16-005126 Renaissance Charter School, Inc. vs. The School Board Of Palm Beach County, Florida Status: Closed DOAH Final Order on Tuesday, July 11, 2017.

Summary: School Board Policy 2.57 found valid. Portions of the May 27, 2015, amendments to policy 2.57 invalid in violation of section 120.52(8)(c). Petitioner failed to demonstrate violation of 1002.33(6)(h).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENAISSANCE CHARTER SCHOOL,

INC.,

Petitioner,

vs. Case Nos. 16 - 5126

16 - 5157RX

THE SCHOOL BOARD OF PALM BEACH

COUNTY, FLORIDA,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 25 , 201 7 , by video teleconference at sites in

West Palm Beach and Tallahassee, Florida, before Administrative

Law Judge June C. McKinney of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Stephanie Alexander , Esquire

Tripp Scott, P . A .

200 West College Avenue, Suite 216

Tallahassee , Florida 33301

For Respondent: Sean Fahey , Esquire

School Bo ard of Palm Beach County

Post Office Box 19239

West Pa l m Beach, Florida 33416

STATEMENT OF THE ISSUES

Whether the School Board lacked the delegated legislative

authority to promulgate School Board Policy 2.57.

Whether the challenged portions of School Board Policy 2.57

violate certain provisions of the charter school statute,

section 1002.33, Florida Stat ut es, and State Board Rule s , as

outlined in Petitioner ' s Amended Rule Challenge Petitions.

Whether the Inn ov ative R ubric Policy 2.57 should be

invalidated for enlarging, modifying, and/or contravening the

charter statute and also the adopted State Board E ducation

rule(s) and form(s).

Whether the budget worksheet referenced in School Board

Policy 2.57 is an unado pted rule because it was not attached

or incorporated into School Board Policy 2.57 and / or was never

specifically adopted by rule.

Whether certain provisions of School Board Policy 2.57

violate section 1002.33(6)(h) as outline d in Petitioner ' s

Amended Rule Challenge and Charter Petitions .

Whether the prevailing party is entitled to attorneys '

fees and costs pursuant to section 1002.33(6)(h) and / or

section 120.595, Florida Statutes.

PRELIMINARY STATEMENT

This proceeding was initiated on September 7, 2016,

when Renaissance Charter School, Inc. ("Renaissance" or

" Petitioner " ) , filed two petitions within one document, one

under section 120.56(3) and the other under section 1002.33(6)(h)

against The School Board of Palm Beach County, Flori da ("School

Board" or "Respondent") . The cases were opened as separate files

at the Division of Administrative Hearings ( " DOAH " ) . B y O rder

dated September 28, 2016 , the cases were consolidated .

On December 9, 2016, a telephonic hearing was held on the

School Board ' s m otion to d ismiss the petition brought pursuant to

section 1002.33(6)(h) , which the undersigned denied by O rder

dated December 9, 2016 .

R enaissance subsequently sought leave to amend its

petitions, which the undersigned granted by O rder dated

December 9, 2016. The operative pleading in this case is now

R enaissance ' s Amended Petition Seeking an Administrative

Determination that Adopted School Board Policy 2.57 i s Void for

Lack of Delegated Legislative Authority and/or Enlarging,

Mod ifying, and/or Contravening the Charter Statute and Amended

Petition U nder Sec[tion] 1002.33(6)(h), Florida Statutes, filed

on De cember 19, 2016. Renaissance ' s amended p etition contains a

Rule Challenge Petition ( " Rule Challenge " ) brought under

section 120.56(3), and a n Amended Petition/Notice/Request for

Initiation of Proceedings under Section 1002. 33(6)(h) of the

Charter Statute ( " Charter Petition " ). The School Board filed its

Answer to Petitioner's Amended Petition and Incorporated

Memorandum of Law on January 13, 2017.

On January 20, 2017 , t he parties filed a Joint Pre - h e aring

Stipulation. After being continued several times at the request

of the parties, t he matter proceeded to a f inal h earing on

January 25, 2017. The parties agreed that they would not call

any witnesses and would present only documentary evidence and

argument. The undersigned admitted Renaissance ' s Exhibits 1

through 11 and 15, and the School Board ' s Exhibits 2 through 4.

The undersigned also too k official recognition of the current

version of Florida Administrative Code Rule 6A - 6.0786 a nd three

State Board of Education ' s incorporated f orms (IEPC - M1, IEPC - M2,

and IEPC - SC).

The Transcript of the f inal h earing was filed with DOAH

on February 15, 2017. The parties originally agreed to multiple

stages of post - hearing briefing, but later revised the schedule

so that they would only submit proposed orders by April 15, 2017 ,

(which was a Saturday, meaning the proposed orders were due o n

April 17, 2017), with the option to file amended proposed orders

within 10 days thereafter, or by April 27, 2017, subsequently

extended through May 1, 2017. The parties ' proposed f inal o rders

were timely filed and have been considered in the preparation of

this Final Order.

Unless otherwise indicated, citations to the Florida

Stat ut es refer to the 2016 Florida Statutes.

