters moved to the door and out of camera range, but could be heard stating authoritatively, "Get your hands off the window." At the hearing, Ms. Waiters testified that she suspected J.P. was carrying a weapon and that she feared for her safety and that of the students on the bus, but believed that the safest course was to allow him to board the bus rather than confront him about the suspected weapon. This testimony cannot be credited, as Ms. Waiters made no mention of such a suspicion to the Sheriff's deputies who were later dispatched to the bus, to Mr. Auckerman or SRO Marston when they arrived at the bus, or to Ms. Horne during the later investigation. Ms. Waiters' testimony that she did not reveal her suspicions due to fear of reprisals from J.P. or his confederates, based in part on an apparently unrelated and unsolved break-in that occurred at her home five years earlier, is not credited. After admonishing J.P., Ms. Waiters stated, "Everybody that rode yesterday, let's get on the bus, come on." Then, only seconds later, she stated, "Everybody who rode this bus yesterday still thinks they are going to get on the bus. They're not riding anymore." She stood just inside the door and began allowing a few students on the bus one at a time, directing them to their assigned seats. Ms. Waiters could be heard telling one unseen student, "Off the bus, off the bus," while his voice could be heard saying, "But I ride this bus." She began reading out names from a list provided by Mr. Rodriguez. The named students, apparently those who did not make trouble for Mr. Rodriguez the previous day, were allowed to board the bus.8 After these students were boarded and seated, Ms. Waiters directed them to move to the back of the bus. Then, Ms. Waiters began letting the rest of the students from 29th and 9th onto the bus. As they boarded, she said, "Enjoy this ride. This is y'alls last day riding the bus ever." The videotape shows that these students boarded the bus in orderly fashion and were seated without incident. As the students were boarding, Ms. Waiters stated that the bus would not be stopping at 29th and 9th any more. "You're within walking distance, you'll walk," she said to an unseen student. By 6:59 a.m., all of the students had boarded the bus at the 29th and 9th stop. The bus remained stopped. The students talked loudly among themselves, but were otherwise well behaved. Ms. Waiters phoned her dispatcher and told her to request that the Manatee County Sheriff's Office send deputies to the bus stop at 29th and 9th. At approximately 7:02 a.m., a male student attempted to disembark, telling Ms. Waiters that he had phoned his mother and she was coming to pick him up. Ms. Waiters told him to be seated because they had to wait for the Sheriff's deputies to arrive. The student complained, "What Sheriff? Nobody didn't do nothing," but obeyed Ms. Waiters' instruction. While they waited, the students in the front of the bus could be heard laughing and joking about what various parents or step-parents might do when they came to the bus, such as breaking the windows or tearing off the door.9 At approximately 7:06 a.m., Ms. Waiters spoke to some unseen parents through the closed door of the bus, saying, "Wait a minute. We'll release them in a second." A few seconds later, she addressed the students: "We'll either be releasing you to your parents or the Sheriff. So if you have a cell phone, you want to call your parents. You can go ahead and call them." At this point, no Sheriff's deputy had arrived at the scene. The evidence established that the first deputy to arrive, Deputy Kenneth Warner, was not even dispatched until 7:07 a.m. This fact is significant because during her interview, Ms. Waiters told Ms. Horne that law enforcement had directed her to tell the student to call their parents. At the hearing, Ms. Waiters testified that a Sheriff's deputy told her to have the kids call their parents, and that she was just repeating what the deputy told her. Ms. Waiters' testimony on this point is clearly not true. At approximately 7:07 a.m., Ms. Waiters stated to the students, "We're waiting to release you to the Sheriff or your parents." At this point, the students were still in high spirits, talking loudly to each other but not noticeably upset. At approximately 7:08 a.m., a call was made to the Sheriff's Office by a parent. The caller informed the dispatcher that her son had used his cell phone to call her from Bus 537. Her son told her that the students were locked on the bus and the driver refused to speak to parents who had arrived at the bus stop in response to their children's calls. Deputy Warner arrived at 29th and 9th at 7:10 a.m. His view of the situation, which is entirely supported by the videotape, was as follows: [The students] were all sitting in their seats, no one was up, but they were vocal, they were expressing their concerns about comments and stuff like that Ms. Waiters was stating... She was kind of instigating an issue. She was walking up and down, and making comments. Like if they made a comment to her, she would reply with a comment which would fire them up, and then they would all have comments back and forth... [The four or five parents who arrived] just didn't know what was going on, as me, I didn't know what was going on, either. They were wondering why they were getting calls from their children. So, I don't know. They were upset. Deputy Warner credibly denied that he gave any directives