Ceria M. Travis Acad., Inc. v. Evers

• Decision Date: 31 October 2016
• Docket Number: No. 2015AP2314.,2015AP2314.
• Citation: 372 Wis.2d 423,887 N.W.2d 904
• Parties: CERIA M. TRAVIS ACADEMY, INC., Petitioner–Respondent, v. Tony EVERS, State Superintendent of Public Instruction, Respondent–Appellant.
• Court: Wisconsin Court of Appeals

372 Wis.2d 423

887 N.W.2d 904

CERIA M. TRAVIS ACADEMY, INC., Petitioner–Respondent,

v.Tony EVERS, State Superintendent of Public Instruction, Respondent–Appellant.

No. 2015AP2314.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 6, 2016.

Opinion Filed Oct. 31, 2016.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Maura FJ Whelan, Assistant Attorney General, and Brad D. Schimel, Attorney General.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Jennifer S. Walther of Mawicke & Goisman, S.C. of Milwaukee.

Before KESSLER and BRASH, JJ., and DANIEL L. LaROCQUE, Reserve Judge.

KESSLER, J.

¶ 1 The Department of Public Instruction (DPI) appeals orders of the circuit court in which the court determined that a Settlement Agreement (the Agreement) entered between DPI and Travis Technology High School (Travis Tech) allowing Travis Tech to remain in the Milwaukee Parental Choice Program (MPCP) is unenforceable based on two provisions in the Agreement. The Agreement was entered into to avoid a preliminary decision by DPI to bar Travis Tech from participation in the MPCP because the school failed for several years to file the requisite financial documents in a timely manner. The circuit court ordered DPI to release withheld funds and to allow Travis Tech to remain in the MPCP. We conclude that the provision of the Agreement in which DPI and the school agree to a surety bond and the provision by which Travis Tech waived its right to judicial review are enforceable. Accordingly, we reverse the circuit court's decision and remand the matter to the DPI.

BACKGROUND

¶ 2 The underlying facts in this case are not in dispute and are taken primarily from the circuit court's written decision. Ceria M. Travis Academy, Inc. (Travis Inc.) is a nonprofit organization in Milwaukee that operates two schools, Ceria M. Travis Academy and Travis Tech. Both schools were participants in the MPCP pursuant to WIS. STAT. § 119.23 (2013–14).¹ The MPCP was created in 1989 to subsidize private education for children from low-income families in the City of Milwaukee. Under the program, DPI pays each Choice school a statutorily-authorized amount on behalf of the parents, based on the number of students each school has in attendance. See WIS. STAT. § 119.23(4) ; WIS. ADMIN. CODE § PI 35.05(3) (2012).² DPI makes payments in four equal installments in September, November, February, and May of each school year. See WIS. STAT. § 119.23(4)(c). Participating schools are required to provide DPI with annual Financial Information Reports, detailing the schools' revenues and expenses for the previous year. Financial Information Reports must be submitted “[a]nnually by September 1 following a school year in which a private school participated in the [MPCP] program.” WIS. STAT. § 119.23(7)(am) 1. (2011–12). Following submission of the Financial Information Report, DPI determines whether a school received any overpayments for the previous school year. WIS. ADMIN. CODE § PI 35.045(1)(g). In the event of an overpayment, the school must reimburse DPI within a specified time period. See §§ PI 35.04(8), (9)(f); 35.045(1)(g)3. If a school fails to comply with the financial reporting requirements, DPI may impose a variety of sanctions, including, but not limited to, barring the school from participating in the MPCP. WIS. STAT. § 119.23(10)(a) 2.

¶ 3 As relevant to this appeal, Travis Tech submitted a Financial Information Report on September 22, 2014, for the 2014–15 school year, three weeks past the September 2, 2014 deadline. It was the fourth consecutive year Travis Tech submitted a late financial report. Also on September 22, 2014, DPI issued notice of its preliminary decision to bar Travis Tech³ from participation in the MPCP and to withhold future payments. On October 22, 2014, counsel for Travis Tech asked DPI to vacate its preliminary decision. DPI declined and Travis Tech appealed the preliminary decision. Thereafter, Travis Tech and DPI entered into settlement discussions.

¶ 4 Ultimately, the parties reached a Settlement Agreement, whereby, as relevant here: (1) DPI required Travis Tech to obtain a surety bond equal to twenty-five percent of the total MPCP payment for the 2014–15 academic year; (2) DPI would withhold its November 2014 payment until Travis Tech obtained the bond; and (3) Travis Tech agreed to waive all rights to an appeal in the event DPI barred Travis Tech from the MPCP because of the school's failure to comply with the terms of the Agreement. Specifically, the Agreement stated:

[T]he Department and the School agree to the following:

....