FINDINGS OF FACT

1. Renaissance is a not - for - profit Florida corporation.

2. Rena issance currently operates six charter schools in

the School District of Palm Beach County ( " School District " )

pursuant to charters issued by the School Board: (1) Renaissance

Charter School at Cent ral Palm; (2) Renaissance Charter School

at Cypress; (3) Renaissance Chart er School at Palms West;

(4) Renaissance Chart er School at Summit; (5) Renaissance Charter

School at Wellington; and (6) Renaissance Charter School at West

Palm Beach.

3. The School Board is the "sponsor" of the six schools

operated by Renaissance in the School Distr ict for purposes of

section 1002.33 .

4. The six schools operated by Renaissance are public

schools, by virtue of their status as charter schools, under

section 1002.33(1 ) .

5. Chart er Schools USA serves as the education services

provider or management company for all six of Renaissance's

schools in the School District.

6. On April 1, 2015, the School Board held a public

w ork shop on the subject of charter schools, including proposed

revisions to School Board Policy 2.57 ( " Policy 2.57 " ) entitled

" Charter Schools. "

7. After the w orkshop, the School Board reviewed proposed

r evisions to the rule, Policy 2.57 , at a noticed public meeting

on April 22, 2015, an d approved development of the p olicy.

8. On May 27, 2015, at a noticed public meeting, the School

Board approved adoption of revised Policy 2.57 .

9. The May 27, 2015, amendments to Policy 2.57 required ,

among other thi n gs, that charter schools meet a standard beyond

the status quo for " innovative learning methods , " mandated that

every charter contract contain a provision requiring 51 percent

of the charter school governing board members to reside within

Palm Beach County , and mandated that every charter contract

contain a provision precluding new charter schools fro m being

located in the vicinity of a district - operated school that has

the same grade levels and programs .

10. The May 27, 2015 , amendments to Policy 2.57 also

included an attached Innovative Policy Rubric 2.57 , which

contained the innovative definition and additional standards of

innovation which charter school applicant s must satisfy.

11. The May 27, 2015, amendments to Policy 2.57 also

required a completed budget worksheet i n the format prescribed by

the School Board from each charter school applicant .

1 2 . The "budget worksheet" referenced in Policy 2.57 is the

"Budget Template Tool" devel oped by the Florida Char ter Support

Unit.

13 . The "budget worksheet" referenced in Policy 2.57 was

not specifically identified in Policy 2.57 or attached thereto

when it was adopted.

14 . The School District requires use of the Budget Template

Tool in order to provide charter school applicants notice about

everything that is required to prepare a budget and to ensure

that the budget includes all necessary i nformation.

15 . Charter school applicants who do not use the Budget

Template Tool often f ail to provide all of the information

required to be included in the budget.

16 . The School Distr ict will review an applicant's budget

even i f it is not submitted us ing the Budget Template Tool.

17 . Failure to use the Budget Template Tool, in and of

itself, will not be a factor in the rating of the "Budget"

section of an application or the overall recommendation on an

application.

18 . On August 3, 2015, Renaissance submitted its

application for Renaissance Charter High School of Palm Beach to

the District's Charter Schools Department.

19 . The application for Renaissance Charter High School of

Palm Beach is the only charter application Renaissance has filed

in the Sc hool District since the revised Policy 2.57 was adopted

on May 27, 2015.

20 . O n or around August 18, 2015 , Renaissance r equested

that the Florida Depart ment of Education ( " F DOE " ) mediate its

dispute over the amendments to Policy 2.57.

21 . The School Board declined F DOE's request to mediate the

dispute.

22 . O n September 8, 2015, Commissioner of Education Pam

Stewart issued a letter to both Renaiss ance and the School Board

confir ming that the dispute could not be settled through

mediation a nd providing Renaissance with permis sion to bring its

dispute to DOAH .

23 . The District Superintendent recommended that the

application for Renaissance Charter High School of Palm Beach be

denied and placed it on the consent agenda for the School Board's

November 4, 2015 , public meeting, with one of the reasons being

that the application "failed to meet indicators of School Board

Policy 2.57 innovative rubric."

24 . At the November 4, 2015 , meeting, after deliberation,

the School Board voted to deny the application.

25 . In its letter dated November 13, 2015 , denying the

charter application of the proposed Renaissance Charter High

School of Palm Beach, the School Board relied, in par t, on

Policy 2.57 as grounds for denial.

26. On September 7, 2016, Petitioner filed a consolidated

challenge that was amended on December 20 , 2016 . Petitioner is

challenging the School Board ' s adoption and amendments of May 2 7 ,

2015, to Policy 2.57 in the Rule Challenge and asserting a

violat ion of the flexibility granted to charter schools for the

amended provisions in the Charter Petition .

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the subject matter of this

consolidated proceeding and of the parties thereto pursuant to

section s 120.56(3) and 1002.33(6)(h) , Florida Statutes (2016).

28. T h e first part of this consolidated proceeding is a

challenge to existing Policy 2.57 . In a challenge to an existing

rule, the " petitioner has [the] burden of proving by a

preponderance of the evidence that the existing rule is an

invalid exercise of delegated legislative authority as to the

objections raised. " § 120.56(3)(a), Fla. Stat. The standard of

review is de novo. § 120.56(1)(e), Fla. Stat.