to Ms. Waiters, or indeed had much idea why he had been summoned to the scene: "It was my impression when I arrived that she just needed me there as support, and that she was handling the situation." The videotape shows Ms. Waiters meeting Deputy Warner at the door of the bus, and stating that this was a situation similar to the "one we had a couple of weeks ago that I took care of."10 She told the deputy that certain students on the bus must either be taken to the juvenile detention center ("JDC") or be released to their parents, because there have been "a lot of problems" on the bus. Ms. Waiters offered Deputy Warner no further details as to why the students could not ride the bus to school. Because he was confused by the situation, Deputy Warner radioed dispatch and requested that SRO Marston respond to his call. At 7:12 a.m., Ms. Waiters announced to the students, "You need to call your parents because you will not be riding the bus. The ones that have parents at work, you'll need to get your aunts or something, because you will not ride the bus." Ms. Waiters began releasing students whose parents were waiting outside the bus. At 7:20 a.m. and at 7:22 a.m., Ms. Waiters again told the remaining students that they needed to call their parents for a ride to school. Deputy Daniel Whidden was dispatched by the Sheriff's Office and arrived at the scene after Deputy Warner. Deputy Whidden, who was also a football coach at Palmetto High School and knew several students on the bus, testified that he gave Ms. Waiters no direction on how to handle the situation. Ms. Waiters told him that there had been problems on the bus the day before, and she was calling parents and having them pick up their children. At 7:23 a.m., Deputy Whidden boarded the bus and explained to the students that they were not allowed to disembark because the School Board was responsible for their safety. He told the students that SRO Marston was on his way to the bus stop to assist in transporting to school those students who were not allowed to ride the bus. Deputy Whidden testified that when he boarded the bus, the students were all in their seats. Some were protesting that they had done nothing wrong, but no one needed to be calmed down. This testimony is consistent with the evidence of the videotape. At 7:26 a.m., Ms. Waiters told Deputy Whidden that the students in the rear would be transported to school on the bus. As to the others, she stated, "I told them yesterday at the school they might as well find transportation in the morning. Well, they came here, and we can't leave them standing out at the bus stop." In conversation with Deputy Whidden, a female student confirmed that some of the students had been told they would not be allowed on the bus for the rest of the year.11 Officer Marston and Mr. Auckerman arrived at the bus stop at 7:31 a.m. When they arrived, most of the students had already disembarked. At no time did Mr. Auckerman tell Ms. Waiters that the students on the bus should call their parents or be transported by Sheriff's deputies. Ms. Waiters' testimony to the contrary is not credited. Mr. Auckerman, Officer Marston, and Deputy Whidden drove students to Palmetto High School. The bus began to run again at 7:37 a.m., 44 minutes after it stopped at 29th and 9th. The bus made only one more stop before arriving at Palmetto High School. This stop occurred at 7:43 a.m. Two students boarded the bus. Bus 537 is scheduled to make five stops after 29th and 9th. Because of the delay, Ms. Waiters called the driver of Bus 534 to cover some of Bus 537's stops. However, not all of Bus 537's stops were covered, and Bus 534 was 15 to 20 minutes late picking up some of the students. Further, Bus 537 was scheduled to make an elementary school run after it dropped off students at Palmetto High School. The bus made only one of its nine scheduled stops for elementary school students because the parents of most of those students had given up on the bus and either driven their children to school or had the children walk.12 During the 2008-2009 school year, classes began at Palmetto High School at 7:45 a.m. Bus 537 typically arrived at Palmetto High School at 7:20 a.m. On Wednesday, February 11, 2009, Bus 537 arrived at Palmetto High School at 7:57 a.m., twelve minutes after the final bell. After the bus arrived at Palmetto High School, Ms. Waiters and Mr. Rodriguez went into the school and spoke to Mr. Auckerman. They presented him with the list of names that they had used to identify the misbehaving students on Bus 537. Mr. Auckerman told them that he would need referrals before he could take any disciplinary action against the students. Ms. Waiters and Mr. Rodriguez submitted some referrals on Wednesday, February 11, then submitted additional referrals on Thursday, February 12. The referrals described student misbehavior, such as failing to be silent at railroad crossings and using cell phones, but gave no indication that either Ms. Waiters or Mr. Rodriguez ever feared for their safety on Bus 537. Mr. Rodriguez testified that the only time he feared for his physical safety was when he had to drive the noisy bus over railroad crossings. He did not fear any sort of physical assault by the students on the bus.13 Mr. Auckerman passed on the referrals to Palmetto High School's parent liaisons, Robert Kelly and Kevin Jackson. "Parent liaisons" are School Board employees responsible for general disciplinary referrals and communicating