To create a Disqualification List and provide instructions for reporting persons to the Department for inclusion on the list. The Disqualification List will contain persons who have committed offenses listed in s. 1012.315, ....

 

DEPARTMENT OF EDUCATION

State Board of Education

RULE NO.:RULE TITLE:

6A-10.084Disqualification List

PURPOSE AND EFFECT: To create a Disqualification List and provide instructions for reporting persons to the Department for inclusion on the list. The Disqualification List will contain persons who have committed offenses listed in s. 1012.315, F.S., or engaged in sexual misconduct with a student, as well as persons who have operated or owned an educational institution which has been operated contrary to the health, safety or welfare of the public. The purpose is also to set forth the instructions for seeking removal from the list, as well describing the criteria for removal from the list. The purpose of the rule is also to incorporate by reference a form affidavit for use by school districts when a person is terminated or resigns in lieu of termination.

SUMMARY: The rule defines sexual misconduct with a student and requires reporting entities to provide notice to persons submitted to the Department of the consequences of inclusion on the list. The rule requires school districts, the Educational Practices Commission (EPC) and the Commissioner of Education to issue a final order under chapter 120, in order to submit a person to the list. The rule requires charter schools and private schools which accept student receiving a scholarship under chapter 1002, F.S., to adopt procedures and to issue a final report before submitting a person for inclusion on the list. The rule requires reporting to a specific site, and based upon the five different reporting entities (school districts, charter schools, private schools, EPC and the Commissioner) the rule describes the information needed in order to report a person for inclusion on the list, and incorporates forms that must be used to report a person for inclusion on the list. The rule also describes the information needed to request removal from the list and the criteria for determining whether to remove a person from the list.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the Agency.

The Department intends to implement the rule with existing staff. Whether or not costs related to removal from the list will result in the need for additional staff is unknown at this time and would likely occur several years in the future. School districts could incur additional costs due to the requirement for a final order before reporting a person to the list. Charter and private schools could incur additional costs as a result of the requirement to adopt and implement procedures for issuing a final report as set forth in subsection (6) and (7) of the proposed rule before reporting a person to the list. During a rule workshop, concerns were raised about one aspect of those procedures, namely, the requirement for charter schools and private schools to employ a certified arbitrator where a person contested placement on the list. In response, the requirement was removed from the proposed rule and replaced with the requirement for a determination by a neutral person. This more flexible requirement should minimize cost to these reporting entities, while still protecting persons from the risk of improper placement on the list.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The adverse impact or regulatory cost of this proposed rule, if any, is not expected to exceed any of the economic criteria set forth in Section 120.541(2)(a), F.S. and will not require legislative ratification.

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.

RULEMAKING AUTHORITY: 1001.02(1), (2)(n), 1001.10(4)(d), 1012.31(2)(a), F.S.

LAW IMPLEMENTED: 1001.10(4)(b), 1012.31(2)(a), F.S.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: March 30, 2022, 9:00 a.m.

PLACE: Collier County School Board Office, 5775 Osceola Trail, Naples, Florida 34109.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Randy Kosec, Jr., Chief, Office of Professional Practices Services, 325 West Gaines Street, Suite #224, Tallahassee, Florida 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

6A-10.084 Disqualification List.

(1) Purpose. The purpose of this rule is to set forth the criteria for placement on the Disqualification List and removal from the list, as well as the responsibilities of entities that report persons for inclusion on the list.

(2) Definitions. In this rule, the terms are defined as follows:

(a) “Applicant” means a person who is applying for an initial athletic coaching, temporary or professional certificate, as provided in subparagraph (1)(a)1. of Rule 6A-4.0012, F.A.C.;

(b) “Clear and convincing evidence or material” means evidence relied upon at hearing, or the material or information relied upon in the absence of a hearing, such as videos, witness statements, and admissions, is of such weight and credibility that they produce a firm belief, without hesitancy of a fact;   

(c) “Commissioner” means the Commissioner of Education as set forth in section (s.) 1001.10, Florida Statutes (F.S.);

(d) “Conviction” means an adjudication of guilt by a court, after a determination of guilt by verdict or a plea of guilt; as well as where a person is found guilty, plead guilty or plead nolo contendere and adjudication of guilt is withheld; 

(e) “Covered position” means a position held by instructional personnel, administrative personnel and educational support persons, as defined by s. 1012.01(2), (3) and (6), F.S., and as determined by the employing school district, charter school or private scholarship school;

