98-003218 School Board Of Calhoun County vs. Department Of Education
 Status: Closed
Recommended Order on Tuesday, April 13, 1999.


View Dockets  
Summary: Department of Education must fund school district`s over-the-cap special program Full-Time Equivalents as basic education Full-Time Equivalents, rather than zero-fund them.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CHARLOTTE COUNTY SCHOOL )

12BOARD, )

14)

15Petitioner, )

17)

18vs. ) Case No. 98-3218

23)

24DEPARTMENT OF EDUCATION, )

28)

29Respondent. )

31______________________________)

32RECOMMENDED ORDER

34The parties presented this case by a stipulated record to

44Robert E. Meale, Administrative Law Judge of the Division of

54Administrative Hearings.

56APPEARANCES

57For Petitioner: Anne Longman

61Edwin A. Steinmeyer

64Lewis, Longman & Walker, P.A.

69Post Office Box 10788

73Tallahassee, Florida 32302-0788

76For Respondent: Dean Andrews

80Deputy General Counsel

83Department of Education

861701 The Capitol

89Tallahassee, Florida 32399-0400

92STATEMENT OF THE ISSUE

96The issue is whether Petitioner is entitl ed to any funding,

107under the Florida Education Finance Program, for those full-time

116equivalent students whom Petitioner enrolled, taught, and

123initially reported, in a dropout prevention program, but whom

132Petitioner later reported in a lower-funded basic program after

141discovering that these full-time equivalent students exceeded the

149legislatively imposed enrollment ceiling applicable to the

156program group of which the dropout-prevention program is a part.

166PRELIMINARY STATEMENT

168By letter dated February 28, 19 96, Respondent informed

177Petitioner that, due to, among other deficiencies, Petitioner's

185misreporting of numerous full-time equivalencies, Respondent was

192reducing Petitioner's 1993-94 Florida Education Finance Program

199allocation by $346,428.

203By letter dated April 23, 1996, Petitioner requested a

212formal hearing.

214The parties waived a hearing and presented the case by way

225of 21 stipulated exhibits and 10 deposition transcripts.

233FINDINGS OF FACT

2361. On average, Florida school districts receive about 50

245percent of their financial support from state sources, 43 percent

255from local sources, and 7 percent from federal sources. In

2651993 -94, the Legislature appropriated $4,526,812,758 under the

276Florida Education Finance Program ( FEFP) and required local

285funding of $3,109,579,079.

2912. Two parts of the FEFP funding process are relevant to

302this case: setting weighted enrollment ceilings (caps) and

310reporting full-time equivalent students ( FTEs). This case arose

319when the Auditor General discovered that Petitioner reported

327Dropout Prevention FTEs as lower-funded, basic education FTEs.

335Petitioner reported these FTEs in this fashion due to its concern

346that it would receive no FEFP funding for these FTEs, if reported

358as Dropout Prevention FTEs, because they were over the cap set

369for the program group of which the Dropout Prevention program was

380a part.

3823. Setting caps takes place in two stages. The first and

393generally more important stage starts with the preparation by

402each school district of projections, for the following school

411year, of FTEs by program. The second stage of setting caps

422requires that Respondent make complicated, technical adjustments

429when actual FTEs, by program group, exceed the cap for that

440program group.

4424. The terms, "program" and "program group," are important.

451For 1993-94, Section 236.012(1), Florida Statutes (1993) (all

459references to "Section" shall be to the 1993 Florida Statutes),

469identifies the following program groups and their constituent

477programs:

4781. Basic programs.--

481a. Kindergarten and grades 1, 2, and 3.

489b. Grades 4, 5, 6, 7, and 8.

497c. Grades 9, 10, 11, and 12.

5042. Special programs for exceptional

509students.--

510[list of 15 exceptional student education

516programs, such as specific learning

521disability and emotionally handicapped]

5253. Special adult general education

530programs.--

531* * *

5344. Special vocational-technical programs

538job -preparatory.--

540* * *

5435. Special vocational-technical-adult

546supplemental.--

547* * *

5506. Students-at-risk programs.--

553a. Dropout prevention.

556b. Kindergarten through grade 3 ESOL

562[English Speakers of Other Languages].

567c. Grades 4 through 8 ESOL.

573d. Grades 9 through 12 ESOL.