with parents regarding student behavior and discipline. The principal of Palmetto High School has delegated the authority to issue bus suspensions to the parent liaisons. On Friday, February 13, Mr. Kelly interviewed some of the students. He decided that the referred students would be suspended from riding the bus, commencing Tuesday, February 17. However, as Mr. Kelly and Mr. Jackson were about to finalize the suspensions by entering the referrals into the computer system, Mr. Auckerman halted the suspension process pending a School Board investigation into the events of the morning of February 11. Mr. Auckerman was reacting to parent complaints about Ms. Waiters' actions on Bus 537. Mr. Palmer, the director of transportation, also began receiving complaints. Mr. Palmer spoke with Ms. Waiters, safety officer John Searles, and school personnel, and was unsettled by the inconsistency of their stories. On or about February 18, 2009, Mr. Palmer referred the matter to the OPS. Ms. Horne then began her investigation of the incident. At the conclusion of her investigation, Ms. Horne presented a written OPS investigatory report to her supervisor and scheduled a meeting of all persons in Ms. Waiters' chain of command, up to Mr. Palmer, the transportation director. At a meeting on March 19, 2009, the School Board personnel met and recommended to the Superintendent that Ms. Waiters' employment with the School Board be terminated. The Superintendent concurred with the recommendation. Aside from contending that she was merely carrying out suspensions issued by Mr. Auckerman, which was completely at odds with the credible evidence produced at the hearing, Ms. Waiters' chief defense was that her actions on February 11, 2009, were consistent with the action she took in an incident that occurred on Wednesday, January 28, 2009, for which the bus driver received a laudatory write-up in the local newspaper and the praise of law enforcement and school officials. In the earlier incident, a substitute driver on a morning route to Lakewood Ranch High School pulled the bus over on State Road 64 and refused to continue because she believed the students' actions were placing her and the students in danger. In particular, the students were rocking the bus back and forth to the point that the driver feared losing control. Ms. Waiters drove out to the scene, followed shortly by at least six Sheriff's deputies. Ms. Waiters described the students as "out of control," "hanging out of the windows, yelling and cursing, throwing stuff out of the windows, rocking the bus." Ms. Waiters boarded the bus and was able to calm some of the students. The Sheriff's deputies called the parents of the troublemaking students and gave them the choice of picking up their children or having them taken to the JDC. According to Ms. Waiters, some students actually fought with their parents and had to be forcibly taken to the juvenile detention center. The next day, the local newspaper ran an article containing praise for the substitute bus driver. The principal of Lakewood Ranch High School and a spokesman for the Sheriff's Office were both quoted saying that she "did the right thing." Though Ms. Waiters was not mentioned in the article, it is clear from her testimony that she believed the praise was reflected on her. The differences between the incidents of January 28 and February 11, 2009, are clear. In the earlier incident, law enforcement was summoned to deal with an immediate, on-going dangerous situation. Sheriff's deputies took charge of the matter, with some assistance from Ms. Waiters, and concluded that the bus driver had done the right thing in stopping the bus when it became too hazardous to continue. In the February 11 incident, the videotape makes plain there was no danger whatever. Once allowed to board the bus, the students took their seats and talked among themselves. There were no threats, no disturbances, no rocking of the bus. Ms. Waiters' claim that she felt threatened was unsupported and not credible. The students, with good reason, appeared mostly puzzled as to what was happening. From the incident of January 28, 2009, Ms. Waiters apparently took the lesson that she was authorized to stop the scheduled running of a school bus for nearly an hour and to call out Sheriff's deputies to assist her in disciplining students for misbehavior that occurred on previous days. This was the wrong lesson. Ms. Waiters acknowledged that she did not have authority to suspend students from the bus, and claimed that she was not "suspending" the students; rather, she was restoring "order and control" on the bus for the students' safety.14 Ms. Waiters' actions might have been partially justified had there been some imminent danger such as that on the Lakewood Ranch High School bus on January 28, 2009, though even in that situation it was Sheriff's deputies, not Ms. Waiters, who removed the problem students from the bus. On Bus 537 on February 11, 2009, in the absence of any immediate threat or even untoward behavior by the students, Ms. Waiters took it upon herself to halt the bus and require students to phone their parents for rides to school well before law enforcement arrived on the scene. Ms. Waiters' actions were disproportionate to the situation on the bus, and constituted "suspensions" of the students under any reasonable understanding of that term. Ms. Waiters' actions on the morning of February 11, 2009, might merit discipline short of