11-002183 Tampa School Development Corp., D/B/A Trinity School For Children vs. Hillsborough County School Board Status: Closed DOAH Final Order on Tuesday, October 25, 2011.

Summary: Charter School properly invoked DOAH appeal, challenging School Board's refusal to allow two existing charter schools to consolidate; Two charters allowed to consolidate where facts show combining the two charters will result in financial efficiency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMPA SCHOOL DEVELOPMENT CORP., )

d/b/a TRINITY SCHOOL FOR )

CHILDREN , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2183

)

HILLSBOROUGH COUNTY SCHOOL )

BOARD , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice, a hearing was held in this case on

August 17, 2011, by video teleconference in Tallahassee and

Tampa, Florida , before Thomas P. Crapps, a designated

Administrative Law Judge of the Division o f Administrative

Hearings.

APPEARANCES

For Petitioner: Stephanie Alexander, Esq uire

Tripp Scott, P.A.

200 West College Avenue

Suite 216

Tallahassee, F lorida 32301

Patr ick K. Wiggins , Esquire

Patrick K. Wiggins, P.A.

Post Office Drawer 1657

Tallahassee, F lorida 32302

For Respondent: Thomas M. Gonzalez, Esq uire

LaKisha M. Kinsey - Sallis, Esq uire

Thompson, Sizemore, Gonzalez &

Hearing, P.A.

201 N. Franklin Street, Suite 1600

Tampa, F lorida 33602

STATEMENT OF THE ISSUE

Whether Respondent, Hillsborough County School Boa rd

(School Board), erred in denying the Petitioner's request to

consolidate its two charter contracts into one charter

agreement.

PRELIMINARY STATEMENT

On April 11, 2011, Petitioner, Tampa School Development

Corporation doing business as Trinity School fo r Children

(Trinity School), pursuant to section 1002.33(6)(h), Florida

Statutes (2010), filed with the Division of Administrative

Hearings (DOAH) an Amended Notice/Request for Initiation of

Proceedings. 1/ The issue set out in the Amended Notice/Request

o f Initiation of Proceedings is "[w]hether the Trinity School

for Children should be allowed to consolidate or combine the

Upper School and the Lower School into one for purposes of the

controlling charter contract, audit and financial reporting,

and/or for other purposes?"

On June 8, 2011, the instant case was assigned to

Administrative Law Judge Thomas Crapps, and the undersigned

scheduled a final hearing for August 17, 2011.

On August 3, 2011, the School Board filed a Motion to

Dismiss for Lack of Juris diction , arguing that DOAH lacked

subject matter jurisdiction. On August 5, 2011, Trinity School

filed a Motion for Continuance of Final Hearing, and Request for

a Telephonic Hearing on the Respondent's Motion to Dismiss for

Lack of Jurisdiction.

On Augus t 17, 2011, the undersigned denied Trinity School's

Motion to Continue, and began the scheduled final hearing with

the School Board's Motion to Dismiss. The undersigned retained

jurisdiction to rule upon the School Board's motion, and

directed the parties to proceed with the scheduled final

hearing.

Trinity School presented the testimonies of Madeline

O'Dea, Ph. D (Dr. O'Dea) and Mindy Difranco (Ms. Difranco) .

Petitioner's Exhibits 1, 2, 3, 7, 9, 13 and 19 were admitted

into evidence. The School Board pr esented the testimony of

Jenna Hodgens (Ms. Hodgens). Respondent's Exhibits 3 and 9 were

admitted into evidence. The parties stipulated facts which the

undersigned incorporated into the findings of facts.

A one - volume T ranscript of the hearing was file d with the

DOAH on August 31, 2011. On September 12, 2011, the School

Board filed an unopposed motion for extension to file proposed

final orders. The School Board's motion was granted, and the

parties submitted proposed final orders on September 26, 201 1.

The undersigned has considered the proposed final orders in

preparing this Final Order.

FINDINGS OF FACT

1. Trinity School is a Florida corporation that owns and

operates two charter schools in Hillsborough County , Florida.

