The Issue Whether Petitioner, Volusia County School Board, has good cause to non-renew Respondent?s charter for the Volusia Elementary Charter School as set forth in Petitioner?s Notice of Action to Not Renew the Charter for the Volusia Elementary Charter School Inc.
Findings Of Fact On June 24, 2008, the School Board and Boston Avenue entered into the School Board of Volusia County, Florida Charter for the Academies of Excellence, Inc. (the “Charter”). The Charter, which was a contract between the parties, was effective from July 1, 2008 through June 30, 2012. Pursuant to the Charter, Boston Avenue operates and maintains a pre-kindergarten through fifth grade charter school in DeLand, Florida. The school, which is a Florida public school, opened at the beginning of the Volusia County School District?s (“District”) 2008-2009 school year. The Charter provides that Boston Avenue is a unit of the District, is subject to the supervisory jurisdiction of the School Board, is accountable to the School Board for performance to the extent provided by law, and is subject to the laws of Florida and the rules of the State Board of Education. Florida public schools are subject to “a statewide program of educational assessment that provides information for the improvement of the operation and management of the public schools . . . .” School assessment is largely the result of student achievement assessment, including Florida Comprehensive Assessment Test (“FCAT”) scores, and measures of effective school management. § 1008.22(3), Fla. Stat. The Commissioner of Education is required to issue annual reports that describe student achievement in the state, each school district, and each school. The annual report assigns a grade to each school based on the results of the student achievement assessment scores, student learning gains, and improvement of the lowest 25th percentile of students in the school in reading and mathematics. Section 1008.34(1) establishes the grades and their meaning as follows: “A” - schools making excellent progress. “B” - schools making above average progress. “C” - schools making satisfactory progress. “D” - schools making less than satisfactory progress. “F” - schools failing to make adequate progress. Schools having an enrollment that is less than the minimum sample size do not receive a school grade. During its first year of operation in the 2008-2009 school year, Boston Avenue enrolled fewer than 100 students, which was less than the minimum sample size. It was therefore too small to receive a school grade. 7. For the 2009-2010 school year, Boston Avenue received a grade of “F.” For the 2010-2011 school year, Boston Avenue received a grade of “D.” For the 2011-2012 school year, Boston Avenue received a grade of “F.” Section XI.C.(1) of the Charter provides, in pertinent part, that “[t]his Contract may be renewed provided that a program review demonstrates that the criteria in section 1002.33(7)(a), Florida Statutes, have been successfully accomplished and that none of the grounds for non-renewal established by section 1002.33(8)(a), Florida Statutes, has been documented.” Dr. Parker took the position as the Board?s Coordinator of Accountability and Evaluation in January 2011. When she came to the job, the charter school program review process used a generic template that was applied to every charter school in the district, regardless of whether the areas of review listed on the template were applicable to a specific school?s charter. Dr. Parker modified the template to make it unique to each charter school, using the criteria of each charter to guide the language and structure of the template. Despite the change in the template, which is nothing more than a method of recording results, the charter review process remained essentially unchanged. In October 2011, the District conducted a program review of Boston Avenue to determine if the Charter should be renewed. On December 13, 2011, the Office of Program Accountability and Evaluation submitted its Boston Avenue Charter School Charter Review (“Review”) to the Superintendant of Schools. The Review covered the following topic areas: Curriculum and School Improvement Services, including the 2011 Annual Accountability Report; Facilities Services, Financial Services, including Finance, Budget and Insurance, and Food Services; Human Resources; Technology Services, including Student Accounting Services; Safety and Security; and Transportation Services. Each topic area had contract subtopics that were generally tied to specific Charter requirements and applicable statutory standards. The Review identified a number of areas in which Boston Avenue was deficient. Of the 80 individual contract subtopics, the Review identified 46 that were met, 19 that were partially met, 10 that were not met, and five that were not applicable. On March 22, 2012, Respondent submitted a Charter Review Response and Supplemental Appendix as its response to the December 13, 2012 Review. The evidence suggests that staff did not review or use the Charter Review Response and Supplemental Appendix in its deliberative process leading up to the decision to recommend non-renewal to the School Board. In March 2012, the School Board?s office of Curriculum and School Improvement Services and office of Student Transportation Services prepared supplemental reports to update the status of those subtopic areas that were previously determined to not meet the areas of review, and prepared revised charts that outlined their current status. It was suggested that the additional information set forth in the revised charts should not be considered in this proceeding, as it was generated after the normal review process was concluded. Given the de novo review afforded under the Administrative Procedures Act, the additional information and supplemental reports are pertinent to the consideration of whether the Charter should be renewed, and are considered herein. By its terms, the Charter expired on June 30, 2012. The vote to not renew the Charter was taken on March 30, 2012. A draft version of the Notice was provided as part of the agenda of the meeting. The meeting was attended by, among others, counsel for Boston Avenue and Boston Avenue Principal Nichole Gaw. After a short presentation by its staff and counsel, the School Board voted 5-0 to approve the school superintendant?s recommendation that the Boston Avenue Charter not be renewed. Counsel for Respondent understood the effect of the vote, and indicated to Petitioner that “[w]e will make a decision [whether to request a hearing] within the 14-day time.” The Notice was signed and executed on Friday, March 30, 2012. Petitioner made reasonable efforts to provide the signed Notice to Respondent on March 30, 2012, which efforts included an attempt to hand-deliver the Notice before 5:00 p.m., on that date to the Boston Avenue school building and to the law office of Respondent?s counsel. Both buildings were locked. In addition, efforts to electronically send the Notice to Petitioner were made over the weekend. Although reasonable efforts to effect delivery were made, the evidence is insufficient to prove that Respondent received actual written notice of Petitioner?s decision to not renew the Charter until an envelope containing the Notice was hand-delivered to an authorized agent of Respondent on Monday, April 2, 2012. Monday, April 2, 2012, was 89 days prior to the June 30, 2012, expiration of the Charter. Grounds for Non-Renewal 1. Failure to Meet the Requirements for Student Performance Stated in the Charter The Notice alleged that Respondent failed to meet the objectives for student performance established in the Charter. The Charter included the following measures of student performance: FCAT Testing - Academic Progress Section III.B.(2) of the Charter provides that: Student academic progress will be measured by a growth model as evidenced by standardized tests. Student academic progress will be measured by FCAT under the following standards. The student will have improved his or her FCAT Achievement level one year to the next; or The student will have maintained his or her achievement level as a 3, 4 or 5 from one year to the next; or The student will have remained within FCAT Achievement levels 1 or 2, but will have demonstrated more than one year?s growth on the FCAT developmental scale, applying the Department of Education?s measurement of growth.1/ Reading The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Reading as follows: Fourth Grade FCAT Reading 11.11 percent of fourth-grade students improved their FCAT reading achievement level one year to the next, and an additional 8.33 percent maintained a level five -- the highest level achievable. 80.56 percent of fourth-grade students failed to improve their FCAT reading achievement level one year to the next. 59% of fourth-grade students maintained their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 41% of fourth-grade students failed to maintain their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 42% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 58% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Fifth Grade FCAT Reading 4.76% of fifth-grade students improved their FCAT reading achievement level one year to the next, and an additional 14.29% maintained a level five - the highest level achievable. 80.95% of fifth-grade students failed to improve their FCAT reading achievement level one year to the next. 90% of fifth-grade students maintained their FCAT reading achievement level as a three, four, or five from one year to the next. 10% of fifth-grade students failed to maintain their FCAT reading achievement level as a three, four, or five from one year to the next. 29% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 71% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Math The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Math as follows: Fourth Grade FCAT Math 8.33% of fourth-grade students improved their FCAT math achievement level one year to the next, and an additional 5.56% maintained a level five -- the highest level achievable. 