termination had Ms. Waiters fully and honestly cooperated in the subsequent investigation. However, Ms. Waiters stubbornly told a convoluted and contradictory version of events that made little sense on its face and was at direct odds with the consistent and credible testimony of School Board personnel and law enforcement officers who were present during the relevant events, and at odds with the direct evidence of the videotape from Bus 537. Ms. Waiters lack of candor throughout the process, coupled with the extremely poor judgment she employed in stopping the bus and suspending students without immediate cause or authority, fully justifies the School Board's decision to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Manatee County School Board, enter a final order that terminates the employment of Respondent, Stephanie Waiters. DONE AND ENTERED this 1st day of February, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 February, 2010.
The Issue Whether Broward County School Board has good cause to non- renew Automotive Technical Charter High School of South Florida, Inc.'s Charter School Agreement.
Findings Of Fact On June 19, 2001, the School Board approved the initial Charter School Agreement that allowed Parkway Academy to open. The original contract was effective for a ten-year period, which ended on June 30, 2011. Parkway Academy was assigned school location number 5181. Parkway Academy serves students from both Broward and Miami-Dade counties. Parkway Academy is located on Broward College Campus and the 2011-2012 school year enrollment was approximately 517 students. Eighty-five students were in Parkway Academy's most recent graduating class and 84 were accepted into college. Charter schools are part of the public school system and are required to follow the same precepts as a public school. During the 2010-2011 school year, the school district conducted a program review of Parkway Academy's Charter to determine if the charter should be renewed. After the first program review conducted during the 2010-2011 school year, the School Board determined that Parkway Academy had academic performance and programmatic deficiencies. As a result of the deficiencies, the School Board only granted Parkway Academy a one-year renewal Charter. Parkway Academy's Charter was renewed for the 2011-2012 school year, permitting the school to operate through June 30, 2012. The Charter Agreement mandated that Parkway Academy "provide educational services in accordance with the terms of [the] charter school agreement." The Charter School Agreement provided the following contractual performance obligations in Section 2.D: "Any non- renewal cancellation or termination of the Charter shall be subject to Section 1002.33(8), Florida Statutes, and the terms of this Charter." Section 2.D.1. of the Charter prohibited Parkway Academy from being designated a "school in need of improvement" for more than two years and provided the following non-renewal provisions: a failure by the School to participate in the state's education accountability system created in section 1008.31 or failure to meet requirements for student performance stated in this Charter. * * * (f) receipt by the School of a state- designated grade of "F" in any Two (2) of Four(4) years or the School is designated as "a school in need of improvement" for more than Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress(AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform to current state law or rules; Section 2.D.1.a of the Charter delineated what constitutes "good cause" for charter termination or non-renewal and read in pertinent part: "Good cause" for termination or non-renewal shall include, but not be limited to, the following: * * * (2) receipt by the School of a state- designated grade of "F" in any Two (2) of Four (4) years or the School is designated as "a school in need of improvement" for more than "Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress (AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform with the current state or rules. * * * (22) any other good cause shown, which shall include without limitation, any material breach or violation by the School of the standards, requirements or procedures of this Charter such as: * * * (c) the School's failure to fulfill all the requirements for highly qualified instructional personnel as defined by the No Child Left Behind Act (NCLB) * * * (t) a failure by the School to fulfill all of the requirements for highly qualified instructional personnel as defined by NCLB Section 11.D of the Charter provided the requirements for teacher certification and highly qualified teachers and read in pertinent part: All teachers employed by or under contract to the School shall be certified and highly qualified as required by Chapter 1012, Florida Statutes and any other applicable state of federal law. Criteria developed by the School for hiring all other staff (administrative and support staff) shall be in accordance with their educational and/or experiential backgrounds that correspond to the job responsibilities they will be expected to perform. If the School receives Title I funds, it will employ highly qualified staff. In compliance with those requirements, the School's teachers shall be certified and teaching in-field and the School's support staff shall have attained at least Two (2) years of college education or have passed an equivalent exam. The School may employ or contract with skilled