The two charter schools are known as Trinity Lower School for

Children and Trinity Upper Schoolinity Lower School for

Children provides education for 425 students in kindergarten

through fit th gradeinity Upper School serves 225 students

in six th through eigh th grades .

2. The School Board is constitutionally and statutorily

charged with the operation and supervision of all K through 12

public schools in Hillsborough County, Florida. Art. IX, §

4(b), Fla. Const.; §§ 1001.32(2) and 1003.02. The two Trinity

charter sch ools are part of the public school system and are

sponsored by the School Board. § 1002.33.

3. Trinity School was formed by a group of educators and

parents of children who had attended a private Roman Catholic

School that was closing. In 1999, Trinity School submitted its

application to form a K through eigh th grade charter school.

Its application was approved by the School Board, and Trinity

began operation in 1999.

4. Trinity School's population grew steadily from its

inception and in 2003 , Trinit y School sought to purchase a

building across the street from its campus. Ms. O'Dea, the

founder, principal, chief executive , and educational officer for

Trinity School, explained that Trinity School learned that it

would be eligible for additional federa l start - up money, if

Trinity School divided its charter into two separate charters.

By dividing the original charter and creating a new charter

school for the middle school, Trinity School was able to obtain

at least $ 4 50,000.00 , in federal start - up funds which was used

to help purchase a building across the street from the original

school, grow the number of classes, as well as increase the

number of programs and teachers.

5. In 2003, Trinity School applied for a charter for the

Trinity Upper School, w hich would serve six th through eigh th

grades . The School Board approved the charter for the Upper

School, and Trinity School was able to receive the federal

start - up money. The Trinity Upper School began operating under

its own charter in 2004.

6. Alt hough two separate charters, both Trinity Schools

are operated by the same parent corporation, follow the same

Bank Street School principles of educational development, and

are located in the same location. Further, the record showed

through the testimony of Ms. Difranco, Trinity School's director

of finance, that the two charter schools "actually function as

one school[,] [w]e share buildings; we share a media center; we

share staff; we use one accounting system."

7. On April 3, 2008, Trinity School wr ote the School

Board's representative to request a change in Trinity School's

financial reporting to the school districtinity School's

letter recognized that both schools operated "under the fiscal

umbrella of The Tampa School Development Cooperation [sic] , but

the schools' finances are reported to the district separately."

Trinity School advised the School Board representative that

combining the schools' financial reports would benefit "both our

accounting practices and the school district."

8. On M ay 15, 2008, Ms. Hodgens, the School Board's

supervisor of charter schools, wrote Ms. O'Dea:

After consulting with the Department of

Education regarding your request to combine

Trinity School for Children and Trinity

Upper School, the district has been adv ised

that you are able to combine the two

schools. I will present your request to the

Hillsborough County School Board regarding

the combination of the two schools during

your schools' contract renewal process.

9. On March 15, 2010, the School Board w rote Ms. O'Dea

concerning the renewal of the charters. The School Board

informed Ms. O'Dea that "Trinity School for Children/Trinity

Upper is scheduled for Contract Renewal Review[,]" and requested

that a list of materials be provided for the review.

10. On June 28, 2010, Ms. Hodgens, referencing her earlier

letter dated May 15, 2008, wrote Ms. O'Dea concerning Trinity

School's request to combine the charters during the contract

renewal period. Specifically, Ms. Hodgens wrote:

After several conversations with district

staff, there is no educational benefit for

students by combining the two schools. Due

to this fact, the Superintendent will not be

making this recommendation to the School

Board at the time of your contract renewal.

11. Trinity School and the School Board brought their

consolidation dispute before the Department of Education under

section 1002.33(6)(h). On March 30, 2011, Dr. Eric Smith, the

Florida Commissioner of Education, entered a Mediation Report of

Impasse , stating that the parties had reached an impasse and

that the matter could not be settled through mediation , pursuant

to section 1002.33(6)(h).