29. The starting point for determining whether an existing

rule is invalid is section 120.52(8), in which the legislature

defined the term " invalid exercise of delegated legislative

authority . " Pertinent to this case are the following provisions

Petitioner al leges were deficiencies for the Rule Challenge :

A proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

§ 120.52(8), Fla. Stat.

3 0 . The term " law implemented " is defined to mean " the

language of the enabling statute being carried out or interpreted

by an agency through rulemaking . " § 120.52(9), Fla. Stat.

Whether the School Board Exceeded Its Authority

31 . Policy 2.57 establishes standards and criteria for

charter schools. Renaissance contends that Policy 2.57 is an

invalid exercise of legislative authority because the School

Board lacks requisite statutory authority. Renaissance further

asserts that th e School Board exceeded its authority delegated by

the Florida legislature with Policy 2.57. Renaissance also

maintains that school boards only have a consultation role in

recommending which charter school rules should be passed by the

State Board of Educ ation because section 1002.33(28) provides the

State Board of Education exclusive authority to adopt rules for

charter schools.

3 2 . Section 1002.33(28) provides:

(28) RULEMAKING. Ï The Department of

Education, after consultation with school

districts and charter school directors, shall

recommend that the State Board of Education

adopt rules to implement specific subsections

of this section. Such rules shall require

mini mum paperwork and shall not limit charter

school flexibility authorized by statute.

The State Board of Education shall adopt

rules, pursuant to ss. 120.536 (1) and 120.54 ,

to implement a charter model application

form, standard evaluation instrument, and

s tandard charter and charter renewal

contracts in accordance with this section.

33 . Contrary to PetitionerÓs position that the State Board

of Education has exclusive rulemaking authority for charter

schools, the undersigned is not persuaded that section

10 02.33(28) limits all rulemaking for charter schools to the

State Board of Education. When the language of the statute is

clear and unambiguous, the statute must be given its plain and

obvious meaning. Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984).

Sect ion 1002.33(28) places restrictions on the State Board of

EducationÓs authority to adopt rules and limits the

implementation only to "specific subsections of this section" and

does not allow rulemaking for all subsections. Additionally, the

provision prov ides the State Board of Education three distinct

areas to implement: charter model application form s , standard

evaluation instrument s , and standard charter and charter renewal

contracts by rule.

3 4 . The Fourth District delineated the hierarchy for

scho ol districts in Sch ool Board of Palm Beach C ounty v. Florida

Charter Educ ation Foundation , Inc. , 213 So. 3d 356, (Fla. 4th

DCA 2017). In Charter Educ ation Found ation , the court outlined

that the Florida Constitution creates a hierarchy under which a

school board has local control, but the State Board supervises

the system as a whole. This broader supervisory authority may at

times infringe on a school board's local powers, but such

infringement is expres sly contemplated -- and in fact encouraged by

the very nature of supervision -- by the Florida Constitution.

Id. at 360.

3 5 . The legislature outlined where charter schools fit in

the organizational scheme in which a school board has local

control. "All charter schools in Florida are public schools."

§ 1002.33(1), Fla. Stat. District school boards operate,

control, and supervise all public schools. § 1001.32(2), Fla.

Stat. Additionally, charter schools are "sponsored" by the

district school board in the county in which the district s chool

b oard ha s jurisdiction. § 1002.33(5)(a), Fla. Stat.

3 6 . Renaissance contends that the School Board has exceeded

its grant of rulemaking authority required by sections

120.54(3)(a)1 . and 120.52(8)(b). The term "rulemaking authority

means statutory language that explicitly authorizes or requires

an agency to adopt, develop, establish, or otherwise create any

statement coming within the definition of the term 'rule.'"

§ 120.52(17), Fla. Stat.

3 7 . Sections 1001.41(1) and (2) , Florida Statu t es, are the

statutory authority listed for Policy 2.57. It is important to

note that Policy 2.57 was promulgated , listing statutory

authority , unlike agency rules that typically list rulemaking

authority. The undersigned is not convinced that the definition

and test for "rulemaking authority," under section 120.52(17), is

applicable in this proceeding since rulemaking is not referenced

as the a uthority for Policy 2.57.

38 . The School Board counter argu es that section 1001.41(2)

grants general powers, which include broad rulemaking authority

to determine policies deemed necessary and adopt ion of rules to

supplement State Board of Education rules for the district.

39 . Sections 1001.41(1) and (2) provide:

1001.41 General powers of district school

board. Ï The district school board, after

considering recommendations submitted by the

district school superintendent, shall

exercise the following general powers:

(1) Determine policies and programs

consistent with state law and rule deemed

necessary by it for the efficient operation

and general improvement of the district

school system.

(2) Adopt rules pursuant to ss. 120.536 (1)

and 120.54 to impl ement the provisions of law

conferring duties upon it to supplement those

prescribed by the State Board of Education

and the Commissioner of Education. (Emphasis

added).

40 . At hearing and in the School Board's Proposed Final

Order, Respondent contends that the School BoardÓs power is

only restricted if "expressly prohibited by the State

Constitution or general law." § 1001.32(2), Fla. Stat.