(f) “Department” means the Department of Education;

(g) “Education Practices Commission” (EPC) means the commission established under s. 1012.79, F.S.;

(h) “Educator certificate” means any certificate awarded under s. 1012.55, F.S., and identified in Rule 6A-4.002, F.A.C.;  

(i) “Employment” or “employed” means any person performing services in a covered position for a school district, charter school or private scholarship school, regardless of whether the person is hired and paid directly by the district, charter school or private scholarship school, or hired and paid through a contract the school district, charter school or private scholarship school has with a third party; 

(j) “Private scholarship school” means a school participating in an educational scholarship program established in chapter 1002, F.S.;

(k) “Reporting entity” means the following entities that report a person for the Disqualification List: a school district, charter school, private scholarship school, the EPC and the Commissioner;

(l) “Resigned in lieu of termination” means the voluntary separation or retirement by the employee after receiving any notice, whether formal or informal, that the school district intends to dismiss or seek removal of the employee for circumstances that constitute cause, or resignation or retirement by the employee while under investigation for sexual misconduct with a student;

(m) “Separated due to termination” means termination of the employment relationship by the school district for cause. It does not include non-renewal of a professional, annual or probationary contract unrelated to cause, to a workforce reduction or to another separation instituted by a school district unrelated to cause; and

(n) “Sexual misconduct with a student” means any behavior or act, whether physical, verbal or electronic, by a person in a covered position with a prekindergarten through 12th grade student, regardless of the age or consent of the student, which is intended to erotically stimulate either person or which is likely to cause such stimulation. Examples of sexual misconduct with a student may include all of the following conduct:

1. Making lewd or lascivious remarks to a student or performing such acts in the presence of a student;

2. Kissing a student, intentionally touching a student's breast(s) or sexual organs, regardless of whether the student is clothed;

3. Sending, providing or exchanging nude or semi-nude pictures with a student or a request for the same; and

4. Any attempt to engage, or offer to engage, a student in any behavior or act which would constitute sexual misconduct with a student, if completed. 

(3) The Roles of the Department and Reporting Entities. 

(a) The Disqualification List serves as an employment screening resource for school districts, charter schools and private scholarship schools, along with the Department’s Teacher Certification Database referenced in s. 1001.10(5), F.S.

(b) It is the responsibility of a reporting entity to:

1. Ensure that only persons subject to the list as set forth in this rule are submitted to the Department for placement on the Disqualification List;

2. Designate a person responsible for providing information and responding to Department inquiries related to the Disqualification List; and

3. Provide written notice to any person submitted for inclusion on the Disqualification List of the following statement: 

ANY PERSON ON THE DISQUALIFICATION LIST MAINTAINED BY THE FLORIDA DEPARTMENT OF EDUCATION UNDER S. 1001.10(4), F.S., MAY NOT SERVE OR APPLY TO SERVE AS AN EMPLOYEE OR CONTRACTED PERSONNEL AT A PUBLIC SCHOOL OR PRIVATE SCHOOL THAT PARTICIPATES IN A STATE SCHOLARSHIP PROGRAM UNDER CHAPTER 1002, F.S. A PERSON WHO KNOWINGLY VIOLATES THIS PROVISION COMMITS A FELONY OF THE THIRD DEGREE, PUNISHABLE AS PROVIDED IN S. 775.082, F.S., OR S. 775.083, F.S.

(c) It is the responsibility of the Department to:

1. Host the site for the Disqualification List and serve as the administrator for the list;

2. Notify reporting entities of any additional information needed in order for the Department to include a person on the list; and

3. Consider requests for removal from the list in accordance with subsection (9) of this rule.  

(d) The Department, as the List Administrator, will not reweigh the underlying facts which results in placement of a person on the list as a result of action by a reporting entity.

(4) Reporting Requirements for Final Order or Report.

(a) In order for a person to be included on the Disqualification List, reporting entities must issue a final order or report as described in this subsection. 

1. Where the reporting entity is a school district, the EPC or the Commissioner, a final order, issued under the provisions of chapter 120, F.S., must be issued. 

2. Where the reporting entity is a charter school, in order to submit a person for inclusion on the Disqualification List, the governing authority of the school must issue and maintain a written report adopted in accordance with the procedures set forth in subsection (7) of this rule.  

3. Where the reporting entity is a private scholarship school, in order to submit a person for inclusion on the Disqualification List, the governing authority of the school must issue and maintain a written report adopted in accordance with the procedures set forth in subsection (6) of this rule.