5795. Each district initially submits its FTE projections to

588Respondent where various persons with programmatic and funding

596expertise examine and review the projections for accuracy. The

605cap-setting process continues when, pursuant to Section

612216.136(4), Respondent forwards the FTE projections to the Public

621Schools Education Estimating Conference (Estimating Conference),

627which consists of representatives of the House and Senate staffs,

637the Governor's Office, and the Joint Legislative Committee. The

646Estimating Conference accepts, increases, or decreases the FTE

654projections and sends its projections to the Florida Legislature,

663which, in deciding upon FEFP appropriations for the next school

673year, may accept, increase, or decrease the Estimating

681Conference's FTE projections. This marks the end of the first

691stage of the cap-setting process.

6966. Both stages of the cap-setting process reveal a finely

706tuned funding process that weighs the need for predictability in

716funding, so that the Legislature can know how much it is sending

728to the districts and each district can know how much it will have

741to spend, against the need for flexibility, so that, for

751instance, if Hurricane Andrew sends numerous ESOL students from

760Dade County to Hillsborough County, after the first stage of the

771cap-setting process is completed, the receiving school district

779can obtain the funds properly to educate these children.

7887. The second stage of the cap-setting process is described

798in Section 236.081(1)(d). Section 236.081(1)(d)1 authorizes

804Respondent to calculate a "maximum total weighted full-time

812equivalent student enrollment for each district." Of course,

820Section 236.081(1)(d)2 directs Respondent to begin the second

828stage of the cap-setting process by starting with the FTEs set at

840the end of the first stage, or, in other words, the "enrollment

852estimates used by the Legislature to calculate the FEFP."

8618. Section 236.081(1)(d)3 directs Respondent to calculate

868caps by groups of program groups. Referring back to the above-

879cited statute listing program groups, Group 1 is the first of the

891six listed groups, which is nearly all of basic education. Group

9022 includes the second and sixth groups, which are, respectively,

912exceptional student education ( ESE) and students-at-risk programs

920(At-Risk), including Dropout Prevention. The rest of Group 2 is

930minor parts of basic education and all vocational education

939programs in grades seven thorough twelve. Group 3 consists of

949all adult education programs.

9539. The most complicated part of the second stage of setting

964caps is described in Section 236.081(1)(d)3.a-c. This section

972first makes clear that this part of the cap-setting process does

983not involve Group 1, which, as noted above, is nearly all of the

996basic education programs. Two provisions make this clear.

1004First, Subsection 236.081(1)(d)3.a and b apply only to Groups 2

1014and 3. Second, the last sentence of Section

1022236.081(1)(d)3.b.(IV) states: "For any calculation of the FEFP,

1030the enrollment ceiling [ i.e. , cap] for [G] roup 1 shall be

1042calculated by multiplying the actual enrollment for each program

1051in the program group by its appropriate program weight."

106010. Section 236.081(1)(c) directs the Legislature to

1067establish annually in its General Appropriations Act a cost

1076factor for each of the listed programs under the six program

1087groups. This adjustment reflects, for instance, the greater cost

1096of educating ESE students versus basic-education students.

110311. The remainder of this recommended order will ignore

1112Group 3 because it plays no role in this case and its mention

1125unnecessarily complicates the presentation of information.

113112. Section 236.081(1)(d)3.a describes the caps for Group 2

1140as the sum of the weighted caps ( i.e. , stage-one FTEs for each

1153program times a cost factor for each program) for each program

1164contained in Group 2. The resulting cap must be increased by the

1176receipt of FTEs from the Department of Health and Rehabilitative

1186Services (now Department of Juvenile Justice), but this

1194adjustment is irrelevant to this case.

120013. Section 236.081(1)(d)3.b addresses the possibility of

1207over-enrollment. (The discussion of reporting FTEs takes place

1215later in this recommended order.) Section 236.081(1)(d)3.b

1222directs Respondent, "for any calculation of the FEFP," to follow

1232a specific procedure when actual enrollments exceed the cap for

1242Group 2; the purpose of the procedure is to reduce the "weighted

1254[actual] enrollment for that group to equal the enrollment

1263ceiling [ i.e. , cap]."

126714. Section 236.081(1)(d)3.b(I) directs Respondent first to

1274subtract the weighted cap for each program from the weighted

1284actual enrollment for that program. If the result is greater

1294than zero for any program, Section 236.081(1)(d)3.b(II) directs

1302Respondent to calculate a reduction proportion "for the program"

1311by dividing the net amount by which the weighted actual

1321enrollment in the program group exceeds the weighted cap for the

1332group by the gross amount by which the weighted actual

1342enrollments in over-the-cap individual programs exceed the

1349weighted caps for each of these groups.

135615. An illustration is useful. Assume a hypothetical group

1365subject to capping that contains only four programs with caps of

1376100, 100, 300, and 500 FTEs. Assume actual enrollments,

1385respectively, of 100, 100, 380, and 490 FTEs. The reduction

1395proportion for the third program, which is the only over-the-cap

1405program, would contain a numerator of 70 (because of the netting

1416of the 10 under-the-cap FTEs in the fourth group) and a

1427denominator of 80.