Respondent maintains that the challenged Policy 2.57 was

promulgated pursuant to its broad home rule powers to Ð operate,

control and superviseÑ local schools under Article IX, s ection

4(b) the Florida Constitution , because charter schools are public

schools within a school district subject to the School Board's

constitutional authority and duties.

41 . Section 1001.32(2) is a statutory grant for school

boards coextensive with its constitution al power and provides:

(2) DISTRICT SCHOOL BOARD. Ï 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 .

42 . The School Board further maintains that a school boa rd

is not a state executive - branch agency , but a constitutional

entity and general law, section 1001.41, provides a valid

exercise of authority to adopt charter school rules since no

express prohibition to adopt charter school rules exist s .

43 . Petitioner correctly points out in its Pr oposed Final

Or der that Article IX , s ection 4(b) , was not listed as authority

when Policy 2.57 was adopted. Renaissance also accurately

categorizes the School Board as an educational unit pursuant to

section 120.52(6) and as serts that it is therefore subject to the

APA. It has long been established that school boards are

Ðsubject to the operation of Chapter 120.Ñ Witgenstein v. Sch .

Bd. of Leon Cnty . , 347 So 2d. 1069, 1073 (Fla. 1 st DCA 1977).

4 4 . Section 120.81(1) is entitled Excepti ons and special

requirements, references educational unit s , and provides:

(1) EDUCATIONAL UNITS. -

(a) Notwithstanding s. 120.536(1) and the

flush left provisions of s. 120.52(8),

district school boards may adopt rules to

implement their general powers under

s. 1001.41.

45 . Notwithstanding is defined as "in spite of."

"Notwithstanding." Dictionary.c om, 2017.

http://www.dictionary.com/browse/notwithstanding (6 July 2017).

It follows that the legislature created powers regardless of

sections 120.536 and 120.52(8) for school boards as educational

units to adopt "rules to implement their general p owers , such as

those contained in section 1001.41 ." At the same time, the

legislature provided a school board broad powers to adopt rules

"to implement the provisions of the law conferring duties upon it

to supplement those prescribed by the State Board of Education

and Commissioners of Education." § 1001.41(2), Fla. Stat.

46 . In this matter, Renaissance also maintains Policy 2.57

is invalid because of the School BoardÓs reliance on section

1001.41 and 1001.42 as statutory authority when section

1002.3 3(16)(a) provides that "[a] charter school shall operate

in accordance with its charter and shall be exempt from all

statutes in chapters 1000 - 1013" with exceptions not at issue

here. Petitioner asserts the exemption language demonstrates

that the School Board has exceeded its grant of rulemaking

authority because charter schools are exempt from the statutes

relied on . RenaissanceÓs dependence on section 1002.33(16)(a) is

misplaced because the exemption ensures that only the charter

agreement can control the charter school and prohibits the other

statutes from interfering with the schoolÓs operations. The

legislature excluded chapters 1000 - 1013 to emphasize "its

charter" was the only provision that needed to be followed.

Therefore, the exemption provisi on is limiting what statutes the

charter school must follow while operating.

47 . Respondent accurately claims that its general powers

provide distinct responsibilities for charter schools and can be

found in numerous statutory provisions. The School Boa rd

identifies the statutory language "[t]he sponsor [school board]

may not impose unreasonable rules or regulations that violate the

intent of giving charter schools greater flexibility to meet

educational goals" to demonstrate that the legislature provide d

the school board authority for charter school rules. §

1002.33(6)(h), Fla. Stat.

4 8 . Respondent also relies on the following statutes

that provide school boards the duty and authority to:

receive, review, and decide upon charter school applications,

section 1002.33(6)(b); negotiate charter contracts,

id. section 1002.33(6)(h) and (7)(a); and decide whether

to renew, non - renew, or terminate charters, id. section

1002.33(7)(b), (8)(a), and (8)(d) to support its position that

Policy 2.57 is a valid exercise of legislative authority.

Moreover, the School Board counters that since no express

prohibition exist s in the State Constitution or general law ,

school boards have rulemaking authority f or charter schools under

its general law, section 1001.41.

49 . After a thorough review, the undersigned is not

persuaded that Renaissance met its burden to demonstrate that the

School Board exceeded its legislative authority and violated

section 120.52(8)(b). The legislature provided school boards

authority over public schools, which includes charter schools.

In this proceeding, the record fails to show that the State Board

of Education has exclusive authority over rulemaking for charter

schools. Instead, the evidence demonstrates the School Board has

broad powers, which include rulemaking for charter schools , not

just a consultation role to the State Board of Education.

More over, no evidence was presented to show any express

prohibition in either the Florida Constitution or general law for

school boards to adopt charter school rules as mandated by

section 1001.32(2). Accordingly, the School Board has statutory

authority to p romulgate rules pertaining to charter schools and

it was not shown that Policy 2.57 is an invalid exercise of

delegated legislative authority.

50 . In the Rule Challenge, Renaissance also asserts that

several amendments to Policy 2.57, adopted on May 27, 2 015,

violate certain provisions of the charter school statute, section

1002.33, and illegally enlarge, modify and contravene the charter

school law in violation of section 120.52(8)(c) .

