12-000887 Renaissance Charter School, Inc. vs. Leon County School Board Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, August 13, 2012.

Summary: School Board's requirement that the charter contain an enrollment deadline does not violate charter school's flexibility or equitable treatment as contemplated by s. 1002.33(6), and is not an unadopted rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENAISSANCE CHARTER )

SCHOOL, INC., )

)

Petitioner, )

) Case No. 1 2 - 0 887

vs. )

)

LEON COUNTY SCHOOL BOARD , )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on April 3 0 ,

20 12 , in Tallahassee , Florida, before Barbara J . Staros ,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Stephanie Alexander , Esquire

Tripp Scott , P.A.

Suite 21 6

200 West College Avenue

Tallahassee , Florida 3 2301

For Respondent: Opal McKinney - Wi lliams , Esquire

A usley and McMullen

123 S o u th Calhoun Street

Tallahassee , Florida 3 2 30 2

STATEMENT OF THE ISSUE

The issue is whether the School Board has the authority to

include a provision in a charter that limits a charter school's

annual capacity to the number of applications received as of a

date certain (Ma rch 1) and whether that proposed enrollment cap

is legal under Florida law.

PRELIMINARY STATEMENT

On August 1, 2011, Petitioner, R enaissance Charter School,

Inc. (RCA), submitted an applicatio n to open a new charter

school in Leon County. The charter application was considered

by the Leon County School Board ( School Board ) at its

September 27, 2011 , regular board meeting . In late November

2011, the parties began negotiating the terms of the c harter .

Following a series of correspondence, t he parties met in January

2012 to discuss contract issues .

RCS requested mediation to resolve outstanding contract

issues. Following two days of mediation, the parties were able

to resolve all outstanding issues except for the issue as to an

enrollment deadline of March 1. The mediator submitted a report

to the Department of Education informing that the parties

reached agreement on all but one issue, and an impasse was

declared. Pursuant to section 1002. 33(6)(h), Florida Statutes,

the Department declared that the negotiation was at impasse.

On March 12, 2012, RCA filed a Notice/Request for

Initiation of Proceeding with the Division of Administrative

Hearings. A scheduling conference was held by telephon e on

March 19, 2012. Upon agreement of the parties, a Notice of

Hearing was issued sche duling the hearing for April 30, 2012.

The hearing took place as scheduled.

Neither party presented the testimony of any witnesses.

The parties offered Joint Exhibit s 1 through 6, which were

admitted into evidence .

The hearing was not transcribed. Petitioner filed an

unopposed Motion for One - Day extension to File Proposed Orders,

which was granted.

Petitioner timely filed a Proposed Final Order and

Re spondent tim ely filed a Proposed Recommended Order, which were

considered in the preparation of this Recommended Order.

Petitioner simultaneously filed Late - Filed Exhibits. Respondent

filed a Motion to Strike Late - F iled E xhibits, to which

Petitioner filed a reply. U pon consideration, the motion to

strike is granted . All references to the Florida Statutes are

to the 2011 version, unless otherwise indicated.

FINDINGS OF FACT

Stipulated Fa cts 1 /

1. RCA is a Florida not - for - profit corporation organized

for the purpos e of governing and operating charter schools.

2 . The School Board is a public body corporate, organized

and existing under the Florida Constitution and Florida Statutes

to govern the provision of public education to students in Leon

County.

3 . On August 1, 2011, RCA submitted an application to

replicate a high - performing charter school to the School Board,

requesting approval of a start - up or new charter school in Leon

County based upon a high - performing charter school already in

existence.

4 . On September 20, 2011, School Board staff sent written

correspondence to the charter school informing them of several

issues with its application, and that approval of their

application would be contingent upon the fulfillment of

stipulations set for th in the correspondence.

5 . In paragraph 11 of the correspondence, the School Board

informed the charter school that it would be required to

"provide documentation to Leon County Schools by March 1, 2012,

regarding the number of students who have comp leted official

applications at the school, and this number will be utilized to

set enrollment for the 2012 - 2013 school year."

6. RCS responded to the September 11 letter through email

on September 23, 2011, stating that most of the issues outlined

ther ein would be worked out during contract negotiations.

School Board staff responded by reiterating that, for those

items to be handled through the charter, the application would

not be approved "as is."

7 . The charter application was considered at its

September 27, 2011 , regular board meeting, and was unanimously

approved, "contingent upon amendments to the application and

compliance with deadlines as outlined in the [ September 20 ]

letter to [ RCA ] .