143016. Section 236.081(1)(d)3.b(III) directs Respondent to

1436multiply the resulting reduction proportion by the total amount

1445by which the program group's enrollment exceeds the cap. The

1455first sentence of Section 236.081(1)(d)3.b(IV) directs Respondent

1462to subtract the resulting prorated reduction amount from the

1471program's weighted enrollment.

147417. An important principle emerges at this point: the

1483over-the-cap issues are determined on the basis of the program

1493group. Over-the-cap FTEs in programs within a group are offset

1503by unused FTEs from under-the-cap programs in the same group.

151318. As already noted, the last sentence of Section

1522236.081(1)(d)3.b(IV) directs Respondent to calculate the cap for

1530Group 1 by multiplying the actual enrollment in each program by

1541its cost factor. In the same vein, Section 236.081(1)(d)3.c

1550limits the maximum reduction for Group 2 (and Group 3) by

1561stipulating that the weighted enrollment shall be not less than

1571the sum of the following two numbers. For programs with cost

1582factors of 1.0 or more, such as ESE and At-Risk programs,

1593Respondent must, as required by Section 236.081(1)(d)3.c(I),

1600multiply the "reported FTE" by 1.0. For programs with cost

1610factors of less than 1.0, Respondent must, as required by Section

1621236.081(1)(d)3.d(II), multiply the "projected FTE" by the actual

1629cost factor.

163119. Thus, the effect of Section 236.081(1)(d)3.c(I) is to

1640provide that the weighted cap for Group 2 is never less than the

1653amount yielded by multiplying the "reported FTE[s]" for all

1662programs in the group with a cost factor of 1.0 or more by 1.0.

1676However, it is important to note that the minimal funding

1686guaranteed by Section 236.081(1)(d)3.c(I) does not ensure that

1694all over-the-cap FTEs in, say, Dropout Prevention or Specific

1703Learning Disabilities, will receive a cost factor of no less than

17141.0, even if over the cap; instead, the statute guarantees only

1725that, after all adjustments, no district will receive less than a

1736cost factor of 1.0 for all reported FTEs in Group 2.

174720. Turning to the reporting of FTEs, Section 236.081(1)(a)

1756requires each school district to conduct no more than nine week-

1767long surveys for the purpose of reporting actual FTEs. This

1777statute also requires that each district compute its FTEs "in

1787accordance with the regulations of the state board."

179521. For 1993-94, Respondent issued a document entitled

"1803Standard Procedures for Reporting FTE Earned, Course and Other

1812Issues Regarding the Florida Education Finance Program 1993-94"

1820(Standard Procedures).

182222. Standard Procedures requires districts to use the cited

1831procedures "for reporting unweighted FTE by student by course,

1840for allocating residual FTE to courses funded through the Basic

1850Program categories after special program by student by course FTE

1860is allocated, and for maintaining audit documentation for FTE

1869reporting procedures and elements." Standard Procedures, page 1.

187723. Standard Procedures requires districts to sort their

1885course records into "rank order" with all so-called "special"

1894programs, which includes all programs in the ESE and At-Risk

1904program groups, in the first group to be reported, and all basic

1916programs in the second group to be reported. Standard

1925Procedures, page 11.

192824. However, each district may choose

1934in which order the special program category

1941courses will, in fact, receive consideration.

1947That is, if a student has course records with

1956FEFP Program Numbers in two special program

1963categories and one Basic Program, the

1969district may chose [ sic ] which of the special

1979program categories gets selected for

1984consideration first for determination of FTE

1990Earned, Course, except that BOTH special

1996program categories are considered and FUNDED

2002before any time for the Basic Program is

2010considered for funding. . . .

2016Standard Procedures, pages 11-12.

202025. Prior to submitting its FTEs on the approved form, each

2031district must edit its data so that, among other things, "[a] ll

2043courses with special program FEFP Program Numbers must be

2052considered and funded prior to considering courses with Basic

2061program numbers [subject to two exceptions irrelevant to this

2070case]." Standard Procedures, page 20.

207526. For reporting FTEs in a Dropout Prevention program,

2084Standard Procedures provides:

2087Section 228.041(29), Florida Statutes as

2092amended, provides the definition of a dropout

2099student. However, a student meeting this

2105definition must also meet the eligibility and

2112program requirements as set forth in Section

2119230.2316(4), Florida Statutes. Finally, only

2124those students who meet the eligibility

2130criteria, are admitted to the program

2136according to the admission procedures, and

2142participate in instruction specified in any

2148one of the eligible dropout prevention

2154programs under operating procedures in an

2160approved district dropout plan, as approved

2166by the Department of Education for 1993-94,

2173may be reported as FTE in FEFP Program Number

2182120 [Dropout Prevention Program]. . . .