(b) In order for a school district, charter school or private scholarship school to report a person for inclusion on the Disqualification List, the final order or report must include the following information: 

1. A determination that the person is ineligible for employment with the entity;

2. This determination is based upon a finding, supported by clear and convincing evidence or material, that the person committed either sexual misconduct with a student, as defined by this rule, or has been convicted, as defined by this rule, of one of the crimes listed in s. 1012.315, F.S.; and

3. The sexual misconduct or crime occurred on or after June 1, 2022, while the person was employed by the reporting entity in a covered position.

(c) In order for the Commissioner to report a person for inclusion on the Disqualification List, the final order must include the following information:

1. The authority to own or operate a private school in this state is permanently denied or revoked on or after June 1, 2022; and  

2. This action is based upon a finding, supported by clear and convincing evidence or material, that the person, while in the capacity of an owner or operator of an educational institution, is operating or has operated an educational institution in a manner contrary to the health, safety or welfare of the public.

(d) In order for the EPC to report a person who holds an educator certificate for inclusion on the Disqualification List, the final order must include the following information:

1. The ability of the person to hold an educator certificate is permanently denied or revoked on or after June 1, 2022;

2. This penalty is based upon a finding, supported by clear and convincing evidence or material, that the person committed either sexual misconduct with a student, as defined by this rule, or has been convicted, as defined by this rule, of one of the crimes listed in s. 1012.315, F.S.; and

3. The sexual misconduct or crime occurred on or after June 1, 2022. 

(e) In order for the EPC to report a person who is an applicant for an educator certificate, as defined in this rule, for inclusion on the Disqualification List, the final order must include the following information:

1. A determination that the person is ineligible for an educator certificate, made on or after June 1, 2022; and

2. This determination is based upon a finding, supported by clear and convincing evidence or material, that the person committed either sexual misconduct with a student, as defined by this rule, or has been convicted, as defined by this rule, of one of the crimes listed in s. 1012.315, F.S.

(5) Reporting a Person for the Disqualification List. In order to submit a person for the Disqualification List, all reporting entities must utilize the online reporting tool accessible at http://fldoe.org/disqualificationlist and provide the following information:

(a) The name, date of birth and last four numbers of the social security number of the person to be included on the list; 

(b) The date and number of the final order or report;

(c) The information that must be included in the final order or report, as set forth in paragraphs (4)(b) – (e), of this rule; and

(d) Confirmation that the person was provided written notice of the consequence of placement on the Disqualification List, as set forth in the capitalized language found in subparagraph (3)(b)3. of this rule.

(6)  Procedures Specific to Private Scholarship Schools. In order to ensure that any person submitted for inclusion on the Disqualification List by a private scholarship school receives a level of process comparable to persons submitted by a school district, prior to submission of a person for the list, the school or its governing authority must adopt procedures which, at a minimum, provide:

(a) Notice to the individual that the school intends to submit the person for inclusion on the Disqualification List;

(b) Notice of the opportunity to contest the intended action and the procedures for doing so;

(c) The opportunity for a determination by a neutral person where the intended action is contested;

(d) Issuance of a written report that includes the information and findings which caused the person to be included on the Disqualification List, as described in paragraph (4)(b) of this rule;

(e) Notice to any individual submitted for inclusion on the Disqualification List of the consequences of inclusion on the list, as found in the capitalized language set forth in subparagraph (3)(b)3. of this rule; and  

(f) For permanently maintaining records related to the determination to submit a person for inclusion on the Disqualification List.

(7)  Procedures Specific to Charter Schools. In order to ensure that any person submitted for inclusion on the Disqualification List by a charter school receives a level of process comparable to persons submitted by a school district, prior to submission of a person for the list, the school or its governing authority must adopt procedures which, at a minimum, provide:

(a) Notice to the individual that the school intends to submit the person for inclusion on the Disqualification List;

(b) Notice of the opportunity to contest the intended action and the procedures for doing so;

(c) The opportunity for a determination by a neutral person where the intended action is contested;

(d) Issuance of a written report that includes the information and findings which caused the person to be included on the Disqualification List, as described in paragraph (4)(b) of this rule;

(e) Notice to any individual submitted for inclusion on the Disqualification List of the consequences of inclusion on the list, as found in the capitalized language set forth in subparagraph (3)(b)3. of this rule; and  

(f) For permanently maintaining records related to the determination to submit a person for inclusion on the Disqualification List.