8 . RCS believed that, under the charter school statutes

set out at sections 1002.33 and 1002.3311, Florida Statutes, and

related regulations, the School Board was not legally empowered

to conditionally approve a high - performing charter application,

but instead could only legally approve or deny the ap plication

under limited circumstances. RCS communicated this position to

the School Board during the charter negotiation process at the

parties' meeting to negotiate the charter in January 2012.

9 . In late November 2011, the parties began negotiating

the terms of the charter and were ultimately able to reach

agreement on all issues except the March 1 enrollment cap issue

that is the subject of this proceeding.

10 . On December 19, 2011, the School Board received a

response from RCS to the cor respondence of September 20 which

stated "[t]he school's board will either have documentation that

862 students have enrolled in the school and in Genesis by

August 1, 2012, or will provide documentation of available

funding and an approved budget that wil l fully support the

program described in the school's application at the number of

students enrolled in the school and in Genesis by August 1,

2012. The school will provide documentation to Leon County

Schools by March 1, 2012, regarding the number of stu dents who

have completed official applications to the school, and this

number will be utilized to set enrollment for the 2012 - 2013

school year." However, at no time did RCS agree to cap the

enrollment for the proposed school as of the number of

applicatio ns received by March 1 of any given year.

11 . In Janu ary 2012, representatives for the parties met

to work through specific terms in the proposed charter. The

parties were unable to reach agreement on the March 1 enrollment

deadline language .

12 . T he language in the proposed charter relating to the

disputed issue states in pertinent part, "[t]otal annual

enrollment for each year shall be determined by the total number

of applications received by March 1 of each year."

13 . RCS submitted a request f or mediation in accordance

with section 1002.33(6)(h). The parties participated in two

days of mediation, assisted by Thomas Bateman, Supreme Court

Certified Circuit Court Mediator, and were able to resolve all

outstanding issues except for the issue rela ting to the March 1

enrollment deadline. Mr. Bateman submitted a mediation report

to the Florida Department of Education declaring impasse as to

this one issue.

14 . On March 12, 2012, RCS filed a Notice/Request for

Initiation of Proceedings with the Di vision of Administrative

Hearings (D OAH ) .

15 . RCS has broken ground on, and is currently in the

process o f constructing, a multi - million - dollar school facility

in Leon County to house the school. Construction is currently

scheduled to be completed as of late summer 2012.

16 . RCS operates a number of other charter schools

throughout the state and no other school district in which it

owns and operates charter schools is enrollment limited to a

March 1 deadline.

17 . The School Board has granted charte rs to a number of

other charter schools in Leon County. Currently, there are five

charter schools operating in Leon County. All current charters

contain the enrollment deadline provision at issue in this

matter.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject m atter of this

case pursuant to s ection 10 02 . 33 ( 6 ) (h) , Florida Statutes . The

conditions precedent under section 1002.33(6)(h) for invoking

DOAH jurisdi ction have been met.

19 . The Florida Legislature authorized the creation of

charter schools as part of the state's program of public

education in 1996 . Ch. 96 - 185, Laws of Fla.

2 0 . The current l aw concerning charter schools is found in

chapter 1002, Florida Statutes. Section 1002.33(6) , which

governs this proceeding, reads in pertinent part :

(6) APPLICATION PROCESS AND REVIEW. -

Charter school applications are subject to

the following requirements:

(h) The terms and conditions for the

operat ion of a charter school shall be set

forth by the sponsor and the applicant in a

written contractual agreement, called a

charter. The sponsor shall not impose

unreasonable rules or regulations that

violate the intent of giving charter schools

flexibility to meet educational goals. The

sponsor shall have 60 days to provide an

initial proposed charter contract to the

charter school. The applicant and the

sponsor shall have 75 days thereafter to

negotiate and notice the charter contract

for final approval b y the sponsor unless

both parties agree to an extension.