2189All students who are reported as

2195participating in the Dropout Prevention

2200Program must be properly shown as being in

2208one of the Dropout Prevention Program

2214categories. Failure to properly identify the

2220program will result in the FTE Earned,

2227Course, being nulled for the record

2233submitted.

2234Standard Procedures, page 27.

223827. After each district reports its FTEs, Respondent

2246calculates the proper FEFP funding by multiplying the appropriate

2255FTEs by the appropriate base student allocation, which, under

2264Section 236.081(1)(b), the Legislature must set annually in its

2273General Appropriations Act. Under Section 236.081(1)(c),

2279Respondent then multiplies applies the cost factor for each

2288program before undertaking the second stage of the cap-setting

2297described above and in Section 236.081(1)(d).

230328. In 1993-94, the base student allocation was $2501.05,

2312the cost factor for grades 4-8 basic education was 1.0, the cost

2324factor for grades 9-12 basic education was 1.224, and the cost

2335factor for dropout prevention was 1.615. In 1993-94, the funding

2345allocated for basic-education students was $1000-$1500 less per

2353student than the funding allocated for dropout prevention.

236129. During 1993-94, Respondent reported 15,166.04 full-time

2369equivalent students ( FTEs) in nine elementary schools, four

2378middle schools, three high schools, one adult education center,

2387one area vocational-technical school, two exceptional centers,

2394and two other educational centers.

239930. Rule 6A-1.0451, Florida Administrative Code, provides

2406that the Commissioner of Education shall prescribe the dates for

2416FTE surveys. ( All references to Rules are to the Florida

2427Administrative Code.) For 1993-94, the FTE surveys took place

2436July 12-16, 1993; October 4-8, 1993; February 7-11, 1994; and

2446June 20-24, 1994.

244931. Rule 6A-1.0451(7) provides that districts shall report

2457the FTEs in all special programs in the special program cost

2468factor prescribed in Section 236.08(1)(c), "when the student is

2477eligible and is attending a class, course, or program which has

2488met all of the criteria for the special program cost factor."

249932. By memorandum dated March 9, 1994, in connection with

2509the February FTE survey, one of Petitioner's deputy

2517superintendents directed Petitioner's Director of Management

2523Information Services to change 127 unweighted FTEs from the

2532Dropout Prevention program to a basic program to "prevent us from

2543exceeding our caps in Category [Group] 2 programs."

255133. Petitioner later reported these FTEs by reporting them

2560as basic education FTEs when they were eligible for, enrolled in,

2571and previously reported in the Dropout Prevention program.

257934. By Audit Report issued October 20, 1995, the Office of

2590the Auditor General determined that Petitioner misreported 86.52

2598unweighted FTEs as basic education FTEs, when it should have

2608reported them as Dropout Prevention FTEs. The Audit Report also

2618reclassified one student, at 0.4165 unweighted FTEs, from the

2627Dropout Prevention program to a basic education program due to

2637the absence of adequate documentation.

264235. Rule 6A-1.0453(2) authorizes the Auditor General to

2650conduct audits of districts receiving FEFP funding. Rule

26586A -1.0453(3) requires the audit report to identify:

2666(a) Errors in the reported full-time

2672equivalent membership by program category;

2677(b) Improper classification or placement of

2683individual students assigned to educational

2688alternative or exceptional student programs;

2693and

2694(c) Failure of classes or programs to meet

2702criteria established by the State Board

2708[citations omitted] for basic or special

2714programs.

271536. Rule 6A-1.0453(4) provides:

2719Upon receipt of an official audit report, the

2727Deputy Commissioner for Planning, Budgeting

2732and Management shall compute the amount of

2739adjustment to the district's allocation of

2745state funds necessary to compensate for the

2752errors or deficiencies noted in

2757subsection (2). In those instances where a

2764student has been improperly classified or

2770placed in an exceptional student program, and

2777in those instances were a special program

2784fails to meet the prescribed criteria, the

2791adjustment shall be computed on the basis of

2799the basic program cost factor for which each

2807student qualifies. Except for adjustments

2812made during the fiscal year in which the

2820discrepancies occurred[,] adjustments shall

2825be limited to fund allocations and no changes

2833shall be made in full-time equivalent

2839membership data.