86.11% of fourth-grade students failed to improve their FCAT math achievement level one year to the next. 40% of fourth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fourth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next. 44% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 56% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Fifth Grade FCAT Math 4.76% of fifth-grade students improved their FCAT math achievement level one year to the next. 95.24% of fifth-grade students failed to improve their FCAT math achievement level one year to the next. 50% of fifth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 50% of fifth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 40% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. FCAT Testing - Academic Progress Conclusion A substantial, and often overwhelming, number of students failed to meet the criteria for academic progress measured by FCAT as established in section III.B.(2) of the Charter. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(2) of the Charter. FCAT Testing - Learning Gains In addition to the foregoing, section XIII.A. of the Charter provides, in pertinent part, that: The School shall be subject to the same accountability requirements as other public schools, including reports of student achievement information that links baseline student data to the School?s performance projections identified in the charter. The charter school shall identify reasons for any difference between projected and actual student performance. The “projections identified in this charter” shall be as follows: (1) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the reading portion of the FCAT; (2) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the math portion of the FCAT; (3) The average score for the students taking the science portion of the FCAT will meet or exceed the District average; and (4) The average score for the students taking the FCAT Writes will meet or exceed the District average. 54% of Boston Avenue students made learning gains on the reading portion of the FCAT in 2011. 44% of Boston Avenue students made learning gains on the math portion of the FCAT in 2011. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student learning gains established in section XIII.A. of the Charter. Other Student Assessment Tests Section III.B.(4) of the Charter provides that: In addition to the State required achievement tests, the School will use a standardized test for assessing students in core subject areas (reading, math, and science) in the Fall in order to get baseline data. The students will then be assessed in the Spring to determine the amount of yearly academic gain. Section III.B.(4) of the Charter governs the administration of the standardized assessment tests, rather than the results of the testing. The Florida Assessment for Instruction in Reading (“FAIR”) is an assessment test for reading proficiency that is provided by the state of Florida. All schools in the District administer the FAIR test three times a year. Boston Avenue met section III.B.(4) for reading by administering the FAIR in grades one through five. The Differentiated Accountability Assessment (“DA Assessment”) is an assessment test for math and science proficiency that was developed by District specialists, and has been used for a number of years. All schools in the District administer the DA test twice per year, in the fall and in the middle of the year. Boston Avenue met section III.B.(4) for math by administering the DA Assessment in grades three through five. Boston Avenue met section III.B.(4) for science by administering the DA Assessment for science in the fifth grade. In contrast to section III.B.(4) of the Charter, section III.B.(6) is directed to the results of the testing, and provides, in pertinent part, that “[t]he academic progress of students and the School will be evaluated and compared to the rate of progress of the students in the Volusia County School District not enrolled in the School.” Thus, an analysis of the results of the FAIR testing for reading, and the DA Assessment testing for math and science, and their measurement of academic progress, is appropriate for determining whether Respondent met the Charter standards to warrant renewal. Standardized Test for Reading - FAIR The District has established that a student is “proficient” in reading if he or she correctly answers 80% of the questions on the FAIR for their grade level. A demonstration of proficiency in FAIR correlates to a high probability that a student can score at a level three or higher on the FCAT reading achievement test. The FAIR testing for first and second grade is predictive, since there is no corresponding FCAT test, but allows the school and the District to identify targeted areas of need before the students get to third grade where FCAT scores may require a repeat of grade. The Board created four categories of measuring student achievement based on performance on the FAIR testing performed during the year. A student was determined to have “decreased proficiency” if he or she went from proficient to below proficient in reading during the course of the year. A student was determined to have “maintained proficiency” if he or she scored above the 80% correct answer level during the course of the year. A student was determined to have “maintained below proficiency” if he or she scored below 80% correct answer level during the course of the year, but was not falling further behind. Finally, a student was determined to have “improved proficiency” if he or she scored went from below the 80% correct answer level to at or above the 80% correct answer level during the course of the year. First Grade FAIR Reading In first grade, 18% of students improved their proficiency in reading, 51% maintained proficiency, 23% of students maintained below proficiency, and 8% of students decreased in proficiency. With 69% of students reading at a level of proficiency by the end of the year, and with only 8% decreasing in proficiency, Dr. Parker indicated that “first grade isn?t necessarily a huge area of concern.” Second Grade FAIR Reading In second grade, 3% of students improved their proficiency in reading, 9% of students maintained proficiency, 77% of students maintained below proficiency, and 11% of students decreased in proficiency. Thus, 88% of Boston Avenue second grade students were reading below proficiency. Third Grade FAIR Reading In third grade, 11% of students improved their proficiency in reading, 5% maintained proficiency, 78% of students maintained below proficiency, and 5% of students decreased in proficiency. With a total of 83% of students reading below the level of proficiency, and with the FCAT test being administered at the end of the year, Dr. Parker characterized the FAIR results as “alarming.” Fourth Grade FAIR Reading In fourth grade, 3% of students improved their proficiency in reading, 41% of students maintained proficiency, and 56% of students maintained below proficiency. No fourth- grade students decreased in proficiency as assessed by FAIR. Fifth Grade FAIR Reading In fifth grade, 16% of students improved their proficiency in reading, 28% percent maintained proficiency, and 56% of students maintained below proficiency. No fifth-grade students decreased in proficiency as assessed by FAIR. Standardized Test for Math - DA Assessment The DA Assessment test uses the same proficiency standards and categories that were developed for the FAIR. As with the FAIR test for reading, the DA Assessment is designed to be predictive of how students will perform on the FCAT. Third Grade DA Math In third grade, 46% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. No third-grade students decreased in proficiency in math as assessed by the DA Assessment. Fourth Grade DA Math In fourth grade, 41% of students improved from below proficiency to proficiency in math, and 59% of students maintained below proficiency. No fourth-grade students decreased in proficiency in math as assessed by the DA Assessment. Fifth Grade DA Math In fifth grade, 42% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. One fifth-grade student (4%, as based on a fifth-grade enrollment of 25 students) decreased in proficiency in math as assessed by the DA Assessment. Standardized Test for Science - DA Assessment In fifth grade, 4% of students maintained proficiency in science, 30% of students improved from below proficiency to proficiency, and 65% of students maintained below proficiency. No fifth-grade students decreased in proficiency in science as assessed by the DA Assessment. Failure to Maintain an Acceptable Level of Student Achievement in the State?s Education Accountability System and Other Standardized Testing Paragraphs 1 and 2.a. of the Notice make the school grades earned by Boston Avenue, and the results of the standardized student assessment tests, basis for the non-renewal of the Charter. The FAIR and DA Assessment test results demonstrate that, while some students demonstrated proficiency, the majority of students at Boston Avenue who were administered the non-FCAT standardized assessment testing either maintained below the level of proficiency or decreased in proficiency. Boston Avenue?s receipt of a school grade of “F” in the 2009-2010 school year, “D” in the 2010-2011 school year, and “F” in the 2011-2012 school year, combined with the results of the standardized student assessment tests, demonstrated a lack of student improvement over the course of the past three years. For the 2010-2011 school year, Boston Avenue was one of only two of the 46 elementary schools in the District to receive a grade of “D.” There were no “F” schools for that