12. Ms. Difranco, who has been Trinity Schools' d irector

of f inance for the past two years, credibly testified that both

schools functio ned administratively as one school, but were

required to file separate fiscal reports. Furthermore, she

credibly testified that creating the two separate fiscal reports

for each school, results in Trinity School's accountants and

personnel having to perfo rm additional duties of separating the

relevant data by school. Ms. Difranco credibly testified that

she had conducted a cost analysis comparing the costs of

treating the two schools as separate charters with an estimated

cost of operating under one chart er. According to Ms. Difranco,

the savings to Trinity School would be approximately

$123,000.00 , a year. The largest bulk of the savings would come

from a reduction in the administrative fee Trinity School pays

to the School Board to administer the chart er schools. Ms.

Difranco estimated that the administrative fee paid to the

School Board would reduce by approximately $65,000.00 , a year.

13. The reason for the reduction in administrative fees

received by the School Board is the legislature's enactmen t of

section 1002.33(20)(a), Florida Statutes (2011). Section

1002.33(20)(a), in part, changed the formula used to calculate

the administrative fee charged to charter schools by district

school boards. This change in the formula for funding results

in a reduction of the amount of money that the School Board will

receive as administrative fees from Trinity School if the two

charters are combined into one charter.

14. The School Board , in making its decision about whether

or not to grant the request to combine the two charters into one

charter , considered the fact that it would receive less money

from the administrative fees, if the two charters were combined.

15. Both Trinity Schools have received from the State of

Florida "A" ratings and are respected charter schoolsinity

Schools, however, have not been designated as "high - performing"

charter schools by the Commissioner of Education , as defined by

section 1002.331, Florida Statutes (2011). The reason that

Trinity Schools Ó two charters do not meet the statutory

definition of "high - performing" charter school under

section 1002.331 is due to past negative fund balances. The

record, however, showed that Trinity School s are on the verge of

eliminatin g the financial difficulties. Specifically, the

te stimony showed that in 2009 - 2010 school year, Trinity Schools

had a negative fund balance. However, the testimony showed

through Ms. Difranco that for school years 2010 - 2011 , and the

current school year 2011 - 2012, that Trinity Schools have met the

fiscal requirements.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction pursuant to section

1002.33(6)(h). The conditions precedent under section

1002.33(6)(h) , for invoking DOAH jurisdiction have been met . 2 /

17. Section 1002.33(6)(h) , provides that the instant c ase

is an appeal and that "the A dministrative L aw J udge may rule on

issues of equitable treatment of the charter school as a public

school, whether proposed provisions of the charter violate the

intended flexibility granted to charter schools by statute, o r

on any other matter regarding this section , except a charter

school application denial, a charter termination, or a charter

nonrenewal . . ." . The legislature's language sets out the

scope of the appeal and issues that may be considered in this

case.

18. Because this "appeal" comes to the A dministrative L aw

J udge without a record, the undersigned concluded that it was

proper to conduct an evidentiary hearing concerning Trinity's

request to combine the two chartersinity School as the

petitioner se eking relief had the burden of proof of

establishing facts that show its entitlement to relief by a

preponderance of the evidence. See § 120.57(1)(j) , Fla. Stat. ;

and Fla. Dep Ó t of Transp . v. J.W.C., Inc. , 396 So. 2d 778, 781

(Fla. 1st DCA 1981). Section 1002.33(6)(h) does not contain an

express appellate standard of review or finding, or deference

for a d ecision made by the sponsor. As such, the undersigned

determined that the scope of issues set out by the legislature

in section 1002.33(6)(h) provide s for a de novo review by the

A dministrative L aw J udge. In an abundance of caution, the

undersigned also has reviewed the School Board's decision not to

grant Trinity School's request to combine the two charters under

an abuse of discretion standard. 3 /

19. The legislature in enacting the charter school

statute , set out guiding principles and the purpose for the

legislation. Expressly, charter schools are be guided by the

following principles:

1. Meet high standards of student

achievement while providing pa rents

flexibility to choose among diverse

educational opportunities within the state's

public school system.