284137. By letter dated February 28, 1996, Respondent advised

2850Petitioner of a reduction in FEFP funding for the 1993-94 school

2861year, resulting from the findings of the Audit Report, of

2871$346,428. A letter dated February 12, 1999, from counsel for

2882Respondent to counsel for Petitioner, identifies the portion of

2891this sum attributable to the misreporting of Dropout Prevention

2900FTEs as $267,715.

290438. Rule 6A-1.0453(5) requires Respondent to provide

2911official notice to Petitioner of all adjustments following the

2920issuance of the audit report. This notice must include a

"2930statement citing the specific law or rule upon which the finding

2941of each discrepancy is based, and the authority under which the

2952adjustment is to be made . . .."

296039. The parties participated in an informal conference, as

2969provided by Rule 6A-1.0453(6). The parties have largely framed

2978the issue in the informal conference as whether Petitioner is

2988free to report Dropout Prevention FTEs as basic education FTEs.

2998The parties were unable to resolve this issue.

300640. Attempting to find a basis for compromise, Respondent's

3015representatives reviewed Petitioner's Dropout Prevention records

3021in the hope of finding grounds for determinations of

3030ineligibility, so as to permit a reclassification of over-the-cap

3039Dropout Prevention FTEs as basic education FTEs and allow some

3049funding, as the Audit Report did in the case of the one student

3062improperly classified for the Dropout Prevention program.

306941. However, Respondent's representatives were unable to

3076find such documentation errors. Thus, Respondent has maintained

3084its position that the Dropout Prevention FTEs in excess of the

3095enrollment cap are funded at zero, not even at the lesser basic

3107education rate. (Sometimes, Respondent's witnesses express the

3114zero funding differently by saying that the over-the-cap Dropout

3123Prevention FTEs do not generate their own FEFP funds, but

3133participate pro rata in the FEFP funds generated by the

3143under -the -cap Dropout Prev ention FTEs. However, this amounts to

3154the same thing: no more FEFP funding for enrolling and teaching

3165over-the-cap Dropout Prevention FTEs. All references in this

3173recommended order to zero funding thus include prorate funding.)

318242. Nothing in the record cites the authority by which

3192Respondent zero-funded the over-the-cap Dropout Prevention FTEs,

3199whom Petitioner reported as basic education FTEs. Interestingly,

3207six of Respondent's employees cited the "law" that over-the-cap

3216FTEs, presumably by group rather than individual program, receive

3225zero funding, but not one of them could cite to the authority for

3238this "law." ( Eggers, page 17; Stewart, page 11; Goff, page 11;

3250Pierson, page 10; Butler, page 30; and Jarrett, pages 20 and 22.)

326243. Section 236.012(2) states in part that the purpose of

3272the FEFP is:

3275(2) To increase the authority and

3281responsibility of districts for deciding

3286matters of instructional organization and

3291method and to encourage district initiative

3297in seeking more effective and efficient means

3304of achieving the goals of the various

3311programs.

33121. The material provisions of the above-described laws

3320remain in effect today. The issue of funding over-the-cap FTEs

3330in At-Risk programs is not unique to this case. Another case

3341involving Putnam County is reportedly pending. Also, an Audit

3350Report issued June 15, 1995, involving FEFP funding for the

3360Hillsborough County School District found intentional

3366misreporting of over-the-cap ESOL FTEs as basic education FTEs to

3376avoid zero funding.

33792. Respondent's Policy Director, Link Jarrett introduced a

3387much-needed perspective when he alluded to the necessity of

3396balancing the educational needs of children against the complex

3405funding considerations that have dominated this dispute.

3412Mr. Jarrett testified:

3415. . . we are making a good faith effort to

3426the parent and to the child to place the

3435student in the program, regardless of what

3442the funding is. That's easy for me to maybe

3451say at the State level.

3456* * *

3459. . . the basic [tenet] on equal education

3468opportunity in serving these children is you

3475place them in the programs that they need to

3484be served in. And to some extent, you might

3493take a risk in exceeding your cap. And is

3502that worth not placing a student in a program

3511and not giving him the appropriate--I would

3518say no. . . .

3523[If I were a District Finance Officer], I

3531would be saying serve the kids, and where

3539they fall--I would give you my best estimate

3547of the children to be served, and I would

3556serve them in those programs, and I would let

3565the chips fall where they may.

3571Transcript of Link Jarrett deposition, pages 39-40.

3578CONCLUSIONS OF LAW

35813. The Division of Administrative Hearings has jurisdiction

3589over the subject matter. Section 120.57(1).

