This rule is substantially rewritten to be consistent with governing statutes and to provide clear procedures for applicants as well as sponsors when addressing an appeal relating to the denial of a charter school application or termination, non-...

DEPARTMENT OF EDUCATION
State Board of Education

Rule No.: RULE TITLE
6A-6.0781: Procedures for Appealing a District School Board Decision Denying Application for Charter School
PURPOSE AND EFFECT: This rule is substantially rewritten to be consistent with governing statutes and to provide clear procedures for applicants as well as sponsors when addressing an appeal relating to the denial of a charter school application or termination, non-renewal, or immediate termination of an existing charter school. The effect is a rule consistent with law and which clearly outlines procedure relating to the denial of a charter school application or the termination, non-renewal or immediate termination of an existing charter school.
SUMMARY: This rule is substantially rewritten to address procedures relating to the denial of a charter school application or the termination, non-renewal or immediate termination of an existing charter school.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 1002.33(24) FS.
LAW IMPLEMENTED: 1002.33(6), 1002.335 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: September 21, 2010; 9:00 a.m.
PLACE: Room LL03, The Capitol, 400 South Monroe Street, Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Lynn Abbott, Department of Education, [phone] or [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Michael Kooi, Executive Director, Office of Independent Education and Parent Choice, 325 West Gaines Street, Tallahassee, Florida; [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

(Substantial rewording of Rule 6A-6.0781 follows. See Florida Administrative Code for present text.)

6A-6.0781 Procedures for Charter Appealing a District School Appeals Board Decision Denying Application for Charter School.

The purpose of this rule is to establish the procedures for filing and reviewing all appeals to the State Board of Education under provisions of Section 1002.33 F.S.

(1) Definitions.

(a) “Applicant” means:

1. The entity applying for a charter school for purposes relating to the denial of a charter school application; and

2. The charter school governing board for purposes relating to terminations, non-renewals, and immediate terminations of charters.

(b) “Good cause for immediate termination” means greater cause than other legally sufficient causes that govern non-immediate termination, taking into account the exigent circumstances that necessitate immediate emergency action.

(c) “Good cause for termination” means a legally sufficient reason. Empirical evidence, as opposed to conjecture or opinion, shall be used to demonstrate good cause.

(d) “Immediate” means “prompt action, without interval of time.”

(e) “Sponsor’s written determination” means the written specifications by a sponsor of its grounds for denying an application pursuant to Section 1002.33(6)(b)3., F.S., or for nonrenewal, termination, or immediate termination of a charter pursuant to Section 1002.33(8)(c) or (d), F.S.

(2) Due Process. The sponsor shall conduct a hearing that satisfies basic tenets of due process when deciding whether to deny a charter school application, nonrenew a charter, terminate a charter, or immediately terminate a charter. Although due process is flexible and calls for such procedural protections as the particular situation demands, the components of a fair hearing must generally include:

(a) Reasonable notice;

(b) An opportunity to hear the evidence against the applicant;

(c) An opportunity to present evidence in the applicant’s defense;

(d) An opportunity to make arguments in the applicant’s defense; and

(e) A decision based on information in the record.

(3) Hearing Process. The following applies to a sponsor’s decision to deny an application, terminate a charter, non-renew a charter, or immediately terminate a charter.

(a) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by a reasonably prudent person in the conduct of their affairs shall be allowed.

(b) The length of time provided for the applicant to present evidence can vary depending on the facts, issues and circumstances; however, the sponsor shall allow a reasonable amount of time for the applicant to present testimony and documentation as evidence.

(c) The sponsor shall clearly mark the evidence received in the record and identify such evidence on the record.

(d) The sponsor may delegate to an informal hearing officer the authority to conduct a hearing. The hearing may contemplate the submission of written documentation, testimony, oral arguments, or a combination thereof. Upon conducting a hearing, the informal hearing officer shall file a proposed recommended order that includes findings of fact and conclusions of law to the sponsor. While the sponsor may reject conclusions of law, the sponsor shall not reject findings of fact unless the sponsor stated with particularity that the specific findings of fact that are not supported by competent, substantial evidence or that the hearing did not comply with the requirements of a fair hearing.

(4) Specific Hearing Procedures.

(a) Application Denials. Hearings shall be as informal as fairness and principles of due process allow. Notwithstanding subsection (3) of this rule, testimony need not be taken. The sponsor may base its decision solely on the documentation and arguments presented in the record. A sponsor may take testimony if the sponsor finds it necessary to clarify information submitted by the applicant or sponsor staff as part of the application process. If evidence or arguments are taken from district staff or the applicant, a reasonable period of time for rebuttal shall be allowed.

(b) Immediate Terminations.