The proposed charter contract shall be

provided to the charter school at least 7

calendar days prior to the date of the

meeting at which the charter is scheduled to

be voted upon by the sponsor. Th e Department

of Education shall provide mediation

services for any dispute regarding this

section subsequent to the approval of a

charter application and for any dispute

relating to the approved charter, except

disputes regarding charter school

application denials. If the Commissioner of

Education determines that the dispute cannot

be settled through mediation, t he dispute

may be appealed to an administrative law

judge appointed by the Division of

Administrative Hearings. The administrative

law judge may r ule on issues of equitable

treatment of the charter school as a public

school, whether proposed provisions of the

charter violate the intended flexibility

granted charter schools by statute, or on

any other matter regarding this section

except a charter sc hool application denial,

a charter termination, or a charter

nonrenewal and shall award the prevailing

party reasonable attorney's fees and costs

incurred to be paid by the losing party.

The costs of the administrative hearing

shall be paid by the party w hom the

administrative law judge rules against.

(emphasis added) .

Whether a final or recommended order is contemplated

21 . A threshold issue addressed by the parties is whether

or not the above - quoted language confers final order authority

on administ rative law judges in this proceeding . Petitioner

argues that a final order is appropriate, whereas the School

Board argues that a recommended order is appropriate. The

statute does not specify whether the order of the administrative

law judge is a final or a recommended order .

22 . T he legislature has expressly conferred final order

authority to administrative law judges in other contexts. See

§ 1003. 57 (1)(b). ( In due process hearings concerning school

boards and exceptional students, t he decision of the

administrative law judge is final, subje ct to further referenced

review ); and § 120.56(1)(e) (The administrative law judge's

order shall be final agency action in challenges to agency

rules). In another subsection of section 1002.33, the

legislature clearly describes the State Board of Education's

decision to approve or reject the sponsor's denial of an

application as final, and states, "The State Board of

Education's decision is a final action subject to judicial

review in the district court of appea l." § 1002.33(6)(d), Fla.

Stat. The legislature did not similarly confer authority on the

administrative law judge in s ection 1002.33(6)(h). Moreover,

the word "final" is used in section 1002.33(6)( h ) only in

reference to the school board's final approv al following a 75 -

day period of negotiation.

23. The School Board argues, and the undersigned agrees,

that the doctrine of statutory construction , expressio unius est

exclusio alterius , applies. "Under the principle of statutory

construction, express io unius est exclusio alt erius , the mention

of one thing implies the exclusion of another." Young v.

Progressive Southeastern Ins. Co. , 753 So. 2d 80, 85 (Fla. 2000)

( quoting Moonlit Waters Apartments, Inc. v. Cauley , 666 So. 2d

898, 900 (Fla. 1996) ) .

2 4 . In determining the legislative intent of authorizing

an appeal to D O AH, it is helpful to examine the legislature's

use of the term "appealed" contextually within the charter

school statute. S ection 1002.33(6) provides "an appeal" process

to the Stat e Board of Education concerning the denial of a

charter application, a termination, or nonrenewal. Section

1002.33(6) sets out the "appeal" procedure and provides that the

dispute is forwarded to an independent fact finder, the Charter

School Appeal Commi ssion, to provide w ritten recommendation s to

the State Board of Education. The State Board may then either

accept or reject the written recommendation. The State Board

will in turn issue a written decision which must be implemented

by the sponsor. The S tate Board's decision is a "final action

subject to judicial review in the district court of appeal."

§ 1002.33(6)(d). In essence, these procedures set out by the

legislature for an appeal of a sponsor's decision to deny a

charter mirror the APA proced ures when a person challenges an

agency decision that affects that p erson's substantial

interests. See §§ 120.569 and 120.57(1), Fla. Stat.

25 . In both instances, the dispute is forwarded to an

independent trier of fact, who gathers the facts and makes a

written recommendation to the agency. Like the Charter School

Appeal Commission's recommend ations to the State Board of

Education, an administrative law judge renders a recommended

order to the agency, and the agency will either accept or reject

the rec ommended order or portions thereof. The agency will then

enter a final order which is subject to review in the district

court of appeal.

26. After careful consideration of the parties' arguments

and a careful review of the statutes, the undersigned has

concluded that, in the absence of an express grant of final

order authority, the statute contemplates the entry of a

recommended order by the administrative law judge. 2/

27. Harmonizing the charter school statute a nd the

Administrative Procedure Act (APA), the undersigned concludes

that any recommended order entered pursuant to section

1002.33(6)(h) is directed to the school board which is an agency

under section 120.52 and is responsible for the operation of the

public school system, including charte r schools. Consistent

with the APA, the school board will then have final authority

that may be subject to judicial review.