35954. Neither party argues the burden of proof in its proposed

3606recommended order. Courts generally assign the burden of proof

3615on the party with the affirmative of the issue. See, e.g. , Young

3627v. Department of Community Affairs , 625 So. 2d 831 (Fla. 1993);

3638Department of Banking and Finance v. Osborne Stern and Company,

3648Inc. , 670 So. 2d 932 (Fla. 1996). Absent the Audit Report and

3660the action taken by Respondent to recalculate the Group 2

3670weighted cap, Petitioner would have retained the funds in dispute

3680over the classification of the Dropout Prevention FTEs.

3688Respondent has the affirmative of the issue to show that

3698Petitioner is entitled to zero funding for its over-the-cap

3707Dropout Prevention FTEs. Although the burden of proof is on

3717Respondent, the same findings, conclusions, and recommendation

3724would have followed if the burden of proof had been on

3735Petitioner.

37365. Petitioner's main argument is that Dropout Prevention

3744FTE reporting is voluntary and, thus, Petitioner could, for any

3754reason, choose to report these FTEs as basic education FTEs.

37646. This argument is unsupported by Rule 6A-1.0451(7),

3772which requires that districts report students in special programs

3781as FTEs in the special program in which they are receiving

3792instruction. The cited provision at page 11 of Standard

3801Provisions, which requires the presentation of special program

3809FTEs prior to basic program FTEs, also compels that Petitioner

3819classify its Dropout Prevention FTEs in the Dropout Prevention

3828program (unless they qualified for another special program, in

3837which case Petitioner could exercise discretion—as between or

3845among two or more such special programs, but not as between or

3857among one or more special programs and one or more basic

3868programs). The contrary result would, among other things,

3876distort the enrollment data, on which future educational planning

3885is based.

38877. In support of its contrary argument, Petitioner relies

3896primarily on the cited provisions of page 27 of the Standard

3907Procedures, which provides that Petitioner "may" report as

3915Dropout Prevention FTEs only those students meeting various

3923criteria. This use of "may" does not mean that such reporting is

3935permissive or voluntary, rather than mandatory. Rather, such use

3944of "may" means that districts are only permitted to report as

3955Dropout Prevention FTEs those students who meet the various

3964criteria.

39658. Close examination of the Dropout Prevention provisions,

3973including the "may" clause, and the other cited portions of the

3984Standard Procedures explains the use of "may." The assumption of

3994the Standard Procedures is that districts will want to report

4004FTEs in the programs with the highest possible cost factors.

4014This bias built into the Standard Procedures acknowledges no

4023downside to this reporting practice, as would be consistent with

4033the absence of punitive zero funding for over-the-cap Group 2

4043FTEs.

40449. Although Petitioner may not generally report Dropout

4052Prevention FTEs as basic education FTEs, the cited provisions at

4062pages 11 -12 and 20 of the Standard Procedures establish an

4073exception to this general prohibition. As provided by these

4082cited provisions, the general requirement to report special

4090program FTEs only as special program FTEs, rather than basic

4100program FTEs, applies only as long as the special program FTEs

4111are funded. By implication, once the special program FTEs are no

4122longer funded, a district may report these FTEs under basic

4132programs, which would ensure the minimal cost factor accorded

4141basic education FTEs.

414410. The exception that allows districts to report and

4153Respondent to fund as basic education FTEs what would otherwise

4163be unfunded special program FTEs explains the action of the

4173Auditor General, upon discovering inadequate documentation for

4180one reported Dropout Prevention student, in converting his

4188Dropout Prevention FTE to a basic education FTE, rather than zero

4199funding the student. Similarly, this exception explains the

4207actions of Respondent's representatives in seeking evidence of

4215additional students failing to meet the criteria of the Dropout

4225Prevention program; Respondent, too, sought the chance to

4233reclassify these over-the-cap Dropout Prevention FTEs as basic

4241education FTEs in order not to zero fund them.

425011. The exception that allows districts to report and

4259Respondent to fund as basic education FTEs what would otherwise

4269be unfunded special program FTEs is not limited to special

4279program FTEs that are unfunded due to the disqualification of the

4290program or the student. This exception applies equally to

4299special program FTEs that would otherwise be unfunded because

4308they exceed the group cap.

431312. In providing for caps, the Legislature did not

4322expressly authorize zero funding for all over -the -cap Group 2

4333FTEs. What is clear from the complicated capping statute is that

4344the Legislature allowed a district effectively to borrow unused

4353weighted, below-the-cap FTEs from one program in Group 2 to

4363offset weighted, above-the-cap FTEs from another program in

4371Group 2. This liberal approach to funding over-the-cap programs

4380does not suggest an intent to zero fund over-the-cap programs in

4391over-the-cap groups.

