The purpose of this rule amendment is to include legal guardians in hearings relating to student suspensions, to provide a deadline for decisions following the suspension hearing, and to update statutory references.

DEPARTMENT OF EDUCATION
State Board of Education

RULE NO: RULE TITLE
6A-1.0956: Suspension on the Basis of Felony Charges
PURPOSE AND EFFECT: The purpose of this rule amendment is to include legal guardians in hearings relating to student suspensions, to provide a deadline for decisions following the suspension hearing, and to update statutory references.
SUMMARY: This amendment updates the statutory references, provides language for the inclusion of guardians of students in addition to the student’s parent at the administrative hearing relating to suspension and provides a deadline for decisions following the suspension hearing.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared. The Board determined the proposed rule will not have an impact on small business.
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: 1001.02(1), 1006.09(2) FS.
LAW IMPLEMENTED: 1006.09(2) FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: January 19, 2010, 9:30 a.m.
PLACE: Tampa Airport Marriott, 4200 George J. Bean Parkway, Pinellas Meeting Room, Tampa, Florida 33607
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Brooks Rumenik, Director, Office of Safe Schools, Department of Education, 325 West Gaines St., Suite 554, Tallahassee, FL 32399-0400

THE FULL TEXT OF THE PROPOSED RULE IS:

6A-1.0956 Suspension on the Basis of Felony Charges.

When a student is formally charged with a felony by a proper prosecuting attorney for an incident which allegedly occurred on property other than public school property, but which incident is shown to have an adverse impact on the educational program, discipline, or welfare in the school in which the student is enrolled, the principal shall, in accordance with Section 1006.09 232.26(2), Florida Statutes, conduct an administrative hearing for the purpose of determining whether or not the student should be suspended pending court determination of his or her guilt or innocence, or the dismissal of the charge, is made by a court of competent jurisdiction. The following procedures shall be followed by the principal in instituting and conducting the administrative hearing; provided, however, that a school board may, upon written approval of the Commissioner, utilize its own hearing policy in lieu of this rule.

(1) Upon receiving proper notice that a student has been formally charged with a felony, the principal shall immediately notify the parent or guardian of the student, in writing, of the specific charges against the student and of the right to a hearing prior to disciplinary action being instituted under the provisions of Section 1006.09 232.26(2), Florida Statutes.

(2) Such notice shall stipulate a date for hearing which shall be not less than two (2) school days nor more than five (5) school days from postmarked date, or delivery, of the notice and shall also advise the parent of the conditions under which a waiver of suspension may be granted, as prescribed in subsections (2) and (3) of Section 1006.09(2) 232.26, Florida Statutes. Pending such hearing, the student may be temporarily suspended by the principal.

(3) The hearing shall be conducted by the principal, or designee, and may be attended by the student, the parent or guardian, the student’s representative or counsel, and any witnesses requested by the student, the parent or guardian, or the principal.

(4) The student may speak in his or her own defense, may present any evidence indicating his or her eligibility for waiver of disciplinary action, and may be questioned on his or her testimony. However, the student shall not be threatened with punishment or later punished for refusal to testify.

(5) In conducting the hearing, the principal or designee shall not be bound by rules of evidence or any other courtroom procedure, and no transcript of testimony shall be required.

(6) Following the hearing, the principal, within five (5) school days, shall provide the student and parent or guardian with a decision, in writing, as to whether or not suspension will be made. In arriving at this decision, the principal shall consider the conditions prescribed by subsections (2) and (3) of Section 1006.09(2) 232.26, Florida Statutes, under which a waiver of suspension may be granted, and may grant such a waiver when he or she determines such action to be in the best interests of the school and the student. Provided, however, that any suspension pending adjudication of guilt shall be made only upon a finding, based upon conclusive evidence, that a felony charge has been formally filed against the student by a proper prosecuting attorney. The principal shall have authority to modify the decision to either grant or deny a waiver, at any time prior to adjudication of the student’s guilt by a court, provided that any such modification adverse to the student shall be made only following a hearing conducted in accordance with this rule.

Rulemaking Specific Authority 1001.02, 1006.09(2) 120.57(1)(a)6., 229.053(1), 232.26(2) FS. Law Implemented 1006.09(2) 232.26(2) FS. History–New 2-18-74, Repromulgated 12-5-74, Amended 9-6-78, Formerly 6A-1.956, Amended 8-30-88,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Dr. Frances Haithcock, Chancellor, Division of Public Schools
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Dr. Eric J. Smith, Commissioner of Education
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 8, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 18, 2009