2. Promote enhanced academic success and

financial efficiency by aligning

responsibility with accountability.

3. Provide parents with sufficient

information on whether their child is

reading at grade level and whether the child

gains at least a year's worth of learning

for every year spent in the charter school.

§ 1002.33(2)(a)1 through 3.

20 In the instant case , Trinity School is seeking to

combi ne two existing charter schools into one charter , pursuant

to section 1002.33(7)(c) in order to promote financial

efficiency. The facts clearly showed that both of the charter

schools operate and function as one school, sharing many of the

same resources. Further, it was undisputed that both Trinity

School charters provide an excellent education for their

students and that combining the two charters into one charter

will result in efficiency of resources and save the charter

schools approximately $125,000 .00 a year. One of the

legislature's express guiding principles is that charter schools

"[p]romote enhanced academic success and financial efficiency by

aligning respons ibility with accountability." Clearly, if

Trinity Schools can operate more efficientl y by consolidating

its administrative expenses and reduce the amount paid in

administrative fees to the School Board, then the charter

schools have more money to do what these schools do best,

educate the students.

21. Trinity School met its evidentiary b urden of proof of

showing by a preponderance of evidence that its request to

combine the two charter schools into one charter is appropriate

and consistent with the flexibility that the legislature has

provided to charter schools, and meets the express gui des for

charter schools.

22. The School Board's argument that the newly enacted

section 1002.331, Florida Statutes (2011) , shows that the

legislature intended that only "high - performing charter schools"

are allowed to consolidate existing charters and tha t Trinity

School does not meet the statutory definition of a "high -

performing charter school" is flawed. A reading of section

1002.331 does not show that the legislature intended that only

"high - performing charter schools" may consolidate existing

charter s. Section 1002.331 allows a charter school that meets

the statutory definition of "high - performing" with the benefit

of being able to consolidate existing high - performing charters

without having to obtain a sponsor's approval. Section 1002.331

does not preclude a charter school from seeking a modification

of its charter under section 1002.33(7)(c) to allow a

consolidation. The chief difference between the two instances

is that the charter school seeking a modification under section

1002.33(7)(c) is requ ired to obtain its sponsor's approval. If

the charter school and its sponsor cannot agree on the

modification, then the procedure for review, outlined in section

1002.33(6)(h) becomes appropriate. In contrast, a "high -

performing" charter school can obtai n consolidation without a

sponsor approval or subsequent appeal to DOAH. Consequently,

the legislative enactment of section 1002.331 does not evidence

a legislative intent limiting the consolidation of charters to

schools to high - performing charter school s.

23. The record clearly and undisputedly showed that

allowing Trinity School to combine the two charter schools into

one charter will save approximately $125,000 .00, a year. These

savings will be in the reduction of duplication of reports and

staff r esources. Ironically, the School Board argues that

Trinity is not entitled to consolidation of the two charters,

which will save money, because Trinity has had past financial

difficulties. Consequently, even viewing the School Board's

actions under an ab use of discretion standard, it is clear that

no reasonable person would deny the consolidation of the two

charters.

24. Section 1002.33(6)(h) provides that the A dministrative

L aw J udge shall award reasonable attorneys' fees and costs to

the prevailing par ty, and administrative costs. Because the

undersigned finds that Trinity School has met its burden , it is

the prevailing party and is entitled to an award of reasonable

attorneys Ó fees and costs under the statute.

Therefore, based on the foregoing, it is ORDERED that:

1) Tampa School Development Corporation be allowed to

consolidate its two charters for the Trinity Lower School for

Children and Trinity Upper School into one charter for all

purposes;

2) Tampa School Development Corporation be awarded

att orney Ós fee s and costs in bringing the administrative

proceedings that shall be paid by the Hillsborough County School

Board;

3) The Hillsbor o ugh County School Board shall pay the

costs of the administrative hearing as required by section

1002.33(6)(h); a nd

4) The parties are directed, within 20 days of the date on

this Final Order, to meet and, if able to agree, provide a

stipulation conce rning reasonable attorneys' fees and costs for

the administrative proceeding. If parties are unable to reach

an agre ement as to reasonable attorney Ó s fees and costs, then

the parties shall inform the undersigned and the undersigned

shall set an evidentiary hearing on the disputed issue.