Residency Provision

51 . Renaissance contests the residency provision,

Policy 2.57 ¶ 6 . e . , and contends that it enlarges, modifies and

contravenes section 1002.33(9)( p)2 . of the charter school law in

violation of section 120. 52 (8)(c) .

52 . Policy 2.57¶6 . e . provides:

New, amended and renewal charter agreements,

subject to negotiations, will contain

provision that at least fifty - one percent of

the Governing Board members must reside in

Palm Beach County, Florida.

53 . Section 1002. 33(9)(p)2 . provides:

Each charter school ' s governing board must

appoint a representative to facilitate

parental involvement, provide access to

information, assist parents and others with

questions and concerns, and resolve disputes.

The representative must reside in the school

district in which the charter school is

located a nd may be a governing board member,

a charter school employee, or an individual

contracted to represent the governing board.

If the governing board oversees multiple

charter schools in the same school district,

the governing board must appoint a separate

representative for each charter school in the

district. The representative ' s contact

information must be provided annually in

writing to parents and posted prominently on

the charter school ' s website. The sponsor

may not require governing board members to

reside in the school district in which the

charter school is located if the charter

school complies with this subparagraph.

54 . The School Board ' s counterargument that Policy

2.57¶6 . e . does not contain a mandatory contract term , but is only

proposing an additional provision regarding residency to be

included in the charter agreement negotiation process , is not

persuasive to the undersigned. Section 1002.33 is law

implemented for Policy 2.57. Moreover, se ction 1002.33(9)(p) 2 .

prohibits a residency requirement for the governing board with

the express language , " sponsor may not require , " if the charter

school is complying with the criteria of section 1002.33(9)(p)2 .

Adding the language , " subject to negotiation , " still requires

51 percent residency if the rem ainder of section 1002.33(9)(p) 2 .

terms are met .

55. Even though it has been established that School Board

has broad powers, the legisla ture never intended to provide

school b oard s unbridled reign to do whatever they wanted through

rulemaking. If school b oard s had such unbridled power ,

interpretation of section 1002.33(9) and numerous other statutes

would be meaningless. The crux of this issue is that existing

statutes cannot be i gnored. It is apparent section 120.81(1)(a)

pr ovides a limited exemption to educational units. However, the

provision does not allow the School BoardÓs general authority to

determine policy that modif ies , enlarge s , or contravene s law

under s ection 1001.4 1(1). Instead, section 1001.41(1)

specifically limits the School BoardÓs policies to those

Ðconsistent with state law and rule.Ñ For this reason, section

120.52(8)(c) is applicable in this proceeding. Accordingly,

Policy 2.57¶6.e. is inconsistent with state law, contravenes

section 1002.33(9)(p)2 . by requiring 51 percent residency , and is

invalid in violat ion of section 120.52(8)(c).

Vicinity Clause

56 . Renaissance also challenges the vicinity provision,

Policy 2.57 ¶ 6 . f . , as contravening, enlarg ing , or modif ying the

charter school law section 1002 .33 (7)(a)13 . in violation of

section 120.52(8)(c).

57 . Policy 2.57¶6 . f . provides:

Additionally, these agreements, subject to

negotiations, shall contain a provision that

the charter school Facility cannot be located

in the vicinity of a District - operated school

that has the same grade levels and programs.

58 . Section 1002.33(7)(a)13 . provides :

(7) CHARTER. Ï The major issues involving the

operation of a charter school shall be

considered in advance and written into the

charter. The charter shall be signed by the

governing board of the charter school and the

sponsor, following a public hearing to ensure

community input.

(a) The charter shall address and criteria

for approval of the charter shall be based

on:

* * *

13. The facilities to be used and their

location. The sponsor may not require a

charter school to have a certificate of

occupancy or a temporary certificate of

occupancy for such a facility earlier than

15 calendar days before the first day of

school.

59 . The School Board maintains the vicinity provisio n is

also a proposed contract term to be negotiated based on the

language " subject to negotiations . " The School B oard further

contends that i t can propose additional terms to the standard

charter school contract under section 100 2.33(5)(b)1 . d . and an y

terms a charter school does not want can be stricken during

negotiations if the charter school does n o t agree.

60 . The undersigned rejects the School Board ' s position

because charter school s are only required to inform the sponsor

of the location for the facility pu rsuant to section

1002.33(7)(a)13 . There is no authority for a sponsor to tell a

charter school where the facility shall be located because

charter schools have the freedom to choose its location in

the district . Even rule 6A - 6. 0786, Form IEPC - MI, Model

Application Section 16 , specifies flexibility for charter school

sites by only requesting charter schools provide either the

" proposed facility, including location, size, and layout " or an

explanation of " school ' s facility needs, including desired

location, size, and layout of space. " Accordingly, Policy

2.57¶6 . f . is inconsistent with state law by contravening

section 1002.33(7)(a)13 . and is invalid in violat ion of

section 120.52(8)(c).

Budget Worksheet

61 . Renaissance also challenges the b udget w orksheet,

Policy 2.57 ¶3 . d . ii . A . , as an unadopted rule because it was

neither attached nor incorporated into Policy 2.57 when adopted.