selected non-certified personnel to provide instructional services or to assist instructional staff members as education paraprofessionals in the same manner as defined in Chapter 1012 and as provided by State Board of Education rule for charter school Governing Boards; however, in order to comply with NCLB requirements, all teachers in core academic areas must be certified/qualified based on Florida Statutes and highly qualified as required by NCLB. The School agrees to disclose to the parents of its students the qualifications of instructional personnel hired by the School. Parkway Academy's Charter Agreement for the 2011-2012 school year was signed by the parties on or about March 3, 2011, and went into effect July 1, 2011. The School District conducted its next renewal review of Parkway Academy during the last week of October and first week of November of 2011 to determine if the charter school renewal should go beyond the 2011-2012 school year. Diane Rogers ("Rogers"), Personnel Administrator for the Certification Department, audited and reviewed Parkway Academy's instructors and the courses each instructor was teaching. On or about October 26, 2011, Rogers retrieved teacher assignment information from the Data Warehouse1 and reviewed the instruction assignments and qualifications for the 2011-2012 school year to make a determination if each of Parkway Academy's teachers were certified, teaching in field, out of field, highly qualified, or not highly qualified for the teaching assignments he/she had been given. After completing the teacher review audit, Rogers identified the following five faculty members who lacked appropriate teacher certification: John Ahrens ("Ahrens"), Valerie Cedant ("Cedant"), Jerry Goodbolt ("Goodbolt"), Talondra Ingram ("Ingram"), and Uriel Williams ("Williams"). Rogers found Ahrens was teaching auto mechanics and auto tech but did not have the required Broward certificate. Rogers notified Parkway Academy in November 2011 that Ahrens needed a Broward teaching certificate. Rogers also found that Cedant previously had a temporary certificate, which expired June 30, 2011, and Ingram's temporary certificate had also expired before the 2011-2012 school year. Additionally, Goodbolt was working at the school without ever applying for a teaching certificate. While assessing the Parkway Academy, Rogers also discovered Williams had applied for a certificate from the Florida Department of Education ("FDOE"). FDOE determined his status was ineligible for a Florida educator's certificate in any area. Therefore, Rogers properly categorized Williams as not highly qualified to teach his assignments, Physical Education, Personal Fitness and Health Education, for the school because Williams did not have the basic requirement, a Florida educator's certificate. Rogers also identified the following eight teachers who did not have the required highly qualified2 status when she did her review: Floyd Barber ("Barber"), Cedant, Ingram, Gleandeal Johnson ("Johnson"), Lee Kornhauser ("Kornhauser"), Hyaptia Mata ("Mata"), Roxanna Smilovich ("Smilovich"), and Manage Vincent ("Vincent"). Rogers determined that Cedant was not highly qualified in that Cedant was precluded from the status because she did not have a valid educator's certificate and was also teaching improperly out of field without a valid educator's certificate. Rogers determined that Barber was not highly qualified to teach his assignment, Literature and Arts, since his FDOE certification was in Business Education. Therefore, he was improperly teaching out of field at Parkway Academy. Rogers also found in her review that Johnson had a FDOE certificate in Business Education 6 through 12 but she was assigned to teach Journalism, which requires FDOE certification either in English 6 through 12, Journalism, or English 5 through Therefore, Johnson was not highly qualified to teach Journalism because she was teaching out of field improperly, and she had not met the requirements. Rogers also discovered during her audit that Kornhauser was FDOE certified in Math 5 through 9, which allows him to teach middle school grade level math but he was assigned to teach Business Math and Math for College Readiness, which requires a Mathematics 6 through 12 certification. Therefore, Rogers determined that Kornhauser was not highly qualified to teach his assigned courses and was improperly teaching out of field. Rogers' review of Mata found that she was FDOE certified in Biology 6 through 12, but she was assigned to teach Earth Space Science, Chemistry, and Physics, all three of which required certifications other than Biology. Rogers determined Mata was not highly qualified to teach the three courses and was improperly teaching out of field. Upon review, Rogers found that Smilovich's FDOE certification was in Biology 6 through 12, but she was assigned to teach Earth Space Science, which requires certification in Chemistry, Physics, Earth Space Science, or General Science 5 through 9. Rogers' audit also determined that Smilovich was not highly qualified for her assigned class, and she was improperly teaching Earth Space Science out of field. Rogers' review also found Vincent was FDOE certified in Biology 6 through 12, but Vincent was teaching Chemistry, which requires a certification in Chemistry 6 through 12. Rogers determined that Vincent was not highly qualified for the teaching assignment and was improperly teaching Chemistry out of field. Parkway