(8)  Procedures Specific to School Districts – Affidavit of Separation. 

(a) When an employee is “separated due to termination” as defined in paragraph (2)(m) in this rule or when an employee “resigned in lieu of termination” as defined in paragraph (2)(l) of this rule from a school district, the school district must complete and maintain a form entitled, Affidavit of Separation from School District Employment Due to Termination or Resignation in Lieu of Termination. This form requires the following information:

1. The separated employee’s name, last four numbers of the social security number, and the date of separation;

2. The type of separation (separated due to termination or resigned in lieu of termination); 

3. Whether separation is due to a report of sexual misconduct with a student by the separated employee; and

4. Details surrounding the separation.

(b) The requirement to complete an Affidavit of Separation applies regardless of whether or not the person is submitted for inclusion on the Disqualification List. 

(9) Removal from Disqualification List. The process for submitting, considering and ruling upon a request for removal from the Disqualification List is set forth below. 

(a) Submission of Removal Request. A request for removal may be submitted by the person included on the list or the reporting entity that submitted the person for the list and must:

1. Be in writing and submitted to the list accessible at http://fldoe.org/disqualificationlist;

2. Identify which paragraph of s. 1001.10(4)(c), F.S., is relied upon for the request for removal and provide details demonstrating the basis of removal;  

3. Include a copy of the final order or report which resulted in placement on the list and the current address of the reporting entity or entities; and

4. Include certified or notarized documentary evidence supporting the request. 

(b) Consideration of Removal Request. Upon receipt of a request for removal, the Department will:

1. Review the request for removal and notify the requestor of any supplemental information or documentation needed in order to process the request;

2. Provide notice to entities that reported the person for inclusion on the list, of the removal request; and

3. Provide a written decision.

(c) Department Decision on Removal Request.

1. Requests under s. 1001.10(4)(c)1., F.S. (completed law enforcement investigation), and s. 1001.10(4)(c)2., F.S. (mistaken identity). Where the request demonstrates that grounds for removal as described in s. 1001.10(4)(c)1. or 2., F.S., exist, the Department will grant the request for removal.

2. Requests under s. 1001.10(4)(c)3., F.S. Where the employing school district, charter school or private scholarship school that submitted a person for inclusion on the Disqualification List requests removal from the list, the Department will grant the request when the request for removal demonstrates the following:  

a. The person on the list is not ineligible for employment as a result of a conviction of one of the crimes listed in s. 1012.315, F.S., and is not under law enforcement investigation for one of the crimes listed in s. 1012.315, F.S.;

b. A district or school intends to employ the individual if the person is removed from the list; and

c. Good moral character and rehabilitation, considering the circumstances surrounding the misconduct, the time period that has elapsed since the misconduct, the nature of the harm to any victim, the history of employment with the reporting entity and any other circumstances relevant to character.

(10) Documents Incorporated by Reference. The following documents are incorporated by reference and may be obtained at http://fldoe.org/disqualificationlist:

(a) EPC Certification of Final Determination of Eligibility for the Disqualification List – Educator Certificate Holder, Form No. DQ-1a, effective June 1, 2022, and EPC Certification of Final Determination of Eligibility for the Disqualification List – Educator Certificate Applicant, Form No. DQ-1b, effective June 1, 2022;

(b) School District Certification of Final Determination of Eligibility for the Disqualification List, Form No. DQ-2, effective June 1, 2022;

(c) Charter School Certification of Final Determination of Eligibility for the Disqualification List, Form No. DQ-3, effective June 1, 2022;

(d) Private Scholarship School Certification of Final Determination of Eligibility for the Disqualification List, Form No. DQ-4, effective June 1, 2022;

(e) Commissioner of Education Certification of Final Determination of Eligibility for the Disqualification List, Form No. DQ-5, effective June 1, 2022;

(f) Affidavit of Separation from School District Employment Due to Termination or Resignation in Lieu of Termination, Form No. DQ-6, effective June 1, 2022.

PROPOSED EFFECTIVE DATE: JUNE 1, 2022

Rulemaking Authority 1001.02(1), (2)(n), 1001.10(4)(d), 1012.31(2)(a) FS. Law Implemented 1001.10(4)(b), 1012.31(2)(a) FS. History‒New

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Randy Kosec, Jr., Chief, Office of Professional Practices Services.

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Richard Corcoran, Commissioner, Department of Education.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 02, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 18, 2022