year. The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 46 elementary schools in Volusia County by a substantial margin. For the 2011-2012 school year, Boston Avenue was one of only two of the 52 elementary schools in the District to receive a grade of “F.” The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 52 elementary schools in Volusia County by an even wider margin than the previous year. Section 1002.33(7)(a)12., which governs the standards for issuance of a school charter, provides that the charter may be cancelled during its term “if insufficient progress has been made in attaining the student achievement objectives of the charter and if it is not likely that such objectives can be achieved before expiration of the charter.” Section 1002.33(7)(b)1., provides, in pertinent part, that “[a] charter may be renewed provided that a program review demonstrates that the criteria in paragraph (a) have been successfully accomplished and that none of the grounds for nonrenewal established by paragraph (8)(a) has been documented.” The grade of “F” for the most current year -- meaning that students at the school are failing to make adequate progress -- is strong evidence that the standards for renewal of the Charter have not been met. Thus, in the course of renewing a charter, it was not an error for the School Board to give consideration to the student achievement objectives, even those of a general and non-numeric nature. The evidence in this case, taken as a whole, demonstrates that Boston Avenue failed to meet levels of academic progress that approached even the lowest performing District-operated elementary schools in Volusia County. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(6) of the Charter, thus constituting a reasonable and valid basis for the non-renewal of the Charter. Comparison with Learning Gains of Similar District Schools Section III.B.(5) of the Charter provides that: To the greatest extent possible, a comparison of learning gains as defined by the State under the Florida A+ Accountability Plan will then be compared with the learning gains of similar district schools with comparable populations using demographic information obtained at www.myflorida.com. Learning gains will be examined as determined by the State based on the percentage of students in the lowest 25% of the School showing improvement of more than one year within level 1 or 2. The state minimum acceptable standard for performance in reading and mathematics by students in the lower quartile is 50% of these students will make a learning gain. The comparator elementary schools were determined by the percentage of students who were receiving free or reduced lunch and the percentage of students classified as a minority at each school. Those criteria are found to be adequate to represent schools with comparable demographic characteristics. Applying those criteria, 14 schools were determined to have “comparable populations” to Boston Avenue. In the 14 elementary schools having comparable populations, an average of 13.3% of students of lowest quartile within FCAT level one or two made learning gains in 2011. At Boston Avenue, 10.7% of students in the lowest quartile within FCAT level one or two made learning gains in 2011. Thus, neither Boston Avenue nor the average of the comparator schools came close to meeting the “state minimum acceptable standard” that 50% of the lower quartile of students within level one or two make more than one year of improvement. Although section III.B.(5) of the Charter set forth the state standard, it is not couched in language that would lend it to being applied as a Charter performance criterion. The fact that FCAT level one and two students at Boston Avenue and the comparative District schools were bunched closely in their levels of improvement, along with the incongruity of applying a standard of performance to Boston Avenue that is not being met by District schools, suggests that the 50% threshold is to be applied as an aspirational goal, rather than a standard for renewal. Thus, Boston Avenue?s failure to meet the “state minimum acceptable standard” set forth in section III.B.(5) of the Charter should not form a basis for non-renewal of the Charter. 3. Failure to Use State Approved Materials in Math Section III.A.(3) of the Charter provides that Boston Avenue?s “math curriculum will utilize a math series by Pearson/Scotts Foresman, or another math series approved by the State.” Paragraph 2.b. of the Notice provides, in pertinent part, that “[Boston Avenue] is using the Saxon math series, which has not been approved by the State. This fact was pointed out to the administration at [Boston Avenue], but they indicated that they did not intend to make any change.” Boston Avenue has used and continues to use the Saxon math series. The Saxon math series is not a math series by Pearson/Scotts Foresman. The State of Florida issues an annual list of approved publishers and materials. The Saxon math series is not on the state-approved list. Mr. Viecelli and Mr. Jackson testified as to their belief in the effectiveness of the Saxon math series, and the reasons for its purchase and use at Boston Avenue. Dr. Parker and others testified as to the Saxon math series incompatibility with the District?s math curriculum map. Regardless of the arguments that can be made for or against the Saxon math series, the Charter is specific as to the math series to be used at Boston Avenue. Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to use an approved math series in violation of Section III.A.(3) of the Charter. 4. Failure of the Student Transportation Service to Comply with State Regulations Student transportation services relevant to this proceeding are set forth in Section V.E. of the Charter. That section provides, in pertinent part, that: The transportation will be consistent with the requirements of section 1006.21 through 1006.27, Florida Statutes, as well as Florida State Board of Education Administrative Rules of Transportation section 6A-3.0001 [sic] through 6A-3.037, as may be amended from time to time. * * * All bus operators who have not obtained proper certification from the Sponsor shall not be allowed to transport any of the School's students. The School must also provide the Sponsor with documentation of the thirty (30) day bus inspection required by Florida Administrative Code Rule 6A- 3.0171. The Sponsor reserves the right to inspect the School's buses at any time, with reasonable advance notice (usually 24 hours) so as not to disrupt the School's operation, unless exigent circumstances exist. Failure to comply with these provisions shall constitute "good cause" and the basis for termination of this charter contract. Paragraph 2.c. of the Notice provides, in pertinent part, that: The student transportation service operated by BACS has persistently failed to comply with state regulations. Each year, the District conducts evaluations of the charter schools in the district to monitor compliance with the charter and the law. Each of the last three evaluations of BACS has noted serious violations in their student transportation service. Boston Avenue has provided transportation for its students since the 2009-2010 school year. It maintains a fleet of five buses, three of which operate on Boston Avenue?s three bus routes, and two of which were used as back-ups when needed. The evidence demonstrates that Petitioner provided reasonable advance notice of its inspections as set forth in the Charter. As a result of its October 2011 charter review, the School Board staff determined that Boston Avenue did not have medical emergency plans on its buses for five students who qualified as disabled under Section 504 of the Rehabilitation Act. A "504 Plan" describes the special conditions or non- medical care that a qualifying student may need while on the bus. Thus, the contract provision was determined to be “not met.” By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue did not transport any qualifying students. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain medical emergency plans is not a sufficient basis for non-renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue?s Bus Stop Safety Check forms were not correctly or completely filled out. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue?s Bus Stop Safety Check forms were inspected with no errors noted. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain correct Bus Stop Safety Check forms is not a sufficient basis for non-renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue failed to meet contract provisions regarding its bus drivers, including requirements for current DHSMV driving history checks, verification of weekly DHSMV updates for one of its drivers, and timely completion of new Category IV driver clearance forms. In addition, the School Board?s School Bus Operator Qualifications Evaluation Worksheet indicated that two of Boston Avenue?s bus operators did not have at least 40 hours of pre-service training, that three of the operators had deficiencies in their otherwise current medical examination certificates, and that the results of the operators? dexterity tests were not noted on their medical examination certificates, resulting in a performance level of 50%. The Performance Determination Worksheet instructed Boston Avenue to submit “a Corrective Action Plan” to remedy the deficiencies. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that “[a]ll operator records are in order and all are qualified to operate a school bus. The rating for the operators licensure/Qualifications review is 100% where a minimum of 95% is expected.