1. Immediate terminations are for emergency situations that address circumstances requiring an immediate response by the sponsor, such as an immediate threat to the health, safety or welfare of students, or other good cause.

2. Depending on the exigent circumstances that necessitate immediate emergency action, the sponsor’s hearing shall occur contemporaneously with or within a reasonable time after the sponsor’s decision to immediately terminate the charter.

3. If conducting an immediate termination, a sponsor shall include the following with its notice of hearing and the notice of decision to terminate the charter:

a. The specific facts and reasons for finding an immediate danger to the student health, safety, or welfare, or other good cause; and

b. The reasons for concluding that the notice and hearing procedure used is fair under the circumstances.

4. If the grounds necessitating immediate action are not demonstrated, the sponsor shall rescind the vote to immediately terminate the charter and proceed with a non-immediate termination by providing new notice of the sponsor’s intended action.

(5) The applicant may need a record of the hearings in the event the applicant decides to appeal the decision of the sponsor, in which case the applicant will need to ensure that transcripts of the hearing are created by a certified court reporter. If the applicant does not provide transcripts, and the issues revolve around questions of fact or exercise of the sponsor’s discretion, the entire appeal or applicable issues therein may summarily be denied.

(6) The applicant may request a copy of the record on appeal from the sponsor. Within ten (10) days of receipt of a request for the record on appeal from the applicant, the sponsor shall submit a hard copy of the record on appeal and a copy in a fixed layout format similar to a paper publication that is viewable for free. An example is adobe acrobat format, which is viewable via adobe reader. The copy shall be provided via compact disk, usb memory card, or other substantially similar memory device to the Department’s Agency Clerk, with a copy contemporaneously provided to the applicant by hard copy or electronic copy in the same format and media. If the applicant does not request a copy of the record on appeal, the sponsor shall include a hard copy of the record on appeal with the sponsor’s written arguments and an electronic copy in the same format and media.

(7) Issues on appeal. The issues on appeal are limited to the following:

(a) Whether the grounds for denial, non-renewal, termination, or immediate termination in the sponsor’s written determination are supported by the record;

(b) Whether the grounds for denial, non-renewal, termination, or immediate termination in the sponsor’s written determination constitute good cause for the denial, non-renewal, termination, or immediate termination; and

(c) Whether the applicant was denied due process.

(8) Record on Appeal.

(a) The record on appeal shall be tabbed and page numbered for reference as exhibits. Tabs, or equivalent markings, shall be visible in any electronic copy of the record on appeal.

(b) The record on appeal shall consist of:

1. The charter school application and charter contract (or proposed charter contract);

2. Transcripts, if necessary, of all hearings before the sponsor in which its decision was considered or made;

3. All documents filed by the applicant with the sponsor or its officers or employees involving the application, review, recommendation or decision making process, in support of or against the staff’s recommendation or sponsor’s decision, whether provided before the hearing, at the hearing, or before the sponsor’s decision was made;

4. All other documents made or received by the sponsor or its officers or employees in support of or against the staff’s recommendation or sponsor’s decision, whether the documents were provided before the hearing, at the hearing, or before the sponsor’s decision was made;

5. Any decisions overruling objections;

6. All matters placed on the record after an ex parte communication;

7. Any decision, opinion, order, or report by the sponsor;

8. Those matters officially recognized by the sponsor;

9. Proffers of proof and objections and rulings thereon;

10. All documents, notes, memoranda, and other information reviewed or considered by the sponsor in making its decision.

(9) Briefs.

(a) Within thirty (30) days after receipt of the written decision of a sponsor’s denial of an application for a charter school, nonrenewal of a charter, termination of a charter, or immediate termination of a charter, the applicant may file a written appeal (brief) by submitting three (3) hard copies of the appeal and one (1) copy in electonic format as previously described in this rule to the Agency Clerk for the Department of Education, 325 West Gaines Street, Suite 1520, Tallahassee, Florida 32399-0400. The applicant shall send a copy of the brief by mail or hand delivery to the sponsor’s chief executive officer no later than the date the written appeal is filed with the Agency Clerk.

(b) Within thirty (30) days after receipt of the appeal, the sponsor may respond by filing three (3) copies of its written arguments (brief) and one (1) copy in electronic format as previously described in this rule with the Agency Clerk for the Department of Education. The written arguments in the sponsor’s brief are limited to responding to the issues raised by the applicant.

(c) The briefs of both parties must include the following:

1. The name and address of the applicant;

2. The name and address of the sponsor;

3. The date of the sponsor’s decision;

4. The name and address of applicant’s attorney, if any;

5. Written argument limited to argument concerning the grounds identified in the sponsor’s written determination to deny the application, terminate the charter, non-renew the charter, or immediately terminate the charter. The written arguments shall identify the standard of review for each issue.