N ature of the Dispute

28. This dispute centers on a provision in the proposed

charter which states that "total annual enrollme nt for each year

shall be determined by the total number of applications received

by March 1 of each year." RCS contends that the School Board is

not permitted under Florida law to require such a provision in

the charter and that the proposed provision li mits charter

school flexibility and choice contrary to the charter school

statute. Petitioner further argues that the proposed March 1

deadline constitutes an unadopted rule.

29. The School Board argues that the March 1 deadline is a

permissible use of i ts home rule power pursuant to section 4(b),

Article IX of the Florida Constitution and section 1001.32(2) ,

and that the deadline is reasonably designed to help the School

Board appropriately plan for staffing at affected schools. The

home rule power refe renced by the School Board codified in

s ection 1001.32(2), Florida Statutes, provides , "In accordance

with the provisions of s. 4(b) of Art. IX of the State

Constitution, district school boards shall operate, control, and

supervise all free public schools in their respective districts

and may exercise any power except as expressly prohibited by the

State Constitution or general law."

30. Section 1002.33(6)(h) prohibits school boards from

imposing unreasonable rules or regulations that violate the

"intent of giving charter schools greater flexibility to meet

educational goals." This language is not an express prohibition

to the inclusion of an enrollment deadline. 3/

31. Under the charter school law, the capacity of a

charter school is determined annually by the governing board of

the charter school in conjunction with the sponsoring school

board . § 1002.33(10)(h). It is noted that in section

1002.33(10)(i), relating to the capacity of high - performing

charter schools, the school must inform the sponsor o f "any

increase in enrollment" by March 1 of the school year preceding

the increase in enrollment. § 1002.33(10)(i). 4/

3 2 . The charter school statute affords the parties the

opportunity to negotiate terms of the charter or contract. The

statute does no t require that all school districts agree to

identical terms. The enrollment deadline is one element of the

contract to be negotiated. The undersigned concludes that the

inclusion of a March 1 enrollment deadline in the proposed

charter is not unreasonab le.

33 . Further, this enrollment deadline does not violate the

intended flexibility granted charter schools in meeting

educational goals. Educational goals include reading

proficiency, testing scores, promotion, etc. See §§

1002.33(5)(b) l. e. and 1 000.03(5), Fla. Stat. The enrollme nt

deadline provides a number f r o m which both parties are able to

plan staffing requirements. All current charter schools in Leon

County contain the March 1 deadline.

34 . Petitioner further argues that the School Board 's

imposition of the enrollment deadline violates section

1002.33(5) (b) 1.d ., which states that the "sponsor's policies

shall not apply to a charter school unless mu tually agreed to by

both the sponsor and the charter school ." This provision 5 / has

been int erpreted by the Fourth District Court of Appeal in

Imhoptep - Nguzo Saba Charter School v. Dep artment of Educ ation

and Palm Beach County Sch ool B oar d , 947 So. 2d 1279, 1282 (Fla.

4 th DCA 2007), as follows:

While the subject provision was clearly

aimed at g iving charter schools some measure

of academic and administrative freedom, we

do not read this provision to prohibit the

School Board from adopting and enforcing

policies related to the creation, renewal or

termination of the charter schools they

sponsor. This is true because the

legislature has delegated primary decision -

making authority to the school boards over

these basic decisions.

35. The c ourt in Imhotep - Nguzo used as an example of a

school board "policy" its sick leave policy for teachers, not

matters concerning the creation of charter schools. The curren t

wording of section 1002.33(5) ( b )1.d., states that the school

board policies shall not apply to a charter school unless

mutually agreed to by both parties. Applying the reasoning of

the c our t, the undersigned is not persuaded that the enrollment

deadline is a school board policy as contemplated by section

1002.33(5) . Even if it were, i n typical contract negotiations,

if two parties cannot agree to terms of a contract, they

continue to negoti ate or they walk away if no agreement can be

reached.

36 . Finally, RCA argues that the S chool B oard's imposition

of a March 1 enrollment deadline constitutes an unadopted rule.

This argument becomes circular in that, as RCA points out, the

School Board 's policies shall not apply to a charter school

unless mutually agreed to by both the sp onsor and the charter

school." § 1002.33(5)(b)1.d. Therefore, by law, any rule

adopted by the School Board regarding enrollment deadlines would

not apply to the appli cant charter school unless it is agreed to

by the parties.

