Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
The Issue 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 to be determined is whether Respondent violated School Board Policies 3210 (and, when referenced, corresponding Florida Administrative Code rules), 6610, and/or 6152, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner, Brevard County School Board ("School Board" or "Petitioner"), is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. Beginning in 2009, Respondent, James B. Wilkins ("Wilkins" or "Respondent"), was employed by Petitioner as the band director at Heritage High School. In 2012, Wilkins held a Professional Services Contract. Wilkins has over 30 years' experience working with bands in Florida and North Carolina. He previously taught in Duval and Orange counties, and his personnel files were reviewed and references checked when he was considered for the position at Heritage High School. Petitioner and Brevard Federation of Teachers, Local 2098, are parties to a collective bargaining agreement ("CBA"). Among its terms, the CBA requires just cause for dismissal. Wilkins previously worked for the Orange County School Board, and during his employment, received letters of reprimand in November 2000 (inappropriate physical force and corporal punishment with students and failure to adequately supervise students under his control), April 2004 (shouting match with a student and use of profanity), April 2004 (grabbing a student by the arm and use of profanity), November 2007, and February 2008. During the hearing, Wilkins testified he could not recall the incidents at Orange County Public Schools where he was accused of the use of profanity with students and inappropriate physical force. Wilkins was also previously employed by the Duval County School Board, where he received a letter of reprimand in November 1994 for his use of profanity. Wilkins also received an unsatisfactory rating on his 1995 evaluation for his use of profanity on several occasions despite warnings, and for failure to follow policies or financial procedures. As the band director at Heritage High School, Wilkins taught classes and was also responsible for the extracurricular activities of the band, including marching band and orchestra. Wilkins was also responsible for following the School Board's rules regarding the finances of the band program, as well as the supervising and disciplining of students. Fall 2012 John Tuttle was principal of Heritage High School from its opening in 2009 until October 2012. Tuttle hired Wilkins for the position of band director because he was the best applicant. He knew at the time he hired Wilkins that Wilkins was a strict disciplinarian. Wilkins' organization of the band taught the students responsibility and discipline. Tuttle wanted a band that would showcase the band and its community until the athletic programs could develop. By 2012, the band had been very successful and received many accolades. Tuttle's evaluations of Wilkins each year rated Wilkins "Effective" in each category, the highest rating possible. Wilkins built a strong booster organization for the band that assisted with student financial obligations. Further, Tuttle recognized that Wilkins had established the Heritage Band "as our showcase program." He also noted that Wilkins wrote the "drill music and dance routines" for the band. When Wilkins interviewed for the position, Tuttle asked him what he would like, if he got the job. Wilkins told Tuttle that he would like someone to have the responsibility for money. Tuttle worked previously with Ms. Teressa Torsiello, a parent, when he was principal at Bayside. When Torsiello asked permission for her daughter to attend Heritage, Tuttle gave her the impression that he would approve the transfer only if she would organize the football program and help set up other fund- raising activities at Heritage, including the band. Torsiello knew district financial rules, and Tuttle trusted her. Torsiello soon became the president of the Band Parents Association at Heritage. There was no assistance in how to organize the various parent programs from school district personnel. Torsiello assisted several organizations at Heritage in setting up their programs, including the football program and the band. The Band Parents Association had a constitution and by-laws. Torsiello implemented an accounting program called Charms, which allowed the Band Parents Association to keep track of individual student financial accounts and other matters (such as medical needs and contact information), it could generate receipts, keep track of inventory and produce various reports (such as monthly and year-end financial reports). Parents could access their student's information on-line by using a password. The Band Parents Association met to approve expenditures (with proper receipts), and it used its monthly reports to check the school's internal account balance. The Band Parents Association maintained several accounts. These included: the school's internal account; an account at the Brevard Foundation; a bank account; and a petty cash fund. Every organization at every school Torsiello has ever been involved with has had its own petty cash fund, including the football program at Heritage. Tuttle recognized that he cannot control what the Band Parents Association does with its money– whether they donate to the school (through the internal account or the Foundation) or how they handle it. He can only control the money that comes through the band director and the bookkeeper. The Band Parents Association had to vote to donate money that it raised in order to place it in the school's internal account. Wilkins never handled money until Ms. Martin, the band parent treasurer resigned. He had emphatically stated that he did not want to handle money; he did not even have a password to the Charms accounting program. Although he might have to authorize purchases from the school's internal account or the Foundation account, he was not allowed to be the lone signer. Tuttle dealt with various complaints against Wilkins in the fall of 2012, which are outlined in the superintendent's letter of November 6, 2012, and discussed in the Preliminary Statement, above. Tuttle "felt like a group of parents were out to get him (Wilkins) and they were going to continue drumming up, pulling up things that happened in the past that may have already been dealt with until they did." Following the Palm Bay Police Department and Department of Children and Families investigation, in which the agencies found no violation to pursue, the media scrutiny started. After the media attention, "investigations" were taken away from Tuttle and handled by Ms. Debra Pace and Dr. Mark Mullins. Neither testified as to any complaints they were investigating. They went to Heritage to see what they could dig up. Due to the nature of some of the allegations in this proceeding, it is apparent that they were seeking one or more reasons to terminate Wilkins. Allegations In a letter dated November 6, 2012, the superintendent, Dr. Brian Binggeli, notified Wilkins of his intent to recommend his termination of employment to the School Board. Although the letter contained a number of allegations, most of those are not the subject of this proceeding following the ruling on the Respondent's Motion in Limine. The remaining issues are set forth below, under the appropriate section letter and title. Inappropriate Comments of a Sexual Nature to Students At paragraph 1, the superintendent alleges that Wilkins engaged in the following conduct: "You said to two students that a female member of the band played her woodwind instrument in a manner that looked like an act of oral sex (the exact language you used is too graphic to repeat in this public record)." Mistreatment of Students Paragraph 1 of this section concerns exercises performed by students and alleges that Wilkins engaged in the following conduct: You directed the student who is the "Sergeant at Arms" of the band to discipline students who you or your appointed student leaders in the band determined committed an infraction by taking the students to a separate room with no adult supervision to perform exercises utilized as punishment including push ups, sit ups, panther spreads, rocking chair, 6 inch killer, duck walks and the "Heritage Special". You admitted this practice and acknowledged that some students became upset (crying) because of the strenuous nature of the "punishment". You recently added the names of two female students to the discipline list because you stated they were not wearing sports bras. You readily admitted that you did not monitor the discipline list for fairness or consistency, and you kept no permanent record of who was disciplined or the level of intensity of the discipline sessions. Paragraph 2 of this section concerns bathroom use and water breaks and alleges that Wilkins engaged in the following conduct: You also denied students access to bathrooms and water during various band practices and events. On one occasion during the Extreme Makeover event in Titusville last school year a female student who was not allowed to use the bathroom at a McDonalds [sic] wet herself and was humiliated in front of her peers. Students interviewed indicated that the water breaks were regularly permitted after 45-50 minutes of strenuous physical activity at practices and performances. If someone was about to "pass out," you would allow them a drink of water. The restrictions you placed on student's [sic] access to water and bathrooms subjected them to the potential of physical harm. . . . G. Mishandling of Funds The superintendent alleges that Wilkins engaged in the following conduct relating to the handling of funds: You have violated School Board Policy 6610 and School Board Policy 6152 by maintaining two separate accounts for school based funds. One account was utilized for deposit of