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient basis for non- renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue?s bus No. 9601 did not have a required seating chart onboard, and that bus No. 0356 did not have a required orange “No Students Left Onboard” sign in the back window. Mr. Viecelli indicated that the operator had taken the seating chart from the bus to update it on the day of the inspection, and had not yet returned it. He further indicated that the chart was always on the bus when in use. At the time the “no students” sign deficiency was noted, Bus 0356 was the spare, and was not being used to transport students. When Bus 0356 was taken out of service, the manual, including the emergency packet and all of the instructions and signs used to maintain compliance with state and charter requirements, was moved by the driver to the in-service bus. Boston Avenue has since created complete manuals for each of its five buses. By March 15, 2012, prior to the vote on non- renewal, the compliance charts were revised to indicate that “[s]chool buses were checked for a Route sheet, Student Listing, Seating Chart and Crash Management Packet. Each bus had the required documents.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient bases for non-renewal of the Charter. The School Board alleged that, in 2009, Boston Avenue did not use its designated bus loop, and that buses stopped on the roadway behind the school without extending the bus “stop arms” while unloading students. The evidence demonstrates that this alleged deficiency was resolved long before the March 2012 vote on non-renewal, and that the contract provision was “met” as of the December 2011, Charter Review report. The alleged failures set forth in this paragraph are not sufficient basis for non-renewal of the Charter. The December 2011, Charter Review report indicated that the Charter provisions regarding School Bus Inspection Records were “partially met.” However, the report indicated that “[t]he rating for this review is 96.6% where a minimum of 95% is expected. The report indicated no significant or unresolved deficiencies. By March 15, 2012, prior to the vote on non-renewal, the status of the contract provision was changed to “met.” The alleged failure set forth in this paragraph is not sufficient basis for non-renewal of the Charter. The School Board conducts “spot check inspections” of Boston Avenue?s buses to monitor compliance operations and ensure compliance with applicable laws and regulations. As a result of deficiencies found during a spot-check inspection on March 15, 2012, the District requested that Boston Avenue bring its buses to the District facility for full inspection. The inspection revealed 26 total deficiencies; 15 of those deficiencies were repaired on the spot. Of the remaining deficiencies, three were the result of fluid leaks of one kind or another. Each of the leaks was minor, and did not cause the fluid levels in the respective reservoirs to drop below normal, making them difficult to locate. Boston Avenue had previously contracted with a mechanic who was to have repaired the leaks, but was not successful. Boston Avenue changed mechanics, and the problems have been resolved. The evidence demonstrates that all of the operational deficiencies related to Boston Avenue?s transportation services noted in the October 2011, review were met before the School Board?s vote on the renewal of the Charter. The evidence demonstrates that Boston Avenue made substantial efforts to correct the fleet deficiencies, most of which were resolved before the School Board?s vote on the renewal of the Charter. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that the deficiencies in Boston Avenue?s provision of transportation services were so persistent or pervasive as to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes. 5. Failure of the Governing Board to Exercise Continuing Oversight Over the Operations of Boston Avenue Paragraph 2.d. of the Notice provides that: The governing Board for BACS has failed to exercise continuing oversight over the operations of the charter school. Section 1002.33(9)(i), Fla. Stat., requires that the “governing board of the charter school exercise continuing oversight over charter school operations.” Several instances establish that the governing board for BACS failed to meet its obligations under that section of the statute. The Charter contains no specific standards pertaining to the requisite degree of oversight necessary to establish compliance with section 1002.33(9)(i). Paragraphs VI.A.10. and of the Charter require that Boston Avenue provide information to the School Board, including internal financial control policies and procedures and copies of internal audits and financial audits prepared by Boston Avenue or on its behalf. Boston Avenue complied with those requirements. Failure to Properly Monitor Expenditures by the Management Company Paragraph 2.d., bullet point one, of the Notice provides, in pertinent part, that “[t]he governing body has failed to properly monitor expenditures by its management company, School Management Solutions, Inc.” School Management Solutions, Inc. ("SMS") is Boston Avenue's school management company. SMS is a contractor that provides payroll, finance, purchasing, human resources, and other services to Boston Avenue. The Financial Services section of the December 2011, Review indicated that two of the 13 financial factors were “partially met,” with the remainder being met or not applicable. As it pertains to the failure to properly monitor expenditures, the Notice cited the audit report, and noted the purchase of “large dollar purchases by SMS prior to Boston Avenue Board approval.” The evidence indicated the expenditure to be for a school bus purchased for $6,500, which exceeded the limit of $5,000 for expenditures by SMS without Board approval. The Boston Avenue Board subsequently approved the expenditure. The audit also noted an SMS employee salary that was billed to Boston Avenue in addition to the SMS management fee. The SMS employee was the food services director, who worked at the school but whose salary was not included in the management fee. The review report indicated that Boston Avenue responded to the School Board?s Summary of Findings, and stated that: The policy has been reviewed and reiterated with the school staff and management company. The Board has been advised to appoint a treasurer or liaison person to more thoroughly review the financial statements and monitor the budget. There was no suggestion that Boston Avenue?s response to the review report finding was determined to be inadequate, or that it would not resolve the issue. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that Boston Avenue?s alleged failure to properly monitor expenditures by SMS was sufficient to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes. Conflict of Interest Resulting from the Management Company Appointing and Recommending Members of the Boston Avenue Board of Directors. Paragraph 2.d., bullet point two, of the Notice provides, in pertinent part, that “[t]the governing board for BACS improperly permitted an official from [SMS] to appoint and recommend members of the Board of Directors, which represents a conflict of interest.” The report of the independent auditors made the statement that “the management company (School Management Solutions, Inc.) has expressed the authority to appoint and recommend members of the [Boston Avenue] Board of Directors, which represents a conflict of interest.” (emphasis added). The report did not provide any detail as to how that expression was made, or by whom. There was no other evidence to support the auditor?s statement, nor was there any evidence that SMS actually appointed or recommended members of the Boston Avenue Board of Directors. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, a conflict of interest as alleged. Failure to Conduct Employment History Checks. Paragraph 2.d., bullet point three, of the Notice provides, in pertinent part, that “[SMS] has not been conducting the employment history checks required by statute before hiring an individual.” The Notice specifically alleged, as the basis for non-renewal: . . . that the required employment history check had not been conducted in the majority of the files reviewed. In a recent site visit, it was found that while a review of the files showed that they now contain a standard reference form, a review of those forms revealed that the majority of the references listed were personal references as indicated on their application, not previous employers as required by the statute. Instead, there was a standard statement - “all references gave positive reviews of the employee and recommend the company hire the employee.” (emphasis added). The Notice did not allege other deficiencies in the employment screening process. Thus, deficiencies related to fingerprint records, criminal background checks, drug screening and the like were not pled as basis for the non-renewal of the Charter, and are not considered herein. Section 1002.33(12)(g)4., provides that: [b]efore employing instructional personnel or school administrators in any position that requires direct contact with students, a charter school shall conduct employment history checks of each of the personnel?s or administrators? previous employers . . . . If unable to contact a previous employer, the charter school must document efforts to contact the employer. Section 1002.33(12)(g)5. provides that “[t]he sponsor of a charter school that knowingly fails to comply with this paragraph shall terminate the charter under subsection(8).” During the October 2011, site visit, the School Board representatives noted that the employee references were not in employee files. Ms. Paige-Pender testified that “there were not the required two phone references, a minimum of two phone references to the last two employers for each employee on file, which is required by Florida Statute.”2/ Mr. Jackson attributed the deficiency to a change in the law, which he understood to previously allow either personal or professional references, but which he believed to have been changed after the opening of Boston Avenue. The Boston Avenue Charter was entered on June 24, 2008, and became effective on July 1, 2008. Section 1002.33(12)(g)4. was enacted in substantially its present form as chapter 2008-108, §14, Laws of Florida, and became effective on July 1, 2008. Thus, the suggestion that employment history checks were not required at the time the Charter was granted and the school was opened is unsupported and not accepted. Mr. Jackson testified that upon being advised of the employment history check deficiency, Boston Avenue and/or SMS contacted each employee?s professional references. Since there is no standard state form for documenting employment checks, SMS documented those checks on a form developed by SMS. Ms. Paige- Pender indicated that her review of the employment history forms demonstrated that many of the references were personal references, and that many employee files did not include information from past employers or documentation of efforts to contact the past employers. While the appearance of the form itself does violate the Charter or state law, Ms. Paige-Pender?s testimony that the forms did not contain the information required was credible, and is accepted. Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent or its agent failed to conduct employment history checks before hiring personnel or administrators, as alleged, and failed to make its employment history records current after notice of the deficiency. 6. Failure to be in Good Corporate Standing Section X.A. of the Charter provides that Respondent “is a not for profit corporation formed and organized under the applicable laws of the state of Florida, and for the duration of this charter shall take all actions necessary to maintain that status in good standing.” Paragraph 2.e. of the Notice alleged that Boston Avenue failed to maintain its corporate standing under the laws of the state of Florida. At the time of the October 2011, review, Respondent had been administratively dissolved by the Secretary of State, Division of Corporations for failure to file its annual report and fees. On March 22, 2012, the corporate fees were paid, and Respondent was reinstated prior to the March 30, 2012, meeting of the Board at which the proposed non-renewal was considered and approved. Section 607.1422(3), provides that “[w]hen the reinstatement [of an administratively dissolved corporation] is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.” Based on the foregoing, it is found that the School Board failed to demonstrate by a preponderance of the evidence that Respondent?s corporate standing was a valid basis for the non-renewal of the Charter. 7. Violation of Law in the Operation of Boston Avenue Paragraph 3 of the Notice alleged that Respondent, or its agent, SMS, violated Florida law by failing to conduct employment history checks and by failing to maintain Boston Avenue in good-standing as a not-for-profit organization. Paragraph 3 of the Notice is a reiteration of the allegations contained in paragraph 2.d., bullet point three, and paragraph 2.e. of the Notice, and the findings as to this allegation are those set forth for those paragraphs above. School Board Actions Impairing Performance Respondent has argued that a history of “bad blood” existed between the Board and Boston Avenue that tainted the relationship, and potentially resulted in the artificial lowering of Boston Avenue?s school grades. The evidence indicates that the Board and the District followed established procedures with regard to its actions, which included providing notice prior to conducting transportation inspections, and placing FCAT monitors into all classrooms of school that had received a grade of “F” for the preceding year. The evidence that the monitors acted inappropriately during the testing was not convincing, and in any event was not sufficient to establish that the presence of the monitors was so disruptive as to result in a decline in student performance in their FCAT testing. Limitation on the Grounds for Non-Renewal Respondent?s argument that only items related to student safety may form the basis for non-renewal is not persuasive. The purpose of public schools, including charter schools, is to ensure the academic progress and achievement of their students. It was not outside of the scope of the School Board?s authority to base its decision as to whether to renew the charter on the extent to which the goals for student performance and achievement established by the Charter were met. Ultimate Findings of Fact The standards for academic performance set forth in the Charter were sufficient to allow the School Board to make a reasoned assessment as to whether criteria in the Charter regarding student performance and achievement were met during the period of operation. The evidence in this case demonstrates that Boston Avenue has failed, in virtually every measurable area, to keep pace with the educational standards of schools operated by the District. Respondent?s failure to meet the standards for academic performance and achievement as set forth herein forms a reasonable basis for non-renewal of the Charter. Except for Boston Avenue?s failure to conduct timely and complete employment history checks, the basis for non- renewal identified as “other good cause shown,” either were not proven or would not, standing alone, constitute sufficient grounds for non-renewal. As to the employment history checks, the School Board proved that violation of the charter and Florida statute, in combination with the other areas of non- compliance with the Charter, forms a reasonable basis for non- renewal of the Charter. Based on the evidence and testimony as a whole, the School Board proved, by a preponderance of the evidence, that Boston Avenue failed to meet the criteria for renewal of its Charter, and that its proposed action to deny the renewal of the Charter was not in error.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Volusia County School Board, enter a final order declining to renew the charter school agreement existing between it and Volusia Elementary Charter School, Inc., d/b/a Boston Avenue Charter School. DONE AND ENTERED this 14th day of December, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2012.
The Issue (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 Respondent, Mark Ostermeier, violated Sections 1012.795(1)(c), (1)(g), and/or (1)(j), Florida Statutes (2011), and/or Florida Administrative Code Rule 6A-10.081(3)(a), as alleged by the Administrative Complaint dated October 14, 2014; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Pam Stewart, as Commissioner of Education, on behalf of the Florida Educational Practices Commission, is authorized by Florida law to investigate and prosecute cases against teachers with Florida teaching certificates. See §§ 1012.315, 1012.795, and 1012.796, Fla. Stat. Respondent, Mark A. Ostermeier (Respondent), holds a Florida educator’s certificate, Certificate No. 662488, covering the subject area of art, grades kindergarten through 12. Respondent’s teaching certificate is valid through June 30, 2016. At all times material to the allegations of this case, Respondent was employed by the Brevard County School District (District) and worked as an art teacher at the high school and elementary school levels. Except for the school year ending 2002, the District issued acceptable evaluations to Respondent. From the time Respondent was assigned to Bayside High School (Bayside) until the 2008/2009 school year Respondent received acceptable evaluations. For the school years 2008/2009 and 2009/2010 Respondent was assigned to Bayside. The principal at Bayside during the relevant time span was Robin Novelli. While at Bayside, Respondent was responsible for instructing students in grades 9 through 12 in the area of art. During the 2008/2009 school year, Mr. Novelli became concerned regarding Respondent’s classroom management, planning, and instruction. Although he signed off on the evaluation for that year (performed by another school administrator), Mr. Novelli decided he would assume the role of evaluator for Respondent for the following school year. Before 2008/2009, Respondent received acceptable evaluations. The principal at Bayside during those years was John Tuttle, who signed off on all of Respondent’s evaluations, but did not personally evaluate Respondent. Mr. Tuttle believed Respondent to be a competent instructor. In May 2009, Respondent exhibited unacceptable behavior and Mr. Novelli received complaints from a parent and student that Respondent had refused to return the student’s artwork. The student withdrew or did not re-enroll in Respondent’s art class, and Respondent took one of the student’s paintings to his home. When the student and parent demanded the return of the painting, Respondent refused to return it. When Mr. Novelli intervened, Respondent relented and eventually returned the student’s painting. The student believed Respondent was refusing to return the painting in an effort to get the student to re-enroll in Respondent’s class. Respondent denied the allegation but did not have a valid reason for not returning the student’s art. Bayside did not have an advanced placement (AP) art program. Respondent was desirous of establishing such a program and sought to do so. One of the activities that would enhance an AP art program was a field trip Respondent proposed for students to attend a National Portfolio Day conference. Respondent attempted to pitch the field trip for his art students, but did not follow directives in order to get the trip approved. Mr. Novelli did not approve the trip. Respondent did not have art students who met the requisite level of proficiency to warrant an AP level class. Nevertheless, Respondent continued to fuel the students’ desire to attend the conference. When Respondent failed to meet the prerequisite criteria