37. Section 120.52(1)(16) defines a rule as "each agency

statement of general applicability that implements, interprets,

or prescribes law or policy or describes the procedure or

practice requir ements of an agency. . . . "

38. B ecause the parties stipulated to all facts presented,

there are few facts in the record on which to base a conclusion

that this contractual provision constitutes an agency statement

defined as rule. Without further evidence, the undersigned will

not equate routine practice with an unadopted rule. While

noting that the parties stipulated that all current charter

schools in Leon County have a March 1 enrollment dea dline, that

evidence is insufficient to establish that this is a policy of

general applicability that cannot be negotiated. See generally

Ag. for Health Care Admin. v. Custom Mobility, Inc. , 995 So. 2d

984 (Fla. 1DCA 2008) (court discusses what constitutes an agency

statement of general applicability) .

39. Based on the foregoing, the undersigned finds that the

School Board's requirement that the charter contain a March 1

enrollment deadline does not violate the charter school's

flexibility or equitable treatment as contemplated by section

1002.33(6) and do es not constitute an unadopted rule. This case

comes to DOAH in an unusual procedural posture. That is, the

parties are in the midst of a contract negotiation that has not

been resolved. Consequently, the undersigned recommends that

the School Board may include a March 1 enrollment deadline for

RCS in the charter. Of course, RCS, as a party to any contract

negotiation, is free to reject the charter contract, if it

chooses not to become a charter school in Leon County. And, the

parties may choose to con tinue to negotiate this issue.

40. Section 1002.33(6)(h) provides that the administrative

law judge shall award reasonable attorneys' fees and costs to

the prevailing party, and administrative costs. Because this is

a Recommended Order, there is no prev ailing party at this time.

Jurisdiction is retained to determine the award of fees and

costs at the appropriate time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Leon County School Bo ard issue a final order

finding that the School Board's proposed contractual provision

proposing a March 1 enrollment deadline does not violate the

charter school law and does not constitute an unadopted rule .

DONE AND ENT ERED this 1st day of June , 20 1 2 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 st day of June , 20 1 2 .

END NOTE S

1/ In this case, the parties have stipulated that there are no

disputed issues of material fact, which would ordi narily result

in the administrative law judge relinquishing jurisdiction to

the agency. See s. 120.57(1)(i), Fla. Stat. However, in light

of the express grant of jurisdiction set forth in section

1002.33(6)(h) and the fact that the parties did not disput e the

review by DOAH despite the lack of a factual dispute,

relinquishment is not appropriate here.

2/ It is noted that in another case held pursuant to section

1002.33(6)(h), the administrative law judge issued a Final

Order. Tampa School Development Corp., d/b/a Trinity School for

Children , Case No. 11 - 2183 (Fla. DOAH Oct. 25, 2011). This case

is currently on appeal to the Second District Court of Appeal,

Case No. 2D11 - 5811.

3/ This conclusion is based solely on the language of section

1001.32. A ny action taken by the School Board pursuant to its

constitutional power is beyond the scope of matters on which an

administrative law judge may base a decision. See Decker v.

Univ. of West Florida , No. 1D11 - 5021 (Fla. 1st DCA Apr . 24,

2012) ("The [Admini strative Procedure] Act limits the definition

of an agency to persons or entities "acting pursuant to powers

other than those derived from the constitution. § 120.52(1),

Fla. Stat. The significance of this limitation is clear: when

an officer or agency is exercising power derived from the

constitution, the resulting decision is not one that is made by

an agency as defined in the Administrative Procedure Act.")

Thus, this order will not address the issue of whether the

action by the School Board comports with its constitution ally

derived powers.

4 / In this case, the proposed charter school does not meet the

definition of a high performing charter school as contemplated

by section 1002.331(1)(a), Fla . Stat . Rather, it is an effort

to replicate a high per forming charter school currently in

operation in another part of the state.

5 / The court's opinion references section 1002.33(5)(b)4,

Fl orid a Stat utes (2005) , which at that time read , "The sponsor's

policies shall not apply to a charter school."

COPIE S FURNISHED :

Opal L. McKinney - Williams , Esquire

Ausley and McMullen

123 South Calhoun Street

Post Office Box 391

Ta llahassee , Florida 32602

Stephanie Alexander , Esquire

Tripp Scott, PA

200 West College Avenue, Suite 216

Tallahassee, Florida 32301

Jack ie Pons , Superintendent

Leon County School Board

2527 West Pensacola Street

Tallahassee , Florida 32 304 - 2998

Charles M. Deal , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ge rard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.