checks and was properly operated as a school based internal account. You improperly maintained a separate, unauthorized cash box in which cash collections from band students for band fees and other charges were kept with a separate receipt book. The cash collections were maintained by a single parent, and there was no governance by a Band Booster Board or official parent officer group over expenditures of the funds, other than your direction. When questioned about this separate account on October 16, 2012, you first denied knowledge of its existence. You then denied handling any money. You said that you had forgotten about the money box and the funds contained therein until earlier that morning, when you turned the money box over to the school bookkeeper. You then denied having any knowledge of how much money was in the cash box when you turned it in to the bookkeeper. You also denied several times any knowledge of a second receipt book, separate from the official district-issued receipt book used for the band's internal account. You later admitted the use of two separate receipt books, one for the internal account and a separate one for cash receipts. You also later admitted that you independently authorized the use of $50.00 for a cash prize at the September parent meeting. Then you were shown the cash register receipt which you said the former Band Treasurer signed when she turned the cash box over to you, but you were unable to explain the negative difference between the amount turned over to you by the former Band Treasurer, $800.35, and the amount you turned in to the bookkeeper earlier that day, $680.00. You were both evasive and dishonest about the lack of proper receipts for deposits and expenditures, and the shortage of cash versus receipts when the monies were turned in. You finally admitted that the cash was regularly spent in any manner you deemed necessary with no accountability. At the end of the October 16 interview your briefcase was examined and a clear plastic document holder with additional receipts and cash, $21.00, was found. When questioned[,] you claimed that was some money and receipts you also intended to turn in. District leadership later learned that you previously paid yourself a salary above and beyond the salary and supplement you have regularly received as the Band Director at Heritage High, out of the cash box, for summer band camp: $2,250 in 2011 and $3,000 in 2012. A review of cash fund collected, according to the receipt book, indicates that $4,551.00 was collected between July 16, 2012, and September 7, 2012. Receipts turned in show expenditures at B.J.'s, Sam's, Winn Dixie, etc, total $3225.27, leaving a difference of $1,325.73. With $680 submitted to the Heritage bookkeeper on 10/16, and an addition $21.00 recovered from your briefcase, at least $621.73 [sic] is unaccounted for. Additional Charge By letter dated May 3, 2013, the superintendent notified Wilkins of the additional grounds that involved B.O., a female student, for his termination. The Additional Charge was never presented to Petitioner for its consideration. Basis for Termination At page 4 of the November 6, 2012, termination letter, the superintendent sets forth the legal basis for terminating Wilkins' employment. That basis is set forth, below: Your actions as described in paragraphs A, B, C, D, E, and F above violate the Brevard Public School Code of Ethics, Policy 3210, and The Code of Ethics And The Principles of Professional Conduct of the Education Profession in Florida by failing to protect the students from conditions harmful to learning. You have jeopardized the students' mental and physical health and safety, by intentionally exposing students to unnecessary embarrassment or disparagement. These actions constitute misconduct in office and conduct unbecoming an instructional employee. (emphasis added). Your actions as described in paragraph G. are a violation of School Board Policy and rules of Heritage High School regarding the collection and expenditure of funds and further constitute misconduct in office. (emphasis added). These actions as described above provide just cause to terminate your employment as a teacher and cancel your Professional Service Contract under Section 1012.36(6)(a), Fla. Stat. Pursuant to the Collective Bargaining Agreement between the Brevard County School Board and the Brevard Federation of Teachers, you have a right to request a meeting with me to discuss my recommendation to terminate your employment. To request a meeting you must advise me in writing within five (5) days after receipt of this letter. If you wish to contest these charges you have the right to request a hearing. To request a hearing you must submit a written request to my office within fifteen (15) days after receipt of this letter. The Additional Charge fails to cite to corresponding provisions of the Florida Administrative Code or state the misconduct in office charge. Inappropriate Comments of a Sexual Nature to Students At section A, paragraph 1 of the termination letter, the superintendent alleged that Wilkins made graphic reference to "oral sex" to two students concerning the way a female student was playing her woodwind instrument. Petitioner neither alleged, nor offered proof at hearing, that the student about whom the alleged comment was made heard the comment. The Letter of Reprimand issued to Wilkins in September 2012 by Tuttle dealt with comments of a sexual nature. Petitioner contends that the alleged comment concerning "oral sex" was not known by district personnel until October 15, 2012, when Pace and Mullins began interviewing students. As such, it is an enhanced allegation that may be considered in this proceeding for disciplinary purposes. Those present at the time Wilkins is alleged to have made the offending comment in August or September 2012 were Wilkins; T.S., a male student; and H.J., a female student. T.S. first testified that Wilkins said, "It looks like she is doing something inappropriate." H.J. agreed and stated that Wilkins made no reference to "oral sex." H.J. merely took Wilkins' comment to mean that the student was playing the instrument wrong in that the mouthpiece was inserted too deeply into her mouth which could lead to injury if the band member fell while marching. Further, H.J. was not offended by Wilkins' comment that the student was playing the instrument inappropriately. However, H.J. did feel that her words were being twisted by Pace and Mullins. Upon further probing by Petitioner's counsel, T.S. testified that he had written in his statement that Wilkins said that it looked like the student was "sucking dick," because of the way the student held the mouthpiece in her mouth. T.S. admitted that he was frustrated by Pace and Mullins, because they badgered him about making a statement. When asked by Respondent's counsel whether the words "sucking dick" were his, T.S. stated, "that's what they (Pace and Mullins) told me." Whatever Wilkins said, T.S. was not offended by the comment. Wilkins denies making any statement to T.S. or H.J. about oral sex. He testified that he wanted T.S. and H.J. to "fix her playing position because it looks inappropriate." One of Wilkins' concerns was that if the student tripped with the mouthpiece in that position, she could injure herself. Based on the testimony of the witnesses, the evidence does not support the assertion that Wilkins made a sexual reference concerning the woodwind player. Mistreatment of Students Exercises At section B, paragraph 1 of the termination letter, the superintendent made several allegations against Wilkins concerning the use of exercises as a consequence for rule infractions, including when students fail to dress properly (sports bra). Other bands in the district such as Palm Bay High, Melbourne High, and Cocoa High, and other organizations at Heritage, such as cheerleaders, use exercises for this purpose and place officers in a position of responsibility over their members. As noted in the Preliminary Statement above, Tuttle previously dealt with issues concerning these exercises when he dealt with earlier complaints. Petitioner, however, contends that the issue of adult supervision of these exercises was not raised until J.V.Z., the sergeant-at-arms, was interviewed by Pace and Mullins in mid- October 2012 and thus the allegation may now be a matter for further discipline. There is no allegation that any student was ever injured performing these exercises. The issue of adult supervision of these exercises was in fact raised by D.S., a band parent, in her complaint to Tuttle. Tuttle dealt with D.S.'s complaint with Wilkins on October 1 and a Summary of Conference was issued on October 3, 2012. Various students and Wilkins testified as to the process and practice of using exercises as a consequence for rule infractions. Petitioner charged Wilkins with failure to supervise these exercises, because the exercises were conducted in a separate room. However, all the rooms in the band area have windows from ceiling to "door knob." Wilkins maintains that he always had a direct line of sight as to what was going on in the area where the exercises were conducted. The students who testified on this issue agreed that Wilkins always had a line of sight view of the officers supervising and the students performing the exercises. These students include J.V.Z., T.S., T.T., and S.O. Based on the testimony of the witnesses, the more credible evidence supports that there was adult supervision of this activity, as Wilkins always had a line of sight as to those performing the exercises and those supervising them. Bathrooms and Water The allegation at section B, paragraph 2 concerns student access to bathrooms and water. The general issue of student access to bathrooms and water was reviewed previously by Tuttle. There was no evidence that Wilkins denied any student access to a bathroom or water. However, with