(d) The briefs of both parties must comply with the following:

1. Briefs shall be printed, typewritten, or duplicated on opaque, white, unglossed eight and a half by eleven inch paper;

2. The lettering in briefs shall be black and in distinct type, double-spaced, with margins no less than 1 inch. Lettering in script or type made in imitation of handwriting shall not be permitted. Footnotes and quotations may be single spaces and shall be in the same size type, with the same spacing between characters, as the text. Computer-generated briefs shall be submitted in either Times New Roman fourteen-point font or Courier New twelve-point font;

3. Briefs shall be securely bound in book form and fastened along the left side in a manner that will allow them to lie flat when opened or be securely stapled in the upper left corner. Headings and subheadings shall be at least as large as the brief text and may be single spaced;

4. The cover sheet of each brief shall state that it is before the State Board of Education, the style of the cause including the case number if assigned, the lower tribunal, the part on whose behalf the brief is filed, the type of brief and the name and address of the attorney filing the brief;

5. The brief shall not exceed twenty (20) pages;

6. A table of contents listing the issues presented for review, with references to pages;

7. A statement of the case and the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. No exhibits are to be attached to the brief; rather, references to the appropriate volume and pages of the record or transcript shall be made.

(e) Failure to meet the requirements of this rule may cause rejection of the submission by the Agency Clerk or Chair of the Charter School Appeal Commission. The State Board of Education does not have jurisdiction to hear appeals that are untimely filed by the applicant.

(10) Upon receipt of a timely filed appeal the Commissioner of Education shall convene a meeting of the Charter School Appeal Commission to consider the appeal, with notice to the applicant and the district school board of that hearing date.

(a) At the hearing before the Charter School Appeal Commission, each party will be given a maximum of fifteen (15) minutes to allow its representatives to summarize the written arguments previously submitted to the State Board. No evidence or testimony, only oral argument, will be heard by the Charter School Appeal Commission.

(b) The Charter School Appeal Commission will review only those issues identified in the sponsor’s written determination and due process, if raised. No new grounds may be raised by the sponsor or applicant.

(c) The Charter School Appeal Commission may question the parties. During questioning, the Charter School Appeal Commission may, in its discretion, gather other applicable information regarding the appeal and request information to clarify the documentation presented in the record on appeal. However, the Charter School Appeal Commission will take no new evidence.

(11) Upon reviewing the record on appeal and hearing oral summaries of written arguments, if presented, and consideration of the answers to questions, if asked, the Charter School Appeal Commission shall vote to recommend to either accept or reject the decision of the sponsor or remand the appeal to the sponsor for the provision of due process.

(12) The Charter School Appeal Commission’s recommendation, record on appeal, written arguments of the parties, and a copy of the Charter School Appeal Commission transcripts will be forwarded to the State Board of Education.

(a) The State Board of Education shall consider the appeal at the next available scheduled State Board of Education meeting. Each party shall have five (5) minutes to summarize its arguments. The State Board of Education shall accept, reject or remand the decision of the sponsor.

(b) The standard of review for the Charter School Appeal Commission and the State Board of Education depends on the issues raised and may be any one or a combination of:

1. Competent, substantial evidence for decisions based on a finding of fact;

2. Abuse of discretion for decisions that are within the discretion of the sponsor; or

3. De novo for decisions based on interpretations of law or contract, and for determining good cause.

(13) Motions.

(a) Motions before the Charter School Appeal Commission or State Board of Education shall be filed with the Agency Clerk in the same format as required in paragraph (9)(d) of this rule, except that the motion is limited to two (2) pages, excluding the certificate of service. Motions shall include a statement that the movant has conferred with the non-moving party, shall state whether the non-moving party has any objection to the motion, and shall certify that the non-moving party has been served with a copy of the motion. The non-moving party may file a response, subject to the same filing requirements as the motion, within three (3) business days of receipt of the motion, or the day before the hearing, whichever occurs first.

(b) The Chair of the Charter School Appeal Commission is authorized to rule upon procedural motions filed before the Charter School Appeal Commission meets.

(c) The Commissioner of Education is authorized to rule upon procedural motions filed before the State Board of Education meets.

Rulemaking Specific Authority 1002.33(24) 229.053(1) FS., Chapter 96-186, Laws of Florida. Law Implemented 1002.33(6),1002.335 FS. Chapter 96-186, Laws of Florida. History–New 2-2-97, Amended_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Michael Kooi, Executive Director, Office of Independent Education and Parent Choice
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Dr. Eric Smith, Commissioner, Department of Education
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 11, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 10, 2009