Survivors Charter v. Sch. Bd. of Palm Beach

• Decision Date: 11 July 2007
• Docket Number: No. 4D06-2379.,No. 4D06-2378.,4D06-2378.,4D06-2379.
• Citation: Survivors Charter v. Sch. Bd. of Palm Beach, 968 So.2d 39 (Fla. App. 2007)
• Parties: SURVIVORS CHARTER SCHOOLS, INC., Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Appellee.
• Court: Florida District Court of Appeals

968 So.2d 39

SURVIVORS CHARTER SCHOOLS, INC., Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Appellee.

No. 4D06-2378.

No. 4D06-2379.

District Court of Appeal of Florida, Fourth District.

July 11, 2007.

Rehearing Denied December 4, 2007.

Bryan J. Yarnell of Watterson & Zappolo, P.A., Palm Beach Gardens, for appellant.

Randall D. Burks, Ph.D. of the School Board of Palm Beach County, Office of Chief Counsel, West Palm Beach, for appellee.

PER CURIAM.

Survivors Charter Schools, Inc. (Survivors) appeals the termination of its charters for two schools, Survivors Charter School West Palm Beach (Survivors WPB) and Survivors Charter School Boynton Beach (Survivors BB). Survivors raises eleven points on appeal, most of which are directed at whether the Administrative Procedure Act of Florida Statutes chapter 120 applied to the charter termination process and related due process concerns. For the reasons that follow, we reverse.

In 2001, the School District of Palm Beach County entered into a ten-year Charter School Charter with Survivors for the operation of Survivors WPB. In 2003, the School District entered into a ten-year Charter School Charter with Survivors for the operation of Survivors BB.

The largely identical charters provided the following in General Provision I regarding the termination of the charters:

The District may terminate the Charter during the term of the Charter, for any of the grounds listed below:

1. A failure by the Charter School to meet the requirements for student performance stated in this Charter;

2. A failure by the Charter School to meet generally accepted standards of fiscal management;

3. A violation of law by the Charter School;

4. Other good cause shown.

The charters also set forth the procedures governing the termination of the charters in General Provisions J and K:

J. This Charter may be terminated immediately upon twenty-four (24) hours notice if the Sponsor determines that good cause has been shown or the health, safety, or welfare of the students is threatened or impaired. The Sponsor [the District] may assume the operation of the Charter School under these circumstances for a period of time as determined solely and exclusively by the sponsor.

K. The procedures for terminating this Charter are as follows:

1. At least ninety (90) calendar days prior to terminating this Charter, unless the Sponsor seeks immediate termination pursuant to Section J, the Sponsor shall notify the governing body of the Charter School of the proposed action in writing. The notice shall state in reasonable detail the grounds for the proposed action and stipulate that a request for an informal hearing before the Sponsor may be requested within fourteen (14) calendar days of receipt of the notice.

2. The Sponsor shall conduct an informal hearing within (30) calendar days after receiving a written request.

3. The Charter School's governing body may, within fourteen (14) calendar days after receiving the Sponsor's decision to terminate the Charter, appeal the decision to the State Board of Education pursuant to § 228.056(10)(c), F.S. This section K does not apply to this Charter being terminated pursuant to Section J of this Charter.

The Survivors BB charter does not contain the final clause of General Provision K regarding non-applicability of General Provision K if termination is pursuant to General Provision J, and the Survivors BB charter updates the statutory reference from section 228.056(10)(c) to section 1002.33(8). Furthermore, the charters do not indicate that the termination process is excluded from the Administrative Procedure Act.

On January 13, 2006, the School District completed an audit report for both Survivors WPB and Survivors BB. The audit report included fourteen findings of fiscal mismanagement. On January 18, 2006, the Palm Beach County School Board considered the audit report. On January 23, 2006 (the parties do not dispute this date although it is not reflected on the document), the School Board published a Notice of Special Meeting listing a special meeting for January 25, 2006 from 5:00-6:00 p.m. regarding Disposition of Charter Schools/Alternative Education. On January 24, 2006, the School Board hand-delivered "Notification[s] of Superintendent's Recommendation to Immediately Terminate Charter Agreement" to both Survivors WPB and Survivors BB. The notifications indicated that the recommendations for immediate termination based on good cause were "due to the severity of the Audit Findings" and that the recommendations would be considered at the noticed special meeting on January 25, 2006.