this allegation, Petitioner specifically charged Wilkins with denying a female student access to a bathroom causing her to wet herself on the bus ride home from the Extreme Makeover Event in 2010. Pace now acknowledges that S.O. is the student at issue. Petitioner made this allegation without confirming the name of the student, S.O., who was allegedly the one who wet herself. Even when S.O. provided district officials, including Pace, with a written statement contradicting the allegation prior to Petitioner's vote on the superintendent's recommendation to terminate Wilkins, the superintendent went forward with this unsubstantiated charge. S.O. testified that no one from the school district ever talked to her about the allegation. S.O. stated that she did not realize she had to use the restroom until after the bus was underway. However, she did not wet herself on the bus. Wilkins was not on the same bus as S.O. and never knew about S.O.'s need to use the restroom until he received the termination letter. Petitioner offered no testimony to contradict S.O.'s testimony at hearing. Based on the evidence presented, this allegation is unsupported in its entirety. Further, the allegation was based merely on rumor, and the District failed to follow-up when S.O. came forward. It is unclear why this allegation was even pursued in light of S.O.'s statements made prior to and the testimony of other witnesses at the hearing. Wilkins did not deny S.O. access to a bathroom causing her to wet herself. Mishandling of Funds A major focus of this hearing concerned Petitioner's allegations at section G of the November 6, 2012, termination letter. At this section, Petitioner alleges Wilkins mishandled funds in violation of School Board Policy 6610, relating to internal funds, and 6152, relating to student fees, fines, and charges. However, in order to understand how these rules apply in the instant matter, it is necessary to review several sections of the Internal Funds Procedure Manual referenced at School Board Policy 6610A, as well as School Board policies related to student and outside organizations. Internal v. External Funds Internal Accounts Procedure Manual In general, the Internal Funds Procedure Manual (referred to herein as the "Manual") outlines how "internal funds" are to be handled at the school level. Additionally, the Manual distinguishes between the handling of "internal funds" as opposed to "external funds." Internal Funds Defined Internal funds are defined in the Manual as follows: Internal Funds are defined as all monies collected and disbursed by school personnel within a school, for the benefit of the school, or a school sponsored activity. Funds relating to all school-sponsored functions or activities are to be accounted for within Internal Funds. (emphasis added). Internal Funds . . . are considered unbudgeted public funds under the control and supervision of the District School Board. All funds handled by District employees shall be included in and become part of Internal Funds, unless accounted for in the District level accounting system. . . . School Internal Funds shall be expanded [sic] for the purpose for which they were collected and in accordance with the provisions of this [M]anual. Florida Statutes, State Board Administrative Rules and the School Board of Brevard County Bylaws, Rules & Policies are the governing requirements and must be complied with by all and, in case of conflict, will take precedence over this [M]anual. (emphasis added). External Funds Defined No School Board policy mentions "external funds"; therefore, there is no conflict with any School Board policy as to how those funds are addressed in the Manual. External funds are defined in the Manual as follows: The monies arising from activities or projects conducted or sponsored by outside organizations, or for which such organizations are exclusively responsible, are monies of the organization and are not school monies, even though the activities may be held on school premises. These monies are not subject to deposit or accountability as school monies; such funds are not internal funds, unless they are donated to the school for specific or general purposes. (emphasis added). External funds may be raised by organizations under several different names, examples include "outside organization," "PTA," "parent or civic groups," or "booster parents." There is no differentiation in the School Board policy or the Manual as to how, or if, these groups differ in anything but name or whether they may be treated differently by the District or a school. For instance, there is no distinction between a "booster" organization and one that calls itself a "parent" organization. In particular, there is no requirement that an organization be a 501(c)(3) organization under the Internal Revenue Code. Often these groups are referred to in the Manual and in School Board policy as merely "outside," "parent," or "cooperative" organizations. Cooperative Organizations Cooperative organizations, under whatever name, are required to file annual reports with the school. "All organizations operating in the name of the school, which obtain monies from the public, shall be accountable to the District for receipt and expenditure of those funds, in the manner prescribed by the District." Section H(1) of the Manual states that "the District prefers that the cooperative (or support) organizations be accounted for in the benefitting school's internal funds." The Manual also recognizes, "if the cooperative organization chooses not to be accounted for in the school's internal funds, the organization is required to provide (annual) information to the District as outline below." (emphasis added). If an organization chooses not to account for all its funds in a school's internal account, there is no restriction in any School Board policy, the Florida Manual (discussed below), or the Internal Funds Procedure Manual on how that organization "holds" its funds, as opposed to accounting for them. For example, the cooperative organization may have its own bank accounts-–checking, savings, money market, etc. It may hold some funds in cash to use as a change or a petty cash fund. Or, it may place the funds with the Brevard Schools Foundation or in the school's internal fund. Section H of the Manual provides examples of types of cooperative organizations and requires an annual report from each that must be provided to the school (principal) by August 31 each year. A sample form is provided at A20 of the Manual. Information required includes financial information on all accounts, total funds raised, itemized expenditures, and total expenditures. Section H(4) of the Manual states that the "District recognizes and appreciates the service and assistance provided by the organizations. Cooperation between schools, the District, and cooperative organizations is encouraged." Further, section H(5) of the Manual provides that "it is not the intent of the District to regulate these organizations. However, completing the Cooperative Organization Annual Report complies with the requirement that these organizations are accountable to the District for receipts and expenditures since they operate in the name of the school." (emphasis supplied) These organizations must operate according to School Board Policies 9210 and 9211, relating to "Parent Organizations" and "Parent Organizations, Booster Clubs, and Other Fund-Raising Activities," respectively. Cooperative organizations are required to keep an itemized account of monies collected and expended verified by two signatures. This section also provides that an organization may not have cash withdrawals unless approved by the principal; however, reading section H as a whole, this would only apply to funds held in the internal account of the school over which the principal has responsibility, as it is not the intent of the District to regulate these organizations, if they choose not to be accounted for in the school's internal fund. In other words, the District recognizes that neither it, nor its employees, regulate cooperative organizations and that these organizations may have external funds. Section H(13) of the Manual specifically provides that cooperative organizations do not have to use the internal account, that the District does not intend to regulate these organizations, and that the principal would not have control over outside accounts, such as those at the Foundation, in a bank, or held in cash. The cooperative organization must retain backup documentation for each bank transaction. Again, it is contemplated that these organizations may have outside accounts, and there is no restriction on what type of account they may have or how they otherwise choose to hold their funds. Principals are required to have on file, for each cooperative organization, its bylaws, corporate charter, the Cooperative Organization Annual Report form, and Internal Revenue Tax Exemption Status Determination, if any, as there is no requirement for an organization to get a determination letter from the IRS. Section H(2) of the Manual merely indicates that these organizations "may" be recognized as exempt from income taxes by the IRS. Participation by Employees Neither School Board policy nor the Manual prohibits employees from handling funds. However, if a School Board employee, in his or her capacity as an employee, is involved in the collection of monies or merchandise for resale, the funds are defined as internal funds. For example, a teacher collecting money from students for a school-sponsored field trip would be required to deposit the funds into the internal account. Activities in which outside or cooperative organizations may engage do not preclude participation of a District employee, if the employee is not an agent or is not in pursuit of his or her responsibilities for the District. For instance, a teacher may work a concession stand at a