Petitioner claims that the budget w orksheet should have been

adopted separately because it is a form that me e ts the definition

of a rule . S ection 120.52(16 ) define s a rule to " include any

form which imposes any requirement or solicits any information

not specifically required by statute or by an existing rule . "

62 . Policy 2.57¶3 . d . ii . A . provides that a charter school

applicant is required to include " [a] completed budget worksheet

in the format prescribed by the District. "

6 3 . Section 1002.33(6)(a)5 . and (6)(b)2 . provides:

(6) APPLICATION PROCESS AND REVIEW. Ï Charter

school applications are subject to the

following requirements:

(a) A person or entity seeking to open a

charter school shall prepare and submit an

application on a model application form

prepared by the Department of Education

which:

* * *

5. Contains an annual financial plan for

each year requested by the charter for

operation of the school for up to 5 years.

This plan must contain anticipated fund

balances based on revenue projections, a

spending plan based on projected revenues and

expenses, and a description of controls that

will safeguard finances and projected

enrollment trends.

6. Discloses the name of each applicant,

governing board member, and all proposed

education services providers; the name and

sponsor of any charter school operated by

e ach applicant, each governing board member,

and each proposed education services provider

that has closed and the reasons for the

closure; and the academic and financial

history of such charter schools, which the

sponsor shall consider in deciding whether to

approve or deny the application.

* * *

(b) 2. In order to ensure fiscal

responsibility, an application for a charter

school shall include a full accounting of

expected assets, a projection of expected

sources and amounts of income, including

income derived from projected student

enrollments and from community support, and

an expense projection that includes full

accounting of the costs of operation,

including start - up costs.

6 4 . No dispute exists that the budget worksheet referenced

in Policy 2.57 was neither specifically identified in Policy 2.57

nor attached when adopted. However, the School Board justifies

the budget worksheet in Policy 2.57 as a helpful tool prepared by

Florida Charter Support Unit to notify applicants and ensur e

applicants provide all the necessary information required . The

School Board further refutes that the b udget w orksheet impose s

any new re q uirement s or solicit s any informatio n not specifically

required by section 1002.33(6) , existing rule 6A - 6.0786, or Form

IEPC - M1, Model Application Section 20 . Additionally, s ection

1002.33(6), rule 6A - 6.0786, and Form IEPC - M1, request necessary

information to complete a budget such as revenues, expenses,

anticipated fund balances and an explanation of the budget. As

such, the School Board asserts that the Model Application

Section 20: b udget section also requires information from an

applicant regarding its budget that is included in the budget

worksheet.

6 5 . Here, Renaissance has not identified that the

budget worksheet imposes any requirement or solicits any

information not specifically required by a statute or existing

rule. Accordingly, Renaissance has failed to meet its burden to

show the budget worksheet is a " form " within the definition of

rule which require s adopt ion pursuant to rulemaking procedures or

requirements of the APA .

Innovative

6 6 . Petitioner also challenges Policy 2.57 ¶ 3 . d . ii . D . , and

contends that it sets a definition and requires the standard ,

" beyond the status quo , " that is not contained in section 1002.33

and that such a modification violates section 120.52(8)(c) .

67 . Policy 2.57 2.57¶3 . d . ii . D . provides :

D. A detailed and specific description of

how it encourages and implements innovative

learning methods and measurement tools tha t

are innovative.

The School Board defines innovative as

introducing or using new ideas or methods or

having new ideas about how learning methods

can be performed in th i s School District.

Being innovative is about looking beyond what

is currently done well, identifying the great

ideas of yesterday and/or tomorrow and

putting them into practice . T r u e innovative

learning methods are those products,

processes, strategies and approaches that

improve significantly upon the status quo

withi n this geographical area of the School

District, and result in heightened qualities

and outcomes of teaching and learning. The

criteria for making this determination are

set forth on the document that is attached

hereto.

68 . Section 1002.33 (2) ( b ) 3 ., 4 ., and (c)1. provide s :

(2) GUIDING PRINCIPLES; PURPOSE. --

* * *

(b) Charter schools shall fulfill the

following purposes:

* * *

3. Encourage the use of innovative learning

methods

4. Require the measurement of learning

outcomes.

* * *

(c) Charter schools may fulfill the

following purposes:

1. Create innovative measurement tools.

* * *

(5) SPONSOR; DUTIES. Ï

* * *

(b) Sponsor duties. Ï

* * *

1.e. The sponsor shall ensure that the

charter is innovative and consistent with

the state education goals established by

s. 1000.03 (5) .

* * *

4. A Florida College System institution may

work with the school district or school

districts in its designated service area to

develop charter schools that offer secondary

education. These charter schools must

include an option for students to receive an

as sociate degree upon high school graduation.