439313. Consistent with this Legislative intent are the

4401already-discussed provisions of the Standard Procedures

4407prioritizing the reporting of "funded" special-program FTEs.

441414. In addition to the lack of legal support for the policy

4426of zero funding over-the-cap special program FTEs, two practical

4435issues may arise as a result of this policy of depriving

4446districts even of basic education funding for such FTEs. First,

4456districts that would take the risk of reduced funding of FTEs in

4468nonmandatory special programs, such as Dropout Prevention and

4476ESOL (as opposed to ESE), might find themselves unable to take

4487the risk of no funding whatsoever. These districts would thus

4497reduce or eliminate these important programs. Second, districts

4505belatedly finding themselves in a grave financial situation due

4514to zero funding may be tempted to take advantage of the more

4526liberal treatment afforded by Respondent and the Auditor General

4535to students or programs determined not to meet the criteria of

4546the applicable special program. The funding distinction

4553maintained between over-the-cap special program FTEs and

4560disqualified special programs or students in special programs

4568invites abuse of the FEFP funding process by individual district

4578employees achieving the noncompliance of sufficient number of

4586cumulative files or even of program documentation to ensure that

4596the over-the-cap special program FTEs are funded as basic

4605education FTEs. A funding policy that prefers disqualified FTEs

4614to over-the-cap FTEs defies logic because the greater culpability

4623attaches to the acts and omissions that produce the

4632disqualification of a student or an entire program than to the

4643acts and omissions that result in the over-enrollment of special

4653program students, especially when the enrollment census of a

4662large component of the Group 2 students-- ESE--is mandatory and

4672largely out of the control of the districts.

468015. In the final analysis, Petitioner has provided

4688important Dropout Prevention educational services through an

4695eligible program to eligible students, but has provided the

4704services to more students than the Legislature agreed to fund at

4715enhanced levels. Respondent's punitive remedy of zero funding

4723these over-the-cap special program FTEs lacks any explicit legal

4732authority, serves no legitimate educational or funding policy,

4740and is arbitrary and capricious. Funding these over-the-cap

4748special program FTEs as basic education FTEs is supported by the

4759law and logic.

4762RECOMMENDATION

4763It is

4765RECOMMENDED that the State Board of Education enter a final

4775order declaring that Petitioner is entitled to: a) funding at

4785the Dropout Prevention cost factor for any FTEs that qualified to

4796be reported as Dropout Prevention FTEs and that were not over the

4808Group 2 cap; and b) funding at the basic education cost factor

4820for any remaining FTEs that qualified to be reported as Dropout

4831Prevention FTEs, but were over the Group 2 cap.

4840DONE AND ENTERED this 13th day of April, 1999, in

4850Tallahassee, Leon County, Florida.

4854___________________________________

4855ROBERT E. MEALE

4858Administrative Law Judge

4861Division of Administrative Hearings

4865The DeSoto Building

48681230 Apalachee Parkway

4871Tallahassee, Florida 32399-3060

4874(850) 488-9675 SUNCOM 278-9675

4878Fax Filing (850) 921-6847

4882www.doah.state.fl.us

4883Filed with the Clerk of the

4889Division of Administrative Hearings

4893this 13th day of April, 1999.

4899COPIES FURNISHED:

4901Anne Longman

4903Edwin A. Steinmeyer

4906Lewis, Longman & Walker, P.A.

4911Post Office Box 10788

4915Tallahassee, Florida 32302-0788

4918Dean Andrews

4920Deputy General Counsel

4923Department of Education

49261701 The Capitol

4929Tallahassee, Florida 32399-0400

4932Michael H. Olenick, General Counsel

4937Department of Education

4940The Capitol, Suite 1701

4944Tallahassee, Florida 32399-0400

4947Honorable Tom Gallagher

4950Commissioner of Education

4953Department of Education

4956The Capitol, Plaza Level 08

4961Tallahassee, Florida 32399-0400

4964NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4970All parties have the right to submit written exceptions within 15