football game as a member of the Parent Drama Organization, and the funds would remain those of the organization until the organization decided to donate them to the school's internal fund for the Drama Club, because the School Board employee is not working at the concession stand in his or her capacity as a School Board employee. The employee is working the concession stand as a member of the Parent Drama Organization--membership in which is encouraged by School Board policy. Financial and Program Cost Accounting and Reporting for Florida Schools Manual ("The Florida Schools Manual") The Florida Schools Manual provided by the Florida Department of Education addresses cooperative activities. These activities are defined as those "in which the school participates with outside groups such as the P.T.A. or booster clubs." These activities, which may be held on or off campus, will usually take the form of fund-raising events, such as carnivals and food sales. The Florida Schools Manual requires that the activities be approved by the principal and be beneficial to the students. Further, the manual requires that District procedures be followed to provide for appropriate accounting for funds and compliance with District policies and those provided in the Florida Schools Manual. Other than this paragraph, the Florida Schools Manual does not address "external funds" at all. School Board Policies Policy 6610 - Internal Accounts School Board Policy 6610 provides for the collection, receipt, safekeeping, and disbursement of funds to and from a school internal account. It specifically provides that wages or supplements may not be paid to any employee from internal funds, except as provided by the School Board. Fundraising by student organizations is addressed at section E of the policy. Funds received by a parent-teacher group or other cooperative organization are external funds, unless donated to the school. Therefore, this rule recognizes that when receiving funds from students at school, a parent-teacher group must provide a parent member, rather than a student or School Board employee, to receive the funds. Otherwise, if a parent-teacher group (outside or cooperative organization) uses a student or employee for the collection of funds at school, the funds must be deposited into the school's internal account. Depending on whether funds below $200 can be adequately safeguarded, bank deposits are required to be made within three to five business days of receipt by a school's internal fund. Policy 6152 - Students Fees, Fines, and Charges Depending on whether funds below $100 can be adequately safeguarded, this policy provides that student fees, fines, and charges collected by members of the staff are to be turned into the bookkeeper (for deposit into the internal account) within one to three business days of receipt. These charges include the cost of loss or repair to damaged equipment. The only other fees associated with the band program and authorized by the School Board are for uniform and instrument rental. Policy 5830 - Student Fund-Raising School Board Policy 5830 defines "student fund-raising" as student solicitation and collection of money in exchange for tickets, papers, or goods or services. This policy applies only to student organizations granted permission to solicit funds. Specifically not included in this definition is when a parent or other member of an outside organization collects the funds, even if students are doing something in exchange, such as a car wash. Further, this rule does not reference parent or other cooperative organizations supporting school or student activities; although it does reference the support schools can provide other community organizations, through activities such as a canned food drive. Policy 9210 - Parent Organizations School Board Policy 9210 states in pertinent part, that "The Board supports all organizations of parents whose objects are to promote the educational experiences of District students." (emphasis added). This policy requires that the principal approve any new parent organization prior to organizing. The policy also requires District employees to treat members of these organizations as interested friends and supporters of public education. The policy encourages staff members to join these organizations. Finally, School Board Policy 9210 provides that the School Board may withdraw its recognition of the organization. Policy 9211 - Parent Organizations, Booster Clubs, and Other Fund-Raising Activities Through this policy the School Board expresses its appreciation to these organizations, whose efforts enhance the educational experience of District students and which are not provided for by the School Board. School Board Policy 9211 outlines the expectations of the School Board for parent organizations, booster clubs, and other fund-raising activities. The expectations include: open membership to District staff and community members; cooperate with the principal and abide by School Board policies. These organizations are required to provide their by-laws to the principal. These organizations may not donate to another organization from their funds, unless the money was raised for that purpose (for instance, sponsoring a team in the Relay for Life Walk). School Board Policy 9211 requires that these organizations complete a facility use agreement annually. They are required to provide goals annually to the principal (part of the Cooperative Organization Annual Report). The principal (or a designee) is required to approve fund-raising activities. However, employees of the District are not permitted to sign on any group's checking account. And, these organizations may not use the District's sales tax exemption number. Policy 9230 - Gifts, Grants, and Bequests School Board Policy 9230 recognizes the Brevard Schools Foundation (the "Foundation") as the District's sole non-profit organization established to receive and disburse contributions to the schools. The policy states that all donations over $250 should be funneled through the Foundation, so that charitable tax documentation can be supplied to the donor. The policy recognizes that equipment may be purchased by a parent organization for use in a school or at an event. Although this policy does not address a school's internal account, it does not prohibit donations directly to the internal account from an outside organization. Summary Internal funds are those collected by students or District staff in the performance of the duties for the School Board. External funds are those funds raised or collected by the members of a cooperative organization. The funds are neither handled by students nor by District staff in the performance of their duties. While some of these funds may have to be remitted to the internal account for specific purposes, such as instrument or uniform rental in the case of a band, the cooperative organization can hold the remainder of the funds in any manner it deems appropriate. These funds may not be deposited into the internal account until the cooperative organization approves the donation. Section G Allegations The allegations at Section G may be broken down into several categories: collection, receipt, holding, and disbursement of funds; door prizes; payment for writing music and preparation of marching drills; and missing money. The Collection, Receipt, Holding, and Disbursement of Funds Petitioner alleges that Wilkins maintained two separate accounts for school-based funds. One Petitioner alleged was properly maintained as a school-based account, and the other was a separate unauthorized cash-based account with a separate receipt book. Therefore, Petitioner alleges Wilkins violated School Policies 6610 and 6152. As outlined below, Petitioner is mistaken. Pace was the primary witness for Petitioner on issues concerning the handling of funds. Pace based many of her conclusions about whether the Band Parents Association could maintain outside accounts on what Tuttle told her and her understanding of "booster" organizations. Tuttle testified that the Band Parents Association was no longer a "booster" organization; however, he recognized that he cannot control what the Band Parents Association does with its money-–whether the Association donates the funds to the school's internal fund or keeps it in external accounts. He can only control the money that "comes through my director and my bookkeeper." There is no distinction in School Board policy or in the Manual that a cooperative organization that has the word "booster" in its name is any different from a cooperative organization that does not. Therefore, Pace's conclusion that the Band Parents Association could not maintain outside accounts, including a petty cash fund, is incorrect. Even before organizational changes, the Band Parents Association at Heritage never used the word "booster" in its name. It complied with all the requirements in the Manual relating to cooperative organizations, as well as School Board policies relating to parent organizations. It obtained recognition from Tuttle and provided him with its by-laws. It obtained permission for all fund-raising activities. It maintained various accounts with the Foundation and at one time had its own bank account as well as a change and petty cash fund. Members of the Band Parents Association raised funds from fund- raising events, as well as handled money from students. The Band Parents Association issued monthly financial statements and filed the required Cooperative Organization Annual Report. Although Tuttle acknowledged that he cannot control what the Band Parents Association or other cooperative organization does with their money, Pace understands the interplay among the various adopted School Board policies and the Manual. She does not, however, understand the difference between "internal funds" and "external funds." As such, Pace does not have an appreciation for