On January 25, 2006, the School Board held the noticed special meeting regarding the Survivors' charters at which it heard public comments (including from some individuals affiliated with Survivors). At the special meeting, the School Board approved the termination of the Survivors WPB and Survivors BB charters. Following the special meeting, the School Board hand-delivered "Notification[s] of Immediate Termination [of] Charter Agreement" to both Survivors WPB and Survivors BB. The notifications indicated that the terminations were based on section 1002.33(8)(d) and General Provision J of the charters and would become effective in twenty-four hours.

Survivors appealed the School Board's decision to the Charter School Appeal Commission (CSAC), and an informal hearing (at which representatives of Survivors spoke and asserted due process concerns) was held before the CSAC. The CSAC declined to review evidence proffered by Survivors that was not before the School Board. Regarding Survivors BB, the CSAC voted that the School Board had competent, substantial evidence to support its finding regarding the severity of the audit report. The CSAC also voted that the School Board had good cause for the immediate termination of the Survivors BB charter. Finally, the CSAC voted to recommend denying Survivors' appeal of the termination of the Survivors BB charter. Regarding Survivors WPB, the CSAC voted that the School Board had competent, substantial evidence to support its finding regarding the severity of the audit report. The CSAC then voted that the School Board did not have good cause for the immediate termination of the Survivors WPB charter. Finally, the CSAC voted to recommend granting Survivors' appeal of the termination of the Survivors WPB charter. Following the hearing, the CSAC prepared written recommendations regarding both Survivors BB and Survivors WPB.

Survivors then appealed to the State Board of Education. The Board of Education reviewed the CSAC's recommendations regarding the termination of the Survivors charters at a meeting (at which representatives of Survivors again spoke after submitting a brief raising due process concerns). The Board of Education voted to uphold the CSAC's recommendation regarding Survivors BB. The Board of Education voted to overturn the CSAC's recommendation regarding Survivors WPB. Following the meeting, the Board of Education entered final orders upholding the termination of both the Survivors BB and Survivors WPB charters.

Although Survivors raises eleven issues, this appeal involves two key questions. The first is whether the Administrative Procedure Act (APA) applied to the School Board's charter termination process. The second is, if the APA did apply, what due process protections were required and whether they were provided by the School Board.

The first question to be answered in this appeal is whether the provisions of the APA apply to the charter school termination process set forth in Florida Statutes section 1002.33. The APA applies to agencies, including educational units, which include local school districts such as the School Board. § 120.52(1)(b)7., (6), Fla. Stat. The provisions of the APA apply "in all proceedings in which the substantial interests of a party are determined by an agency" (with some exceptions not relevant in this case). § 120.569(1), Fla. Stat. To establish that the substantial interests of a party will be determined by an agency "requires a showing that (1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect." Fairbanks, Inc. v. State, Dept. of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994). Florida Statutes section 120.63 permits exemptions from the APA upon application of an agency under certain circumstances, but there is no indication that the School Board was so exempt (and the charters did not include an express APA exemption). Additionally, Florida Statutes section 120.81(1) provides APA exceptions for educational units, but none of these address the charter school termination process.

Under section 1002.33, a district school board may terminate a school charter for reasons specified in the statute under section 1002.33(8), and the charter school may appeal to the Charter School Appeal Commission (CSAC) and then the State Board of Education based on the procedures set forth in section 1002.33(6). As part of the procedures set forth in section 1002.33(6), the statute expressly exempts the State Board of Education from the provisions of the APA in section 1002.33(6)(c) and the statute expressly exempts the CSAC from the provisions of the APA in section 1002.33(6)(f)2. Conspicuously absent in section 1002.33 is any provision exempting the School Board's termination decision from the provisions of the APA.

Based on our reading of chapter 120 and section 1002.33, we conclude that the process leading to the School Board's termination decision was subject to the APA. Under section 120.52, the School Board is an agency to which the APA generally applies. Under section 120.569, the School Board's decision is one to which the APA applies. This is because the charter school termination proceedings determine a substantial interest...