DONE AND ORDERED this 2 5 th day of October , 2011 , in

Tallahassee, Leon County, Flo rida.

S

THOMAS P. CRAPPS

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 2 5 th day of October , 2011 .

ENDNOTES

1/ Pending the appeal before DOAH, the legislature amended

section 1002.33, with the amendments effective July 1, 2011.

These amendments did not change or edit the appeal contained in

section 1002.33(6)(h). Because the instant case involves a

statute which provides an appeal right and scope of review, the

undersigned will use the 2010 version of the statute. See Fogg

v. Southeast Bank, N.A. , 4 73 So. 2d 1352, 1353 - 54 (Fla. 4th DCA

1985)("Generally, statutes operate only prospectively as they

might otherwise impinge upon vested rights or create new

liabilities. On the other hand, statutes relating to remedies

or procedure and including forfeitur es operate retrospectively

in the sense that all pending proceedings, including matters on

appeal, are determined under the law in effect at the time of

decision rather than that in effect when the cause of action

arose or some earlier time. In either eve nt, whether the

statutory change is substantive or procedural, a clear statement

of legislative intent may, under appropriate circumstances,

determine whether the amendment is to have retroactive effect."

Here there is no legislative statement that the am endments to

section 1002.33 , would be applied retroactively to enactment.

Therefore, all references to section 1002.33 , shall be to the

2010 version of the statute.

2/ Generally, an appellate court will not review a case that is

not ripe for review. In the instant case, the record shows that

the Superintendent for the School Board informed Trinity School

that the superintendent would not recommend the consolidation to

the School Boardinity School initiated the mediation

procedure set out in sect ion 1002.33(6)(h , ) with the

Commissioner of Education. After conducting the mediation, the

Commissioner entered an impasse between the partiesinity

School initiated the appeal to DOAH. The record here does not

show that the School Board made a final decision denying Trinity

School's request to consolidate the two charters. Consequently,

it appears that there is no final decision to "appeal" and the

issue is not ripe for review. The statute, however, is not

clear, and it allows an "appeal" from the dispute without

requiring a final decision by the School Board. As a result,

the "appeal" comes to DOAH without a factual record to review,

or a final decision. The School Board's position before DOAH

has been consistent that it has discretion to deny th e

consolidation. Based on its defense in DOAH, it would appear

that the School Board would be consistent and deny Trinity's

request to consolidation, if the request were formally submitted

to the School Board. Therefore, based on the parties' conduct

the undersigned treats the case as ripe for the review as set

out in section 1002.33(6)(h).

3/ The School Board has challenged the constitutionality of

section 1002.33(6)(h) , as violating Article IX, section 4(b) of

the Florida Constitution. Because th e constitutionality of the

statute may not be addressed in an administrative proceeding,

the undersigned does not address this issue. See Key Haven

Associated Enterprises, Inc. v. Bd. of Trustees Internal Trust

Fund , 427 So. 2d 153 (Fla. 1983).

COPIES F URNISHED :

Stephanie Alexander, Esquire

Tripp Scott, P . A .

200 West College, Suite 216

Tallahassee, Florida 32301

LaKisha Kinsey - Sallis, Esquire

Thompson, Sizemore, Gonzalez,

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33602

Patrick Knight Wiggins, Esquire

Patrick K. Wiggins, P.A.

Post Office Drawer 1657

Tallahassee, Florida 32302

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

MaryEllen Elia , Superintendent

901 East Kennedy Boulevard

Tampa, Florida 33602 - 3408

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statute s. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, acc ompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendi tion of the order to be reviewed .