the District's policy articulated in the Manual that the District, including its personnel, cannot tell cooperative organizations, such as the Band Parents Association, how to handle their money. While it is true that School Board policy requires a cooperative organization to obtain a principal's permission to organize, once that permission is granted the principal may not "regulate" the organization beyond the authority set forth in School Board policy and the Manual, such as obtaining permission prior to holding a fund-raiser. There is no authority for a principal to require a cooperative organization to place all its funds in a school's internal account. To the contrary, the Manual recognizes that cooperative organizations, by whatever name they choose to use, may maintain outside accounts as long as the Cooperative Organization Annual Report is filed. Further, there is no requirement in School Board policy or the Manual that in order to maintain outside accounts an organization must receive a determination letter from the IRS. For these reasons, two receipts books are not only permitted, but required under School Board policy and the Manual. For audit purposes, the official receipt book may only be used for monies deposited into the internal account. Because of the other various accounts maintained by the Band Parents Association (Foundation, bank, and cash) and because of the requirement that any cooperative organization that does not use the internal account for all its funds must maintain proper records, a second receipt book was necessary. The various Band Parent Association accounts and the band's school internal account were always managed by the Band Parents Association, not by Wilkins. Until Ms. Martin resigned as treasurer of the Band Parents Association, Wilkins never handled money. The money he collected from students after Ms. Martin resigned, Wilkins properly receipted by using the official receipt book for the school's internal account. Based on the testimony and the exhibits entered into evidence, neither Wilkins nor the Band Parents Association did anything improper concerning the collection, receipt, holding, and disbursement of funds. Petitioner has failed to prove the allegations relating to these issues. Cash Box Petitioner alleges that Wilkins, rather than the Band Parents Association, maintained an unauthorized cash account maintained by a band parent for use at his sole discretion without any oversight by a booster or other parent group. Petitioner is mistaken. Tuttle received an anonymous letter in September concerning a cash box maintained somewhere with the "band." Even though he believed that the band and the Band Parents Association could not maintain outside accounts, he decided to wait until things calm down with other allegations against Wilkins before dealing with this issue. The Band Parents Association maintained its records online for use by students and parents. Further, the Band Parents Association provided monthly reports of expenditures and all its accounts, including the cash account, to parents and made those reports available to Tuttle, Ms. Lucas and Mr. McGrew (Mr. McGrew, Athletic Director, was the principal's designee for the Band Parents Association and other cooperative organizations). None of these District employees was interested in receiving these monthly reports. The monthly reports were kept in the band room at McGrew's request. Further, the Cooperative Organization Annual Report that the Band Parents Association filed with the school specified the funds in each account (internal fund, bank account, Foundation account, and cash). The Band Parents Association's ability to maintain a petty cash fund pursuant to School Board policy and the Manual is addressed above. Petitioner provided no evidence that this fund was used at Wilkins "sole discretion." Torsiello, Martin, and Wilkins testified as to the use of these monies by Wilkins and others. Wilkins, who had no physical possession of the funds until Ms. Martin resigned, always had to make a request for the use of these funds and other Band Parent Association funds (such as monies in the Foundation account). Wilkins' request for funds was not always granted; however, if it was, he was required to provide proper documentation in the form of an invoice or receipt just like everyone else. There was no question raised in this proceeding that the money in the cash fund was raised by the Band Parents Association for the benefit of the band. When Wilkins received the money from Ms. Martin, he locked it up. Although it is not clear when he got it, he eventually turned it in to the bookkeeper, Ms. Lucas. Whether he should have turned the money over to her or not, is still in question, because there was no vote by the Band Parents Association to donate that money to the internal fund, merely a direction by Ms. Martin to Wilkins. Moreover, it appears that the $680 he turned over to Ms. Lucas has not been available for use by the band since Wilkins turned it in. Ms. Lucas testified that almost eight months after Wilkins turned in the money, the $680 was still in the school's safe. She was still waiting for instructions on what to do with it. Ms. Lucas' actions are contrary to the requirement that all funds over $200 be deposited within three days in a financial institution. As of the date of her testimony, the band still did not have use of these funds for any purpose. Based on the testimony and the evidence in this proceeding, Petitioner proved that Wilkins did not turn in the money within the time prescribed by School Board policy; however, Petitioner failed to establish that that provision applies as Wilkins did not collect this money from students and, further, the money was not "donated" by the Band Parents Association as required by the Manual. Petitioner also failed to establish that the money in the cash box was for use by Wilkins at his "sole" discretion and without oversight from the Band Parents Association. Therefore, Petitioner has failed to prove that Wilkins did anything in violation of School Board Policy 6610 and 6152 concerning the cash box. Door Prizes Petitioner alleges that Wilkins independently authorized a $50 door prize from the Band Parents Association cash box. Petitioner is mistaken. The Band Parents Association, not Wilkins, authorized door prizes for every band parent meeting in order to increase participation. After the first year, parent attendance and participation at these meetings (where fundraisers for the band were organized) fell off. Even though the students were in attendance, their parents would sit in the car in the parking lot during the meetings. After the door prizes were authorized, parent participation increased from a dozen or so to over 100 at each meeting, as did parent participation at other events, including fund-raising activities and chaperoning trips. Based on the testimony of the witnesses, Petitioner has not proven that Wilkins, rather than the Band Parents Association, independently authorized any door prize. Payment for Writing Music and Preparation of Marching Drills Petitioner alleges that Wilkins paid himself "a salary above and beyond the salary and supplement you have regularly received as the Band Director at Heritage High School, out of the cash box, for summer band camp: $2,250 in 2011 and $3,000 in 2012." Torsiello and Wilkins testified that the payments were not for holding a band camp, but for writing music and preparing marching drills for the band to perform during football season. Although the payment was based on student attendance during band camp, it was not later increased when more students signed up for band following band camp and, consequently, adjustments had to be made to the music and drills. Tuttle testified that band directors are not paid for writing music or preparing marching drills. He acknowledged that other bands pay substantial fees for this service. He believed that Wilkins should have performed this service gratis since he possessed the special skills necessary to write and choreograph the band's music. He also testified, however, that he had no problem with Wilkins performing this service and being paid to do it by the Band Parents Association, so long as the school did not have to cover the fees. Although Tuttle stated that he did not know of the arrangement between the Band Parents Association and Wilkins, Torsiello testified that she discussed and exchanged email on this issue with Tuttle prior to the Band Parents Association entering into the agreement with Wilkins for the school's second year. Wilkins thought Tuttle was aware that the Band Parents Association paid him for this service, in part due to Tuttle's acknowledgment in his evaluation that he knew Wilkins was writing the shows, something that is not part of the duties for his position with the School Board, thus saving the school or the Band Parents Association money. Torsiello testified that she solicited bids and researched providers on the internet, but that Wilkins had the best price. The Band Parents Association approved payment to Wilkins to write the music and prepare the drill plans each year. Pace testified that she thought this practice was unethical, because of Wilkins position. However, Petitioner did not allege an ethics violation (i.e. self dealing) as it relates to Section G of the termination letter. Based on the testimony and the evidence presented, Petitioner has failed to prove that writing music and preparing marching drills was part of Wilkins official duties. As such, Petitioner failed to prove that the Band Parents Association paying Wilkins for this service violated School Board Policies 6610 and 6152, the only policies cited by Petitioner relating to these allegations. Missing Money Petitioner alleged that Wilkins was unable to explain the $120.35 shortage of funds from the cash box turned over to him by Ms. Martin, and