3) The School shall submit to the Department all reports fully completed and on a timely basis. In order to be considered timely, a report shall be sent to the Department on or before the date, as computed under [ WIS. STAT. § ] 990.001(4), established by statute, administrative rule, or other communication from the Department. A request by the Department for additional, supplemental information not required by the report shall not render a report incomplete. The Department shall determine, in its sole discretion, whether a report is complete and timely.

4) The School shall contract, at its own expense, with the Wisconsin Religious and Independent Schools Accreditation (“WRISA”) to conduct an in-person review of the School.... The review shall determine the following: (i) whether the School meets private schools requirements under WIS. STAT. § 118.165(1) ; (ii) whether the School meets the hours of instruction requirements under WIS. STAT. § 119.23(2)(a) 8 for each grade; and (iii) whether the School is in compliance with WIS. STAT. § 119.23(2)(a) 6. The School's contract with WRISA shall require WRISA to provide a copy of its findings directly to the Department. A copy of WRISA's findings must be received by the Department on or before November 17, 2014.

....

6) On or before December 17, 2014, the School shall obtain a surety bond equal to 25 percent of the total current fiscal year Choice payment amount, as determined under WIS. STAT. § 119.23(4). The surety bond shall be made payable to the State of Wisconsin. The purpose of the bond shall be to protect the Department and the taxpayers of Wisconsin against loss in the event the School is unable to return Choice overpayments to the Department under WIS. ADMIN. CODE §§ PI 35.04(9)(f) or 35.045(1)(g)3, or the School fails to comply with paragraph three (3) of this agreement. The Department shall not release the School's November Choice payment until the School obtains the aforementioned surety bond.

7) If the School fails to comply with any of the requirements in paragraphs three (3), four (4), or six (6), the Department may, in its sole discretion, issue an order under WIS. STAT. § 119.23(10) and WIS. ADMIN. CODE § PI 35.05(12) to bar the school from participation in the MPCP and withhold payments from the School. The School expressly waives all appeal or other rights it may have including those under WIS. STAT. Chapt. 227, to challenge such an order. The order issued shall become effective on the date it is signed on behalf of the Department.

The Agreement also stated:

The parties had equal opportunity to review, revise, and negotiate the terms of this agreement. The parties acknowledge that they have read this agreement and have had the opportunity to consult with their respective attorneys concerning its contents and legal consequences. The parties further acknowledge they have entered into this agreement knowingly and voluntarily, fully understanding its terms.

Travis Tech was represented by counsel at the time the Agreement was negotiated. Both a Travis Tech representative and Travis Tech's counsel signed the Agreement.

¶ 5 Travis Tech opposed the bond requirement, asserting that there was no evidence suggesting that Travis Tech had financial difficulties; however, the school ultimately signed the Agreement on October 22, 2014. On October 24, 2014, Travis Tech asked DPI if it would accept a Generally Accepted Accounting Principles (GAAP) audit instead of a surety bond, in accordance with WIS. ADMIN. CODE § PI 35.05(10)(d). DPI refused. DPI also rejected the school's request to use an open line of credit in the amount of the bond.

¶ 6 On December 16, 2014, the day before the deadline for Travis Tech to obtain a surety bond, the school requested an additional month to obtain the bond.⁴ Alternatively, Travis Tech requested that DPI release the bond requirement because the school showed no signs of financial distress. DPI rejected both requests.

¶ 7 Travis Tech failed to meet the December 17, 2014 deadline to obtain a surety bond. On December 19, 2014, Travis Tech notified DPI that it obtained the collateral for the bond and asked DPI to reconsider the bond. DPI again refused to extend the deadline. On December 22, 2014, DPI issued an “Order to Bar from Participation and Withhold Payments,” in which it ordered, as relevant, that: “The School is barred from participation in the MPCP as of the date of this order” and “The Department shall withhold from the School the November 2014 and subsequent Choice payments for the 2014–15 school year.” DPI also noted that “The School has waived any and all appeal rights it may have had to challenge the ... Order.”

Appeal to the Circuit Court.

¶ 8 Travis Tech filed a petition for judicial review, arguing that DPI exceeded its authority by requiring the school to secure a surety bond because the school's delay in filing its Financial Information Report was not indicative of its financial abilities to continue participation in the MPCP. Travis Tech also argued that the provision in the Settlement Agreement in which it waived its right to appeal DPI's order was unenforceable.

¶ 9 The circuit court reversed DPI's decision, finding that DPI “did not have the authority to impose the bond requirement under the law, regardless of the fact that [Travis Inc.] signed the settlement...