to have the field trip approved, he blamed Mr. Novelli. In October 2009, Mr. Novelli observed Respondent and gave him an interim evaluation that marked him as overall unsatisfactory. Five categories were unsatisfactory and one category needed improvement. Thereafter, Mr. Novelli gave Respondent prescriptive plans for improvement. The Professional Development Assistance Plans (PDAPs) itemized what Respondent needed to do to improve his performance. The plans provided specific strategies and acts for Respondent to do to improve. Respondent did not follow the PDAP. Trying to communicate with Respondent proved difficult, as his interpretation of what was needed to improve differed from the directives of the PDAP. Respondent did not improve, and it became Mr. Novelli’s opinion that students in Respondent’s art classes had been deprived a minimum educational experience. Mr. Novelli’s expectations of Respondent were based upon his years as a trained administrator to evaluate teachers in all courses. Because Respondent continued to provide deficient classroom management, planning, and instruction, Mr. Novelli evaluated Respondent as unsatisfactory. As the end of the school year approached, Respondent’s performance did not improve to any significant degree. Rather than continue at Bayside, Respondent’s union representative, acting on his behalf, sought a transfer for Respondent to another school. That transfer was granted by the District. Respondent made several false accusations against Mr. Novelli and/or other school administrators. At one time or another Respondent stated he had been recorded with a USB recording pen; had been falsely arrested because of a false claim made by a District employee; had been poisoned due to an environmental hazard that Respondent was forced to endure; lost a child because of District treatment; and had his car vandalized by a school administrator. None of the accusations were accurate. Respondent started the 2010/2011 school year with a PDAP at Lockmar Elementary School (Lockmar). While at Lockmar, Respondent was supervised by the principal, Ms. Hostetler. Respondent respected Ms. Hostetler and acknowledged she had worked to assist him. Nevertheless, despite her efforts to give Respondent constructive help to meet the criteria and to improve deficiencies, Ms. Hostetler evaluated Respondent as unsatisfactory. The issues with planning, classroom management, and ability to provide effective instruction to students continued. In October 2010, Ms. Hostetler gave Respondent an interim evaluation that scored him as unsatisfactory in four categories and needs improvement in one. Ms. Hostetler noted that (as in the past) Respondent failed to have adequate lesson plans, failed to provide meaningful instructions to students in an organized, efficient manner, and failed to manage his classroom to assure that all students were appropriately engaged in the lesson. Additionally, Ms. Hostetler noted that Respondent did not have his classroom ready for instruction when students arrived for class and did not timely release the students back to their teachers at the conclusion of the art session. This was a problem because the classroom teachers were delayed or inconvenienced by Respondent’s behavior. Despite counseling for this issue, Respondent’s deficiencies at the beginning and conclusion of class continued. It came to Ms. Hostetler’s attention that Respondent was sending disruptive students outside his classroom to “look for dinosaurs.” His belief that this technique for behavior management was acceptable was erroneous. Ms. Hostetler did not approve the practice and opined that it placed students at risk. Respondent did not accept Ms. Hostetler’s authority as definitive on the issue. Respondent maintained that his technique was an acceptable strategy that should have been allowed. Ms. Hostetler next evaluated Respondent in February of 2011. Noting little improvement, the February evaluation found the Respondent’s teaching practices remained unsatisfactory. Respondent failed to use 21st Century equipment as Ms. Hostetler had requested. Additionally, he did not use art materials appropriately, did not control the classroom, and did not differentiate course work by age and grade. Nevertheless, Ms. Hostetler gave Respondent more time to improve and again issued a PDAP that was designed to give Respondent specific directives. At the conclusion of the school year, Ms. Hostetler evaluated Respondent’s performance as unsatisfactory. He was given a contract for the following school year in error. The District eventually caught the mistake and notified Respondent that his employment with the schools would be terminated. Subsequent to a two-day administrative hearing, the DOAH Administrative Law Judge issued a Recommended Order that found the District’s action was supported by the weight of the evidence presented. Respondent’s teaching was unacceptable during the 2010/2011 school year and failed to provide students with a meaningful educational opportunity. Respondent was incompetent to comply with directives, which were reasonable and tailored to help Respondent meet the mandates of the PDAPs. Respondent’s art students were deprived a minimum educational experience.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Educational Practices Commission enter a final order revoking Respondent's teaching certificate. S DONE AND ENTERED this 30th day of June, 2016, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 30th day of June, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Robert Charles McClain, Esquire 4910 Flora Drive Melbourne, Florida 32934 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
The Issue The issue in this case is whether a district school board is entitled to terminate a teacher's employment for just cause based upon the allegation that he picked up an administrator and dropped her to the floor.
Findings Of Fact Introduction The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Michael De Palo ("De Palo") is a teacher. He was employed in the Miami-Dade County Public School System from September 1999 until September 10, 2003, on which date the School Board suspended him without pay pending termination. At all times relevant to this case, De Palo was assigned to Miami Norland Senior High School ("Norland"), where he taught social studies. The School Board's preliminary decision to dismiss De Palo was based on an incident that occurred at Norland on January 23, 2003. De Palo is alleged to have committed at least a technical battery that day upon the person of Gladys Hudson, an Assistant Principal, in the presence of Benjamin Cowins, a school counselor. These three are the only individuals who have personal knowledge of the January 23, 2003, incident. De Palo, Ms. Hudson, and Mr. Cowins testified in person at the final hearing. Also, proof of some prior statements about the incident was introduced into evidence. The most reliable such proof, in terms of establishing what was actually said, consists of the signed, written statements of Ms. Hudson and Mr. Cowins, dated February 3, 2003, and January 27, 2003, respectively, as these documents contain the witness' own words. Ms. Hudson and Mr. Cowins also gave verbal accounts to Detective Hadley, the school police officer who investigated the incident. Detective Hadley recorded their statements in his March 5, 2003, Preliminary Personnel Investigation Report, which is in evidence. De Palo, too, made a brief oral statement about the matter to Detective Hadley, which statement is recounted in the investigative report. De Palo also gave an oral statement at a conference-for-the-record held on May 14, 2003, and this statement is set forth in a Summary of Conference-for-the-Record dated May 19, 2003, which is in evidence. The aforementioned writings memorializing the several witness' prior oral statements, having been prepared by (and thus filtered through) someone other than the witness himself or herself, do not necessarily capture the witness' actual words and therefore have been accorded relatively little weight, as compared with the testimony given under oath at hearing. Ms. Hudson and Mr. Cowins are largely in agreement as to what happened on January 23, 2003. Their version of the incident, however, conflicts irreconcilably with De Palo's on crucial points. After carefully reviewing the entire record and reflecting upon the respective impressions that each of the participant-eyewitnesses made on the undersigned at hearing, the fact-finder has determined that De Palo's testimony, for the most part, is more credible than that of Hudson/Cowins. To the extent any finding of material fact herein is inconsistent with the testimony of one witness or another, the finding reflects a rejection of all such inconsistent testimony in favor of evidence that the undersigned deemed to be more believable and hence entitled to greater weight. Material Historical Facts On the morning of January 23, 2003, Ms. Hudson and Mr. Cowins were standing and talking in the hallway outside the door to Mr. Cowins' office. De Palo approached the pair as he walked through the hallway on his way to the copy machine. The hallway where this encounter took place is narrow and does not afford sufficient space for three adults to pass by each other with ease. Consequently, Ms. Hudson, whose feet hurt almost every day due to preexisting conditions, requested that De Palo please take care not to step on her feet when he passed.2 This plea for caution was not given because De Palo had stepped on Ms. Hudson's feet in the past, or because De Palo was approaching in a manner that threatened to injure her feet, but rather because the passage was so narrow. (Ms. Hudson would have said the same thing to any colleague who happened down the hallway at that particular time.) In response to Ms. Hudson's entreaty, De Palo remarked that he would "sweep her off her