the amount Wilkins turned in to Ms. Lucas, the school bookkeeper. Further, Petitioner alleged that after a review of the records, "at least $621.73 (of other funds) is unaccounted for." At hearing, Pace acknowledged that Wilkins did not steal any money. While Petitioner never attempted to present any evidence about the $621.73 that was "unaccounted for," there was testimony concerning the $120.35. Of that amount: $50 went to the door prize discussed above; $20 was used by the Band Parents Association for change for a car wash fund-raiser; $50 was used by the Band Parents Association for change for a rummage sale fund-raiser; and $.35 was found on Wilkins' desk. Based on the testimony of witnesses, Petitioner has failed to prove any Band Parents Association money or any other (internal account) money was stolen by Wilkins or otherwise unaccounted for. Wilkins' Demeanor Although Petitioner did not charge Wilkins with failure to maintain honesty in professional dealings under School Board Policy 3210, Petitioner accuses Wilkins of making contradictory statements and being evasive and less than truthful concerning money issues throughout section G. Based on his testimony at hearing and that of other witnesses, in particular Torsiello, Wilkins simply did not know how the funding system was put in place by the Band Parents Association, because he never handled money. The Band Parents Association did not even give him a password to access the computerized records, because it would have required giving him access as a site administrator and his knowledge of computers is limited. Further, Wilkins had a limited understanding of the various accounts and how they were used by the Band Parents Association. He, as well as Pace, Tuttle, and Lucas also had a limited understanding of the interplay between the various School Board policies relating to the various types of accounts and the Manual. In short, Wilkins did not know enough about the financial records to hold a meaningful conversation about money issues, and this lack of ability was confused by Petitioner with evasiveness. The May 3, 2013 Additional Charge B.O. stated that the events alleged in the Additional Charge occurred more than once and that they occurred prior to her initial complaint. Wilkins denied the allegations. In September 2012, B.O. told Tuttle and Mullins that Wilkins did not touch her. B.O. also told the Palm Bay Police Department that Wilkins did not touch her. On September 21, 2012, B.O. sent Ms. Andahar, a Department of Children and Families investigator, an e-mail in which B.O. stated that Wilkins did not touch or hug her. In an e-mail to Ms. Andahar from Ms. O., B.O.'s mother, dated October 9, 2012, Ms. O. informed Ms. Andahar that B.O. had told her "lately" that Wilkins has hugged her. Ms. Andahar forwarded the e-mail to Ms. Alford, head of security for the School District. However, testifying at hearing, B.O. does not remember telling her mother this. The School District never investigated the allegation. In an e-mail dated December 29, 2012, B.O. complained that no one would do anything about Wilkins, because he did not touch her. Based on the testimony of credible witnesses that "Mr. Wilkins is not a hugger," as well as B.O.'s admitted goal of facilitating Wilkins' termination, the evidence supports that Wilkins did not subject B.O. to the conduct alleged in the Additional Charge. Summary Following the initial complaint(s) in September 2012 and his response, Wilkins was placed on a Professional Development Assistance Plan (PDAP). Tuttle continued to receive complaints concerning matters that predated the PDAP after it was approved. He and Wilkins worked through those complaints which are documented in the two Summaries of Conference. Tuttle noted that Wilkins was implementing the changes contemplated by the PDAP and that he had received positive remarks from parents. However, "a group of parents were out to get him and they were going to continue drumming up, pulling things up . . . until they did." When the media "circus" started in October 2012, the "investigations" were taken away from Tuttle and assumed by Pace and Mullins. No complaints were produced on which these "investigations" were premised. From that point forward, the "investigations" were neither fair to Wilkins, nor were they based on fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Brevard County School Board, dismiss all charges against Respondent, James B. Wilkins. Further, it is RECOMMENDED that Petitioner, Brevard County School Board, reinstate Respondent, James B. Wilkins, with full back pay and benefits. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2013. COPIES FURNISHED: Wayne L. Helsby, Esquire Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Mark S. Levine, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Harold T. Bistline, Esquire Stromire, Bistline and Miniclier 1037 Pathfinder Way, Suite 150 Rockledge, Florida 32955 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 Dr. Brian T. Binggeli, Superintendent Brevard County School District 2700 Judge Fran Jamieson Way Viera, Florida 32940
The Issue The issues presented, as framed by the Fifth District’s December 16, 2020, Order are: (1) whether the School Board is entitled to appellate attorney’s fees pursuant to section 1002.33(8)(b), Florida Statutes; and (2) the amount of attorney’s fees to which the School Board is entitled.
Findings Of Fact The Underlying Matter (DOAH Case No. 19-6424) The underlying matter concerned whether Legacy’s school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in the School Board’s November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b). A detailed recounting of the underlying matter can be found in The School Board of Brevard County v. Legacy Academy Charter, Inc., DOAH Case No. 19-6424 (DOAH Aug. 18, 2020), which concluded that the School Board met its burden, by clear and convincing evidence, that it may terminate the Amended Charter. Attorneys’ Fees and Costs for Underlying Matter (DOAH Case No. 20-3911F) On August 28, 2020, the School Board filed a Motion for Attorneys’ Fees, Costs, and Sanctions, which was assigned DOAH Case No. 20-3911F. The undersigned conducted a final hearing in DOAH Case No. 20- 3911F on November 6, 2020. The School Board’s expert on attorneys’ fees at that hearing, Nicholas A. Shannin, Esquire, testified that the hourly rate of $200 for partners and associates at the School Board’s Orlando-based law firm of Garganese, Weiss, D’Agresta & Salzman, P.A. (GWDS), was “incredibly reasonable.” The undersigned held that the $200 hourly rate GWDS charged the School Board for its attorneys was reasonable, and ultimately ordered Legacy, pursuant to section 1002.33(8)(b), to pay the School Board a total of $312,147.80, broken down as follows: (a) $271,162.00 in attorneys’ fees; and (b) $40,985.80 in costs. See The School Bd. of Brevard Cty. v. Legacy Academy Charter, Inc., DOAH Case No 20-3911F (DOAH Dec. 4, 2020). Attorney’s Fees for Appeal (Case No. 5D20-1762) The School Board’s Affidavit of Attorneys’ Fees details the attorney’s fees that the School Board seeks in the appeal, and includes the detailed billing records of GWDS. This affidavit avers that the hourly rate actually billed by counsel was $200 for attorney Erin O’Leary, Esquire, who is Board Certified in Appellate Practice by The Florida Bar, and who handled the appeal. The affidavit further avers that Ms. O’Leary’s total number of hours billed in the appeal was 42.5 hours. Although GWDS attorney Debra Babb-Nutcher, Esquire, participated as counsel in the appeal, including supervising Ms. O’Leary and assisting in case strategy, preparation of documents, and communications with the School Board and opposing counsel, the School Board only seeks to recover the total amount of attorney’s fees charged by Ms. O’Leary. In DOAH Case No. 20-3911F, the undersigned found that the $200 hourly rate GWDS charged the School Board of its attorneys was reasonable, and the undersigned finds that a $200 hourly rate charged by Ms. O’Leary for representing the School Board on appeal is reasonable. The hours expended in this matter are reasonable given the time and labor required, the unique arguments raised by Legacy in attempting to stay the closure of its school, the lack of legal precedent, the multiple factual claims that required rebuttal, the short time frame in which to respond making other work impossible, the significant effort required to defend against the stay, as well as the ultimate success achieved in defeating Legacy’s attempted stay. The School Board has demonstrated that the attorney’s fees sought are reasonable based upon the reasonable rate charged and the reasonable hours expended in the appeal. Legacy has filed nothing to dispute the School Board’s request for appellate attorney’s fees. The Lodestar figure (i.e., the fees charged and hours expended) by Ms. O’Leary in this appeal is $8,500.00 for the work performed between August 19, 2020, through December 3, 2020. The undersigned finds that this Lodestar figure is reasonable in light of the factors enumerated in the Rules of Professional Conduct, found in Rule 4-1.5 of the Rules Regulating The Florida Bar, as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). The undersigned finds that the total fee amount of $8,500.00 for the appeal of the underlying matter, Case No. 5D20-1762, shall be recoverable by the School Board, as prescribed in section 1002.33(8)(b).2
The Issue The issues are whether the Department of Education’s (Department) decision to deny Petitioner’s application for capital outlay funding for the 2017-2018 school year is in conflict with Florida Administrative Code Rule 6A-2.0020(4)(b), as amended effective August 13, 2017, and is, therefore, based on an unadopted rule; and whether the Department’s decision to deny the application should be determined under the prior version of the rule.