Academy employed and had the following instructors teaching out of field for the 2011-2012 school year without the proper credential for the core course of instruction they were assigned: Cedant, Ingram, Johnson, Kornhauser, Mata, Smilovich, Vincent, and Williams. Seventeen out of the 52 classes at Parkway Academy were being taught out of field. After discovering the teachers who were teaching out of their fields during her audit, Rogers also checked to determine if Parkway Academy had complied with the requirement to notify the parents that their children had teachers providing instruction out of field. Rogers found that Parkway Academy had only notified parents partially regarding Vincent and Mata. She concluded that the newsletter notification was incomplete for Mata because it listed only one of her areas being out of field, and it failed to notify the parents about the other instructors teaching out of field. Rogers concluded her audit by determining that Parkway Academy did not comply with the Charter School Agreement and laws because the school failed to employ teachers who all had valid teaching certificates, failed to have all of its teachers teaching in the appropriate field, failed to correctly designate teachers who were highly qualified to teach core curriculum subject areas, and failed to correctly notify parents that their children were being taught by teachers who were out of field. Rogers emailed Parkway Academy on or about December 1, 2011, and requested updated information on the status of each deficiency regarding the instructors that lacked the proper certification and/or qualifications that she had discovered during her review. Parkway Academy provided Rogers an email update the next day on each teacher Rogers had listed in the email of December 1, 2011, that was not in compliance, but Parkway Academy never provided Rogers any replacement teachers' names or certifications to verify compliance as she requested. During December 2011, Parkway Academy took the following measures to correct some of the teacher certification and qualification deficiencies. Parkway Academy replaced Cedant, Ingram, and Smilovich with certified, highly qualified teachers. Also, Parkway Academy changed Barber, Johnson, and Kornhauser's core course codes to courses they were certified to teach. Parkway also obtained out of field agreements with Mata and Vincent to teach courses they were not certified to teach while each worked on certification in the area they were teaching. The School Board's Testing and Assessment Department also reviewed Parkway Academy's Charter. Among other things, the Department looked at Parkway Academy's Adequate Yearly Progress ("AYP"), the measure of school performance used to comply with the No Child Left Behind Act of 2001 ("NCLB"). The Testing and Assessment Department found that Parkway Academy did not meet AYP for the latest school year 2010-2011, which was reported after the signing of the renewal Charter School Agreement in March 2011. Additionally, the Department determined that the failure to meet the requirements for student performance for the 2010-2011 school year meant Parkway Academy had failed to make AYP for the following eight consecutive years: 2003-2004, 2004- 2005, 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010, and 2010-2011. Parkway Academy's failure to meet the AYP for eight consecutive years earned the school the status of a "school in need of improvement" for more than two years. Parkway Academy failed to operate in compliance with the Charter School Agreement. The Certification Department's audit review report which showed a failure to use instructors that had the proper certification and/or qualifications for a substantial part of the year, combined with the Testing and Assessment Department's review results that concluded the Respondent was a "school in need of improvement" for more than two years due to failing to make AYP for eight consecutive years, caused a recommendation to be made to the School Board to non-renew Parkway Academy's Charter. On March 20, 2012, the School Board voted not to renew Parkway Academy's Charter. A Proposed Non-Renewal of its Charter notice was sent to Parkway Academy. On April 4, 2012, the School Board received Parkway's letter dated April 2, 2012, requesting a hearing upon the proposed Charter non-renewal, which was forwarded to the DOAH. The day of the formal hearing, Ahrens obtained a vocational certificate, which qualified him to teach auto mechanics and auto tech. Kornhauser neither had applied for nor obtained mathematics certification for grades 6 though 12.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board, enter a final order declining to renew the Charter School Agreement for Automotive Technical Charter High School of South Florida Inc., upon both the statutory and contractual grounds of (1) failure to meet the requirements for student performance stated in Parkway Academy's Charter including the school's status as a "school in need of improvement" for more than two years; (2) failure to use instructors having proper certification and/or qualifications; (3) failure to have teachers teaching in their fields; and (4) failure for Parkway Academy to disclose the out of field qualifications to the students' parents. DONE AND ENTERED this 10th day of August, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2012.
Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 14th day of June, 2007.