If a Florida College System institution

operates an approved teacher preparation

program under s. 1004.04 or s. 1004.85 , the

institution may operate no more than one

charter school that serves students in

kindergarten through grade 12. In

kindergarten through grade 8, the charter

school shall implement innovative blended

learning instructional models in which, for a

given course, a student learns in part

through online delivery of content and

instruction w ith some element of student

control over time, place, path, or pace and

in part at a supervised brick - and - mortar

location away from home. A student in a

blended learning course must be a full - time

student of the charter school and receive the

online instr uction in a classroom setting at

the charter school. District school boards

shall cooperate with and assist the Florida

College System institution on the charter

application. Florida College System

institution applications for charter schools

are not sub ject to the time deadlines

outlined in subsection (6) and may be

approved by the district school board at any

time during the year. Florida College System

institutions may not report FTE for any

students who receive FTE funding through the

Florida Educati on Finance Program.

69 . The School Board contends that the sponsor ' s duty

is to ensure tha t the charter school is innovative and to

require that an applicant actually demonstrate that its proposed

school will use innovative learning methods and therefore Policy

2 .57¶3 . d . ii . D . is not invalid for requiring a description of how

the proposed charter school will implement innovative learning

methods . Additionally, the School Board relies on sections

1002.33(2)(b)1 . and 2 . , 1002.33(5)(b)1 .e . , and 1002.33(5)(b)4 .

and contends that the entire statutory scheme must be read

together to decipher all the purposes of charter schools because

the legislative intent is a high standard for charter schools,

which includes the requir ement that an applicant ' s innovative

learning methods " improve significantly upon the status quo. "

The School Board also asserts that The Model Application supports

such authority because it requires applicants to describe how the

school will meet the prescribed purposes for a charter school

found in section 1002.33(2 ) ( b) 3 . , such as " encourage[ing] the use

of innovative learning methods . "

70 . The School Board further contends that it has properly

clarified the standard in a written policy by defining innovative

and providing criteria for how a response will be evaluated in

Policy 2.57¶3 . d . ii . D . and that section 1002.33(6)(a) 7 . 1 / allows

the S chool B oard to request additional information as an addendum

to the application for such a purpose .

71 . Contrary to the School Board ' s position, Policy

2.57¶3 . d . ii . D . e nlarges section 1002.33( 2)(b)4 . and (c)1 . in

that the charter statu t e ' s threshold is only to " encourage " the

use of innovative learning methods , not mandate a standard .

S ection 1002.33(2)(b)4 . and (c)1 . specifically provides a choice

for applicants by using " may " when deciding whether to " create

innovative measurement tools . " However, Policy 2.57¶3 . d . ii . D .

adds new requir e ments inconsistent with state law , which modif y

the terms with the standard mandate , " improve significantly upon

the status quo , " and contravene the charter statute in violation

of section 120.52(8)(c).

I nnovative Rubric Policy

7 2 . Renaissance also advances that t he Innovative

Rubric Policy is illegal because it includes the innovation

definition and adds the illegal innovative standard from

Policy 2.57 ¶3 . d . ii . D addressed in the innovative section above.

73 . The School Board maintains that the rubric is

justified because the charter statute allows it to ask for

additional information from charter school applicants in

section 1002( 6 ) (a)7 . However, i t has already been established in

paragraph 71 above that the requirement standard to " improve

significantly upon the status quo " is invalid and violate s

section 120.52(8)(c) . Since the rubric includes the standard

mandate, the rubric would also add new requirements to the

charter statute section 1002.33(2)(b) 4 . and (c)1 . , which are

inconsistent with state law and contraven e it in violation of

section 120.52(8)(c) .

Paragraph 12

74 . Petitioner ' s contention that paragraph 12 of

Policy 2.57 , the interpretation provision, directly contravenes

section 1002.33(5)(b)1.d. is not persuasive.

75 . Policy 2.57 ¶12 .

In the event that an existing charter school

contract provision is found to be

inconsistent with this policy, the contract

provision prevails , unless the contract

provision is no longer consistent with the

law and the contract indicates that its terms

change based on changes in the law.

76 . Section 1002.33(5)(b)1.d. provides:

d. The sponsor shall not apply its policies

to a charter school unless mutually agreed to

by both the sponsor and the charter school.

If the sponsor subsequently amends any

agreed - upon sponsor policy, the version of

the policy in effect at the time of the

execu tion of the charter, or any subsequent

modification thereof, shall remain in effect

and the sponsor may not hold the charter

school responsible for any provision of a

newly revised policy until the revised policy

is mutually agreed upon.

77 . Respondent co rrectly points out in its Proposed Final

Order that the interpretation provision is subject to multiple

interpretations. As such, Petitioner failed to meet its bur den

and demonstrate Policy 2.57 ¶12 . enlarges, modifies or contravenes

1002.33(5)(b) 1 .d .

Charter Petition

78 . Renaissance ' s Charter Petition challenges various

amended provisions of Policy 2.57 and asserts that the provisions

restrict the flexibility that the charter statute specifically

grants to Florida charter schools. Contrary to the School

Board ' s argument , Renaissance ' s request in the Charter Petition

i s not seeking the same relief sought in the Rule Challenge.

Instead, Renaissance ' s effort is not to invalidate the rule but

to show that the amended provisions in Policy 2.57 violate

flexibility granted to charter schools in section 1002.33 .