Findings Of Fact Petitioner is a not-for-profit public charter school located in Ocoee, Florida, serving approximately 260 students in kindergarten through grade five. The school opened in the 2012-2013 school year, but did not receive a school grade until 2014-2015. That year, it received a grade of “B.” It received a grade of “D” in 2015-2016 and a “D” in 2016-2017. Since school year 2015-2016, Petitioner has been operating under a School Improvement Plan, approved and reviewed by its sponsoring school district, the Orange County School District. A School Improvement Plan is a plan designed to improve academic performance and is required when a charter school receives a grade of “D” or “F.” See § 1002.33(9)(n)1., Fla. Stat. (2016). The Department is the agency charged with the responsibility of administering capital outlay funds for charter schools pursuant to section 1013.62, Florida Statutes.1/ Charter school capital outlay funding is a source of funds for charter schools, which must meet eligibility criteria set forth in section 1013.62. The funds can be used only for specific purposes set forth in the statute, such as the purchase of real property, construction of school facilities, purchase of vehicles, computer equipment and software, insurance for school facilities, and renovation and repair of school facilities. See § 1011.71(2), Fla. Stat. Petitioner has used the funding “for subsidizing or supplementing [its] rent.” If funds are appropriated by the Legislature, each year the Department is required to allocate capital outlay funds to eligible charter schools. The allocation is based on the number of students in the school. In school year 2017-2018, charter school capital outlay consisted of a combination of state and local funds, which included both a state appropriation and revenue resulting from the discretionary millage level levied by local school districts under section 1011.71(2). The state appropriation for charter school capital outlay for that year was $50 million. In order to receive capital outlay funds, a charter school must satisfy a number of criteria, one of which is that the school must have “satisfactory student achievement based on state accountability standards applicable to the charter school.” § 1013.62(1)(a)3., Fla. Stat. A school’s budgetary concerns are not a consideration in the approval process. Rule 6A-2.0020 governs eligibility for charter school capital outlay funds and implements the statutory requirement for satisfactory student achievement. The previous version of the rule, effective December 15, 2009, stated, in part: (2) The eligibility requirement for satisfactory student achievement under Section 1013.62, F.S., shall be determined in accordance with the language in the charter contract and the charter school’s current school improvement plan if the school has a current school improvement plan. A charter school receiving an “F” grade designation through the state accountability system, as defined in Section 1008.34, F.S., shall not be eligible for capital outlay funding for the school year immediately following the designation. Under this version of the rule, a charter school that received an “F” grade was automatically ineligible for capital outlay funding. A school that received any grade other than an “F” was evaluated based upon satisfaction of performance metrics in the charter school contract and the School Improvement Plan, if there was one. Therefore, capital outlay funding was not guaranteed to any charter school under the former version of the rule. The 2016 Legislature amended section 1013.62 to change eligibility criteria for charter school capital outlay funding, although the section of the statute relating to satisfactory student achievement was not amended. The goal of the Legislature was to raise academic standards required of charter schools in order to qualify for capital outlay funding. In order to comply with these statutory changes, the Department proposed revisions to rule 6A-2.0020. These proposed revisions also included changes to the criteria for determining satisfactory student achievement that would be required in order to be eligible for capital outlay funds. Rule development began in May 2016, and the Department anticipated that the amended rule would go into effect before school year 2016-2017. The Department determined that revisions to the satisfactory student achievement portion of the rule were necessary in order to be consistent with the Department’s overall approach to school quality and accountability, which included the adoption of new standards and assessments. Based on a review of the school grading statute, and the definition of a “D” school as one that is making less than satisfactory progress, the Department determined that a school earning an “F” or two consecutive grades below a “C” was not consistent with the requirement for satisfactory student achievement. The proposed rule was approved by the State Board of Education at the September 2016 board meeting, but was later withdrawn for further revision. On February 28, 2017, the Department published a Notice of Proposed Rule, proposing that, beginning in school year 2017- 2018, a charter school with two consecutive grades below a “C,” as well as a single “F” grade, would be ineligible for capital outlay funds. The amended portion of the rule that addresses satisfactory student achievement and which is at the heart of this dispute, states as follows: Satisfactory student achievement under Section 1013.62(1)(a)3., F.S., shall be determined by the school’s most recent grade designation or school improvement rating from the state accountability system as defined in Sections 1008.34 and 1008.341, F.S. Satisfactory student achievement for a school that does not receive a school grade or a school improvement rating, including a school that has not been in operation for at least one school year, shall be based on the student performance metrics in the charter school’s charter agreement. Allocations shall not be distributed until such time as school grade designations are known. For the school year 2016-17, a charter school that receives a grade designation of “F” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, a charter school that receives a school improvement rating of “Unsatisfactory” shall not be eligible for capital outlay funding. The words, “Beginning in the school year 2017-18,” were included in the rule to make it clear that the new criteria for satisfactory student achievement would not apply to schools in school year 2016-2017, but instead would apply to schools applying for funding for the school year 2017-2018. These changes were approved by the State Board of Education on March 22, 2017, or before charter schools began submitting applications for funding for the following school year. Due to a third-party challenge of the new rule, however, it did not become effective until August 13, 2017. Fla. Ass’n of Indep. Charter Sch. v. Fla. Dep’t of Educ., Case No. 17-1986RP (Fla. DOAH July 21, 2017), aff’d, 2018 Fla. App. LEXIS 8802 (Fla. 1st DCA June 21, 2018)(per curiam). The Department requires charter schools to submit an application for capital outlay funding each year and requires the sponsoring school district to review the application and make a recommendation regarding eligibility. The applications are filed with the Department using a web-based system known as the Charter School Portal. The Commissioner of Education then makes the final decision as to whether the school has satisfied all eligibility requirements. For the school year 2017-2018, applications for charter school capital outlay funding were due by July 7, 2017, and each sponsoring school district was required to review and recommend its charter schools’ capital outlay plans by July 28, 2017. For school year 2017-2018, 582 applications were submitted for review by the Department. Petitioner began receiving capital outlay funding in school year 2015-2016. It also received funding for school year 2016-2017. Funding in those two years was based on the old rule. Because Petitioner expected, but was not guaranteed, to get capital outlay funding again in 2017-2018, it planned its budget for the upcoming school year with those funds included. Had its application been approved, Petitioner would have received approximately $68,000.00 in capital outlay funding. On June 27, 2017, or three months after the rule was adopted by the State Board of Education, Petitioner submitted its application for charter school capital outlay funding. The Department did not inform Petitioner by separate written notice that the new rule would apply to all capital outlay applications for school year 2017-2018.2/ On July 13, 2017, the Orange County School District recommended that Petitioner be eligible for capital funding. Based on the amended rule, which became effective on August 13, 2017, Petitioner was determined ineligible for capital outlay funding for the 2017-2018 school year, as its two most recent school grades from 2015-2016 and 2016-2017 were lower than a “C.” This determination was consistent with the language in the revised rule, which stated clearly that the rule would apply “Beginning in the school year 2017-18.” In making this determination, the Department applied the rule in a prospective manner, beginning with the 2017-2018 school year, but it used the two most recent school grades (2015-2016 and 2016-2017) to determine eligibility for capital outlay funds. Petitioner was one of approximately a dozen schools that were impacted adversely by the change in the rule. On August 29, 2017, the Department sent an automated email to Petitioner stating that the school was ineligible for capital outlay funds. The email informed Petitioner that the basis for the denial could be accessed on the web-based system that the school used for filing its application. Petitioner also was notified of the denial of capital outlay funds by letter dated October 30, 2017, and yet a third time in an amended letter dated February 2, 2018. The last paragraph in the amended letter reads as follows: After review of your Charter School Capital Outlay Plan, submitted for 2017-18 school year, it has been determined that your school is ineligible to receive charter school capital outlay fund. According to Rule 6A- 2.0020(4), Florida Administrative Code, beginning in the 2017-18 school year, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Therefore, Kids Community College Charter does not meet the requirements for charter capital outlay funding for the 2017-18 school year, as the school received two consecutive grades lower than a “C” [in school years 2015-2016 and 2016-2017]. Petitioner contends that because the letter conflicts with the terms of the amended rule, it constitutes an unadopted rule and cannot be used as the basis for denying its application. In the same vein, Petitioner argues that the most reasonable interpretation of the rule is that only school grades earned beginning in 2017-2018 and beyond can be used to satisfy eligibility for capital outlay funds. This interpretation of the rule, however, would mean that charter schools with any grade designation, including “Fs,” could receive funding in school years 2017-2018 and 2018-2019. Also, it would effectively delay implementation of the new academic standards for two years. In short, if Petitioner’s interpretation is accepted, the new eligibility criteria could not take effect until school year 2019-2020. This is contrary to the Department’s interpretation of the rule, which determines eligibility for capital outlay funds based on the new criteria beginning in school year 2017- 2018. The Department’s interpretation of the rule is as or more reasonable than the interpretation offered by Petitioner. On February 23, 2018, Petitioner filed its request for an administrative hearing to contest the Department’s decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order denying Petitioner’s application for capital outlay funding for the school year 2017-2018. DONE AND ENTERED this 9th day of August, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2018.