feet" and help Ms. Hudson back to her office. De Palo, who was in good spirits at the time, made these comments in a lighthearted, even jovial manner. His demeanor was good-natured——not hostile, threatening, or menacing. De Palo proceeded to pick Ms. Hudson up. At this point, it is relevant to note that De Palo is a retired firefighter and paramedic who had returned to teaching after a 28-year career with the fire department. From his work experience, De Palo was familiar with body mechanics, and he knew how to lift and transport someone without injuring himself or the person being carried. To lift Ms. Hudson, De Palo placed one hand and arm on her back at around shoulder level, and another hand and arm under her legs, at the knees. Once he had her off the ground, De Palo held Ms. Hudson close to his body, more-or-less at his waist level, in a semi-reclining position, her head somewhat higher than her legs. (To envisage the way he held her, imagine the iconic picture of the groom carrying his bride across the threshold.3) Ms. Hudson is relatively small woman——she weighed approximately 110 pounds at the time of the incident——but nevertheless De Palo likely could not have lifted her as he did, the undersigned reasonably infers, without her cooperation or acquiescence. This is because, in order to pick her up, De Palo needed to set his own feet and arms, during which maneuvering—— which would have revealed his intentions——Ms. Hudson easily could have moved out of position (e.g. by stepping forward), had she objected to being lifted.4 There is no persuasive evidence, and thus it is not found, that De Palo grabbed Ms. Hudson and forcibly wrestled her into his arms to be lifted.5 Ms. Hudson did not protest or object when De Palo picked her up. Indeed, the persuasive evidence establishes that she said nothing at all. The undersigned finds that had she been physically or verbally resistant (which she was not), De Palo would have refrained from lifting Ms. Hudson off her feet. It is found as well that De Palo had no intent to harm Ms. Hudson in any way, including through the infliction of emotional distress. Rather, De Palo, the former fireman, believed that he was doing a good deed, in a playful manner. With Ms. Hudson in his arms, De Palo walked a short distance (15 feet or so) to her office, which is around a corner, and hence cannot be seen, from Mr. Cowins' office. Mr. Cowins did not follow along. The door to Ms. Hudson's office was open, and De Palo carried her into the room, where he set her down on her feet. De Palo did not drop Ms. Hudson onto the floor, nor did she fall down, and any evidence suggesting otherwise is explicitly rejected. De Palo bade Ms. Hudson a good day and left. The entire episode had lasted no more than 30 seconds. The next day, Ms. Hudson summoned De Palo to her office and told him that his lifting and carrying her had been inappropriate. De Palo agreed and apologized. At some point after January 23, 2003, Ms. Hudson filed a workers' compensation claim relating to the incident, during which, she maintained, her back had been hurt. Ms. Hudson remained off duty for about one month. While these particular facts are not disputed, the evidence in the record does not persuade the undersigned that Ms. Hudson was injured as a result of De Palo's actions on January 23, 2003.6 Ultimate Factual Determinations De Palo's conduct on January 23, 2003, did not entail threats, threatening behavior, or acts of violence. Therefore, De Palo did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. De Palo's conduct on January 23, 2003, constituted horseplay. His spur-of-the-moment behavior, like most on-the- job tomfoolery, while foolish and inappropriate in hindsight, and certainly neither authorized nor praiseworthy, was nevertheless relatively harmless in the grand scheme. De Palo's actions for a half-minute that day were plainly out of place and unprofessional, but his conduct was not "unseemly"——an adjective that, as ordinarily used, denotes something offensive to good taste. Moreover, De Palo did not use abusive or profane language in the presence of Ms. Hudson and Mr. Cowins. Therefore, it is determined that De Palo did not violate School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and abusive or profane language. The School Board has not identified, and the undersigned has not located, a specific principle in Florida Administrative Code Rule 6B-1.006 (prescribing the Principles of Professional Conduct for the Education Profession in Florida) that clearly proscribes the conduct in which De Palo engaged on January 23, 2003. Accordingly, it is determined that De Palo is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3). Finally, it is determined that De Palo's conduct was not so serious as to impair his effectiveness in the school system.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. In an administrative proceeding to dismiss a teacher, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995). De Palo's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). II. In its Notice of Specific Charges served October 13, 2003, the School Board advanced three theories for De Palo's removal: Violence in the Workplace (Count I); Conduct Unbecoming a School Board Employee (Count II); and Misconduct in Office (Count III). Counts I and II are grounded in School Board Rules, namely School Board Rule 6Gx13-4-1.08 and School Board Rule 6Gx13-4A-1.21. These Rules, like all rules applicable to only one school district, are not published in the Florida Administrative Code. See § 120.55(1)(a)2., Fla. Stat. The School Board neither introduced copies of its Rules into evidence nor asked that official recognition be taken of them. Thus, although the undersigned thinks he knows the contents of these Rules, based on experience and access to DOAH's Recommended Orders, he does not have before him, in this record, the complete text of either Rule as offered during the hearing, where the accused party would have had opportunities to inspect and object to the admission or official recognition thereof. Though unlikely to be applauded on appeal, it is possibly within the undersigned's discretion to initiate the process, on his own motion, for taking official recognition of, or reopening the record to receive in evidence, the pertinent School Board Rules. See Collier Medical Center, Inc. v. State Dept. of Health and Rehabilitative Services, 462 So. 2d 83, 86 (Fla. 1st DCA 1985)(Allowing "a party to produce additional evidence after the conclusion of an administrative hearing below would set in motion a never-ending process of confrontation and cross-examination, rebuttal and surrebuttal evidence, a result not contemplated by the Administrative Procedures [sic] Act."). Such a process would entail (a) requesting copies of the Rules and (b) affording each party an opportunity to present information relevant to the propriety of supplementing the record in this manner. Cf. § 90.204, Fla. Stat. (setting forth the procedure for sua sponte taking judicial notice of a fact). The undersigned is disinclined to do this, however, believing it reasonable to insist that the School Board produce at hearing, without prompting, a complete copy of any unpublished rule upon which it relies——or suffer the consequence of failure. The ordinary consequence of failing properly to introduce a pertinent rule would be, of course, a determination that the School Board had failed to prove a violation of the rule——and that is what would happen here. The undersigned cannot ultimately determine that De Palo violated either School Board Rule 6Gx13-4-1.08 or School Board Rule 6Gx13-4A-1.21, regardless of what the other evidence might establish, unless he can examine the Rules in question. Thus, the undersigned's refusal to initiate a process for receiving these Rules into the record necessarily would be outcome determinative as to Counts I and II. It so happens in this case, however, that when the undersigned applies what he thinks the Rules in question provide to the historical facts as found above, ultimate determinations of innocence result. Thus, in this case, receiving the Rules would not change the outcome, assuming the Rules say what the undersigned believes they say. The question of whether to receive the Rules sua sponte will therefore be sidestepped. For the purposes of this Recommend Order, it will simply be assumed, for the sake of reaching the merits, that the Rules are properly before the undersigned.7 III. In this section, the three charged offenses will be examined one-by-one, putting aside momentarily the element of "resulting ineffectiveness," which, being common to all counts, will be addressed separately in the next section. For organizational convenience, the counts will be taken up in reverse order, starting with Count III. Misconduct in Office The School Board is authorized to terminate the employment of a teacher such as De Palo "only for just cause." See § 1012.33 (1)(a), Fla. Stat.; see also § 1012.33(6)(a), Fla. Stat. ("Any member of the instructional staff . . . may be suspended or dismissed at any time during the term of the contract for just cause[.]") The term "just cause” includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. § 1012.33(1)(a), Fla. Stat. The term “misconduct in office” is defined in Florida Administrative Code Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel" and provides, in pertinent part, as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B-1.001) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6B- 1.006), which are incorporated in the definition of "misconduct in office," provide as follows: 6B-1.001 Code of Ethics of the Education Profession in Florida. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * 6B-1.006 Principles of Professional Conduct for the Education Profession in Florida. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety. Shall not unreasonably restrain a student from independent action in pursuit of learning. Shall not unreasonably deny a student access to diverse points of view. Shall not intentionally suppress or distort subject matter relevant to a student’s academic program. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Shall not intentionally violate or deny a student’s legal rights. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination. Shall not exploit a relationship with a student for personal gain or advantage. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law. Obligation to the public requires that the individual: Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression. Shall not use institutional privileges for personal gain or advantage. Shall accept no gratuity, gift, or favor that might influence professional judgment. Shall offer no gratuity, gift, or favor to obtain special advantages. Obligation to the profession of education requires that the individual: Shall maintain honesty in all professional dealings. Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization. Shall not interfere with a colleague’s exercise of political or civil rights and responsibilities. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination. Shall not make malicious or intentionally false statements about a colleague. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues. Shall not misrepresent one’s own professional qualifications. Shall not submit fraudulent information on any document in connection with professional activities. Shall not make any fraudulent statement or fail to disclose a material fact in one’s own or another’s application for a professional position. Shall not withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment. Shall provide upon the request of the certificated individual a written statement of specific reason for recommendations that lead to the denial of increments, significant changes in employment, or termination of employment. Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules. Shall self-report within forty-eight (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes. Shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes. Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes. Shall comply with the conditions of an order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice. Shall, as the supervising administrator, cooperate with the Education Practices Commission in monitoring the probation of a subordinate. As shown by a careful reading of Rule 6B-4.009,8 the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule9 that (2) causes (3) an impairment of the employee's effectiveness in the school system. The second and third elements can be can be conflated, for ease of reference, into one component: "resulting ineffectiveness." A school board seeking to terminate an employee on the basis of misconduct in office must prove "each and every element of the charge." MacMillan v. Nassau County School Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Here, the School District did not allege or prove, nor has it argued, that De Palo violated a particular Principle of Professional Conduct. Further, none of the Principles appear, to the undersigned, to be obviously applicable to the situation at hand. Accordingly, it is concluded that the offence of misconduct in office has not been established. Conduct Unbecoming a School Board Employee The School Board grounded its charge of "conduct unbecoming a school board employee" on De Palo's alleged violation of School Board Rule 6Gx13-4A-1.21, which provides (the undersigned assumes) as follows: All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. This particular offense is not one of the just causes enumerated in Section 1012.33(1)(a), Florida Statutes, although that statutory list, by its plain terms, is not intended to be exclusive. Yet, the doctrine of ejusdem generis10 requires that "conduct unbecoming" be treated as a species of misconduct in office, so that, to justify termination, a violation of School Board Rule 6Gx13-4A-1.21 must be "so serious as to impair the individual's effectiveness in the school system." See Miami- Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. This case does not involve allegations of abusive or profane language in the workplace. Thus, the question whether De Palo violated School Board Rule 6Gx13-4A-1.21 turns on whether his conduct was "unseemly." This is admittedly a fairly close question, made more difficult by the fact that the term "unseemly conduct," which is not defined in the Rule, has a kind of "I know it when I see it" quality. In view of the Rule's elasticity, it would be possible without straining to label De Palo's inappropriate behavior "unseemly." The word "unseemly," however, usually suggests inappropriateness manifesting indecency, bad taste, or poor form (e.g. a crude joke in mixed company), and while De Palo's conduct displayed a little of each, it was a lot more sophomoric than indecorous——a silly, rather than unseemly, prank. Thus, it is concluded, De Palo acted inappropriately but not in violation of School Board Rule 6Gx13-4A-1.21. Violence in the Workplace In Count I of its Notice of Specific Charges, the School Board accused De Palo of violating School Board Rule 6Gx13-4-1.08, which (apparently) provides in pertinent part: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. (Emphasis added.) The School Board neither alleged nor proved that De Palo engaged in "threats" or "threatening behavior." The questions at hand, therefore, are: (a) whether De Palo committed an act of violence against Ms. Hudson; and, if so, (b) whether the act was "so serious as to impair [De Palo's] effectiveness in the school system." Cf. Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. In support of its case, the School Board asserts (correctly, as far as it goes) that School Board Rule 6Gx13-4- 1.08 encompasses acts that constitute battery under the criminal law and tort law. From this premise, the School Board turns to statutes and cases dealing with battery, a wrong of which the essence is the intentional touching of another person against such person's will. As the School Board then points out, it is often not necessary, in making out a battery case, to prove that the offensive contact was actually harmful or even intended to cause harm. Thus, the School Board concludes, De Palo violated School Board Rule 6Gx13-4-1.08 because he intentionally touched Ms. Hudson against her will. The flaw in the School Board's logic is its casual equation of "acts of violence" (which the Rule proscribes) with "battery" (which the Rule does not mention). The fact is, although the two categories of misbehavior overlap to some extent, they are not synonymous. And significantly, of the two, "battery" is the broader, more inclusive class. The term "violence" is commonly understood to mean an "[u]njust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage, or fury." Black's Law Dictionary 1408 (5th ed. 1979). A battery——that is, an offensive or nonconsensual touching——can be committed with or without violence.11 Thus, while all or most acts of violence by one person against another constitute battery,12 all forms of battery clearly do not entail acts of violence.13 In this case, the evidence does not persuade the undersigned that De Palo committed an act of violence.14 De Palo, therefore, is not guilty of violating School Board Rule 6Gx13-4-1.08. IV. To terminate De Palo's employment, the School Board needed to show that his conduct not only violated a specific rule, but also that the violation was so serious as to impair his effectiveness in the school system. Although the School Board's failure to prove that De Palo violated a specific rule is reason enough to recommend against termination, the issue of resulting ineffectiveness will be discussed anyway, providing an alternative basis for decision. There was little, if any, direct evidence that De Palo's effectiveness in the school system was impaired as a result of the incident of January 23, 2003. On this issue, therefore, the Board must rely on inferences in aid of its proof. For the School Board to profit from an inference of resulting ineffectiveness, it must establish two things: (1) that the violation was not of a private immoral nature, and (2) that, on the basis of past experience as drawn from the fund of common knowledge, the violation would not, in the ordinary course of events, have failed to impair the individual's effectiveness in the school system. See Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *19 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. The allegations against De Palo do not involve misconduct of a private immoral nature, so the first condition is satisfied. The undersigned is not persuaded, however, that De Palo's carrying of Ms. Hudson back to her office could not have happened without impairing De Palo's effectiveness in the school system. Rather, taking into consideration all of the evidence in this case, it is determined that De Palo continued to be effective, notwithstanding the incident of January 23, 2003. Thus, while an inference of resulting ineffectiveness might be legally permissible under the circumstances of this case, such an inference is not factually justified and hence has not been drawn. Ultimately, therefore, the School Board failed to prove that De Palo's effectiveness in the school system was impaired by his conduct. For that independent reason, he must be found not guilty of the charges brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating De Palo of all charges brought against him in this proceeding; (b) providing that De Palo be immediately reinstated to the position from which he was suspended without pay; and (c) awarding De Palo back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2004.
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