79 . Section 1002.33(6)(h) provides:

( h) The terms and conditions for the

operation of a charter school shall be set

forth by the sponsor and the applicant in a

written contractual agreement, called a

charter. The sponsor may not impose

unreasonable rules or regulations that

violate the intent o f giving charter schools

greater flexibility to meet educational

goals. The sponsor has 30 days after

approval of the application to provide an

initial proposed charter contract to the

charter school. The applicant and the

sponsor have 40 days thereafter to negotiate

and notice the charter contract for final

approval by 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 w hich the charter is

scheduled to be voted upon by the sponsor.

The 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 appr oved charter, except

disputes regarding charter school application

denials. If the Commissioner of Education

determines that the dispute cannot be settled

through mediation, the dispute may be

appealed to an administrative law judge

appointed by the Divis ion of Administrative

Hearings. The administrative law judge has

final order authority to 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 c harter schools by

statute, or on any other matter regarding

this section except a charter school

application denial, a charter termination, or

a charter nonrenewal and shall award the

prevailing party reasonable attorney ' s fees

and costs incurred to be pai d by the losing

party. The costs of the administrative

hearing shall be paid by the party whom the

administrative law judge rules against.

80 . Respondent ' s m otion to d ismiss was denied by the

undersigned and that matter is not at issue. P rocedural ly,

Petitioner ' s dispute falls into the category " any other matter

regarding this section " pursuant to section 1002.33(6)(h).

Therefore, Renaissance has standing to proceed on the grounds

alleged in the Charter Petition.

8 1 . Renaissance specifically maintains that the School

Board ' s amendments to Policy 2.57 ha ve been an oppressive action

and a method to limit charter schools flexibility by mandating:

innovative requirements , governing board residency requirements,

and facility location requirements that contradict the express

terms of the charter statute. So as not to be duplicative,

Renaissance refers to arguments previously made for the Rule

Challenge case to further demonstrate the amendments to

Policy 2.57 are unfair to cha r ter schools . T he undersigned has

conside red the combined evidence from the consolidated matters

for the allegations in the Charter Petition.

82 . However, Renaissance has failed to meet its burden

and persuade the undersigned. The evidence above shows that the

amendments to Policy 2.57 Petitioner is contesting were invalid

and either contravened, enlarged, or modified section 1002.33.

However, no testimony or evidence was presented to demonstrate

how innovative requirements in Policy 2.57¶3 . d . ii . D . , residency

requirements in Policy 2.57¶6 . e . , and the facility location

requirement in Policy 2.57¶6 . f . were oppressive or limited the

flexibility for charter schools . Moreover , the record lacks

evidence of unfair treatment . Therefore, no violation of section

1002.33(6)(h) has been proven by the adoption of the amendments

to Policy 2.57 as alleged by Petitioner .

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1. The section of Policy 2.57¶6 . e . , which requires " fifty

one percent of the Governing Board members must reside in Palm

Beach County " constitutes an invalid exercise of delegated

legislative authority in violation of section 120.52(8 ) (c) .

2. The section of Policy 2.57¶6 . f . which requires a

" charter school Facility cannot be located in the vicinity of a

District - operated school that has the same grade levels and

programs " constitutes an invalid exercise of delegated

legislative authority in violation of section 120.52(8) (c) .

3. Renaissance Ós Petition seeking an administrative

determination that the budget worksheet is an unadopted rule is

hereby DISMISSED.

4. The section of Policy 2.57¶3 . d . ii . D . , which defines

innovative and requires the standard, " beyond the status quo, "

constitutes an invalid exercise of delegated legislative

authority in violation of section 120.52(8) (c) .

5. The section of Policy 2.57 which includes the Innovative

Rubric Policy constitutes an invalid exercise of delegated

legislative authority in violation of section 120.52(8) (c) .

6. Policy 2.57 ¶12. was not shown to be an invalid exercise

of delegated legislative authority as defined by section

120.52(8) (c) , and the challenge is DISMISSED.

7. Renaissance failed to demonstrate the School Board

exc eeded it s grant of rulemaking authority because it lacked

the delegated legislative authority to promulgate Policy 2.57

on the subject matter of charter schools and the challenge to

section 120 .52 (8)(b) is DISMISSED .

8. Renaissance failed to demonstrate the School Board

violated section 1002.33(6)(h) by adopting various provisions of

Policy 2.57 and the Charter Petition is DISMISSED.

9. The undersigned retains jurisdiction to consider issues

pertaining to attorneys ' fees and costs.

DONE AND ORDERED this 11 th day of July, 2017, in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

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 11 th day of July, 2017 .

ENDNOTE

1/ Section 1002.33(6)( a)7 . was previously section 1002.33(6)(a)6 .

when Policy 2.57 was last revised.

COPIES FURNISHED:

Sean Fahey, Esquire

School Board of Palm Beach County

Post Office Box 19239

West Palm Beach, Florida 33416

(eServed)

Stephanie Alexander, Esquire

Tripp Scott, P.A.

200 West College Avenue , Suite 216

Tallahassee, Florida 32301

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard , Suite C - 316

West Palm Beach, F lorida 33406 - 5869

Judy A. Bone, Esquire

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

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 Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the o riginal

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.