Findings Of Fact 1. On April 18, 2014, the Board issued an Invitation to Bid (‘2014 ITB”) for holding pond and related grounds maintenance work. The 2014 ITB specifically advised bidders that the Board reserved the right to contract “all or none, or by group to responsible and responsive bidder(s) determined to be the most advantageous to the District, taking into consideration price, product quality and other requirements as set forth in this ITB.” The language in the 2014 ITB gives the Board the discretion to award the contract to one bidder, several bidders or no bidders. 2. The 2014 ITB specifically advised bidders of their right to challenge the terms and conditions of the ITB. Petitioner, Mark's Lawn Maintenance, Inc., did not challenge the terms or conditions of the 2014 ITB. 3. The 2014 ITB specifically informed bidders that local and small business certification preferences were available to bidders, where applicable. Petitioner was given a 3% local preference for having a business in an adjoining county. Val’s Lawncare, Inc. ("Val's”) received a 5% small business certification preference. Applying the discount, Val's was the lowest bidder. 4. In 2007 and 2010, the Board issued ITBs for holding ponds and grounds maintenance services, and, each time, the contract was awarded to multiple bidders. 5. The 2014 ITB was awarded in accordance with the terms and conditions set forth therein, and not any prior practice or any language from prior ITBs.
Conclusions This matter came upon before the Board for entry of a Final Order upon entry of an Order Relinquishing Jurisdiction by June McKinney, an Administrative Law Judge of the Florida Division of Administrative Hearings, and, having reviewed the same, and ail other matters of record, and being otherwise advised in the premises, the Board finds and concludes as follows:
Conclusions On October 27, 2014, an Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”) entered her ORDER CLOSING FILE AND RELINQUISHING JURISDICTION (“DOAH ORDER”) to the Madison County School Board (the “SCHOOL BOARD” or the “BOARD”) in the above captioned proceeding. A copy of the DOAH ORDER is attached hereto as Exhibit A. The DOAH ORDER indicates that copies were sent to counsel for the SCHOOL BOARD, George T. Reeves, Esq., and counsel for the Petitioner, NEW MILLENNIUM CHARTER SCHOOL, (the “CORPORATION”). The DOAH ORDER was stipulated to by the parties. This matter is now before the SCHOOL BOARD for final agency action.
Findings Of Fact Stipulated Facts Florida High is a charter school created pursuant to section 1002.33(5)(a)2. Florida High is a public school. Pursuant to section 1002.33(5), FSU is the sponsor of Florida High, has executed a charter agreement with FSUS, and performs the duties listed in the charter agreement. Florida High was originally created as a developmental research school and receives public funding for its operations as set forth in section 1002.32(9). Florida High?s student admissions are governed in part by sections 1002.21 and 1002.33(10)(a). FSUS employees are public employees and are part of the Florida Retirement System. The Public Employees Relations Commission has certified a unit of FSUS? instructional personnel for purposes of engaging in collective bargaining. FSUS teachers are subject to the same instructional certification requirements as those for all of Florida?s public school teachers. In establishing Florida High as a lab charter school, FSU and FSUS drafted a charter agreement. The charter agreement was executed by both parties after holding a public hearing. FSUS adopted the Student Code of Conduct after holding a public hearing. FSUS is subject to Florida?s public records laws as set out in chapter 119. All meetings of FSUS? Board of Directors, unless otherwise exempt, are subject to the requirements of Florida?s Sunshine Act and must be noticed and open to the public. FSUS is subject to the class size requirements of Florida?s public school system. FSUS is required to administer the Florida Comprehensive Assessment Test to all students, and the school is included in the state grading system for public schools and subject to specific repercussions by the Department of Education in the event of a failing grade. FSUS is required to report student assessment data to every parent of a student at the school, the school district, and its Board of Directors, and must maintain a website and post this data as well as follow the State Board of Education?s rules pertaining to public notice of school performance. Florida High?s Director files an annual financial disclosure of financial interest with the Florida Commission on Ethics. FSUS has the status of a “Local Education Agency” allowing it to receive federal funds. Jack Carswell was withdrawn from Florida High in part due to paragraph “k” of the Student Code of Conduct entitled “Withdrawal of Invitation”. Additional Facts Petitioner, Jack W. Carswell, was, until the 2013-2014 school year, a student at FSUS, having attended since 2002. Petitioners, Julie and Scott Carswell are Jack W. Carswell?s parents. Charter schools are public schools, and are part of the state?s program of public education. Charter schools may be sponsored by district school boards in the county over which the district school board has jurisdiction, or by a state university. Charter schools sponsored by a state university are in a separate category known as developmental research (laboratory) schools, or “lab schools.” With certain exceptions not applicable here, there is a limit of one charter lab school per state university. Respondent, FSUS, is a lab school created under the authority of sections 1002.32 and 1002.33. Respondent, FSU, is a state university, and is the sponsor of FSUS. The alleged unadopted rule at issue in this proceeding is found at section VI.K. of the Student Code of Conduct, which provides that: K. Withdrawal of Invitation/Expulsion When a student?s behavior is repeatedly inappropriate to others or continues to exhibit absolute disregard for the conditions of behavior set by the school, a meeting will be held and the Principal may recommend to the Director expulsion or permanent withdrawal of invitation of the student. The Principal/designee may recommend to the Director expulsion or withdrawal of invitation any student enrolled when his or her presence has or tends to substantially disrupt or interfere with the orderly educational process, destroys school property, endangers the health or safety of the student or others or infringes on the rights of others. (1) Withdrawal of Invitation FSUS is a school of choice that extends invitations on an annual or longer basis. The administration will decide the viability of a particular student?s invitation to attend FSUS at the end of each school year. Attendance and disciplinary issues will be considered when making these determinations. If it is decided that a particular student?s invitation should be withdrawn, then the Principal will make a written recommendation to the Director. Parents will be formally notified by the administration of a withdrawal of invitation for the next school year during the summer. Every attempt will be made to notify parents of the withdrawal of an invitation as early as possible in the summer so that arrangements for enrolling the student in their home school can be made. The Director may withdraw an invitation as prescribed in this Code or a parent or guardian may voluntarily withdraw the student. Documentation for withdrawal of invitation is a confidential record between the parents/guardian(s) and the school. Such documentation shall not be included in the student?s permanent record. A student cannot avoid expulsion by withdrawing from school. The only rulemaking authority granted by the Legislature in sections 1002.32 or 1002.33 is that conferred on the State Board of Education to adopt rules on how to form and operate a charter school and how to enroll in a charter school once it is created, which rules are to include a model application form, standard charter contract, standard evaluation instrument, and standard charter renewal contract. §§ 1002.33(21)(b)3.b. and 1002.33(27), Fla. Stat.1/ Charter school systems (see section 1002.33(20)(a)4., section 1002.33(20)(a)6., and section 1002.332) have been designated as “local educational agenc[ies]” for the limited purpose of receiving federal funds. § 1002.33(25), Fla. Stat. As further established in that section, however, “[s]uch designation does not apply to other provisions unless specifically provided in law.”