4981days from the date of this recommended order. Any exceptions to

4992this recommended order must be filed with the agency that will

5003issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 07/19/1999
Proceedings: Final Order filed.
PDF:
Date: 07/18/1999
Proceedings: Agency Final Order
Date: 07/15/1999
Proceedings: Final Order filed.
PDF:
Date: 04/13/1999
Proceedings: Recommended Order
PDF:
Date: 04/13/1999
Proceedings: Recommended Order sent out. CASE CLOSED. No Hearing held.
Date: 04/12/1999
Proceedings: (Respondent) Page 13 that was omitted from the Respondent`s Recommended Order (filed via facsimile).
Date: 04/05/1999
Proceedings: Respondent`s Recommended Order (For Judge Signature) (filed via facsimile).
Date: 04/05/1999
Proceedings: Petitioner Charlotte County School Board`s Proposed Recommended Order (For Judge Signature); Appendix to Petitioner Charlotte County School Board`s Proposed Recommended Order filed.
Date: 03/10/1999
Proceedings: The Deposition of: Link Jarrett ; Summary Reports of unweighted FTE for all school districts for all four FTE counts from the 1988-89 school year through the 1997-98 school year filed.
Date: 03/10/1999
Proceedings: The Deposition of: Shirley Ann Goff ; The Deposition: of Wayne Pierson ; The Deposition of: Mary Jo Butler filed.
Date: 03/10/1999
Proceedings: (A. Longman) Notice of Filing; Deposition of: Jeanine Blomberg ; The Deposition of: Mark Eggers ; The Deposition of: Carolyn Dubard ; The Deposition of: John Stewart filed.
Date: 03/05/1999
Proceedings: Notice of Filing, Deposition of Gary Kehrer & Deposition of Grefory S. Griner rec`d
Date: 03/05/1999
Proceedings: Notice of Filing Documents 1 thru 21 (Petitioner) rec`d
Date: 03/04/1999
Proceedings: Parties` Stipulated Record of the Proceedings rec`d
Date: 03/03/1999
Proceedings: Petitioner`s Notice of Filing rec`d
Date: 03/02/1999
Proceedings: (A. Longman) Notice of Taking Deposition filed.
Date: 02/25/1999
Proceedings: (A. Longman) Notice of Taking Deposition filed.
Date: 02/23/1999
Proceedings: (Respondent) Request for Issuance of Subpoenas (filed via facsimile).
Date: 02/19/1999
Proceedings: Order Denying Motion for Continuance sent out. (motion denied)
Date: 02/19/1999
Proceedings: (A. Longman) Notice of Taking Deposition filed.
Date: 02/12/1999
Proceedings: (Respondent) 2/Notice of Taking Deposition (filed via facsimile).
Date: 01/14/1999
Proceedings: Second Amended Notice of Hearing as to Building and Room Number sent out. (hearing set for March 8-9, 1999; 10:00am; Port Charlotte)
Date: 12/07/1998
Proceedings: (Respondent) Motion for Order Compelling Production of Documents; Cover Letter (filed via facsimile).
Date: 10/27/1998
Proceedings: Order Granting Continuance and Amended Notice of Hearing sent out. (hearing reset for March 8-9, 1999; 10:00am; Port Charlotte)
Date: 10/19/1998
Proceedings: Petitioner`s Response to Respondent`s Request for Production of Documents filed.
Date: 10/19/1998
Proceedings: (A. Longman) Certificate of Serving Petitioner`s Answers to Respondent`s First Interrogatories to Petitioner; Petitioner`s Answers to Respondent`s First Interrogatories filed.
Date: 10/19/1998
Proceedings: (A. Longman) Stipulated Motion for Continuance and Rescheduling of Hearing filed.
Date: 10/06/1998
Proceedings: Respondent`s Answers to Interrogatories (filed via facsimile).
Date: 10/06/1998
Proceedings: Notice of Certificate of Serving Respondent`s Answers to Petitioner`s First Interrogatories (filed via facsimile).
Date: 09/15/1998
Proceedings: Respondent`s Request for Production of Documents to Petitioner filed.
Date: 09/15/1998
Proceedings: Respondent`s First Interrogatories to Petitioner; Notice and Certificate of Serving Respondent`s First Interrogatories to Petitioner filed.
Date: 09/04/1998
Proceedings: Petitioner`s Request for Production of Documents to Respondent; Notice and Certificate of Serving Petitioner`s First Interrogatories to Respondent filed.
Date: 08/05/1998
Proceedings: Notice of Hearing sent out. (hearing set for Nov. 5-6, 1998; 9:00am; Port Charlotte)
Date: 08/03/1998
Proceedings: Petitioner`s Notice of Appearance and Response to Initial Order filed.
Date: 07/27/1998
Proceedings: Response of Respondent to Initial Order filed.
Date: 07/22/1998
Proceedings: Initial Order issued.
Date: 07/17/1998
Proceedings: Agency Referral Letter; Request for For Hearing, Letter Form; Agency Action Letter filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
07/17/1998
Date Assignment:
07/22/1998
Last Docket Entry:
07/19/1999
Location:
Port Charlotte, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (2):

Related Florida Rule(s) (3):