QUESTION: Whether the school board's determination of "competent substantial evidence" within the meaning of Section 228.056(4)(c), Fla. Stat., implies that an evidentiary hearing be held after receipt of the State Board of Education's recommendation?

CONCLUSION: Yes.

DISCUSSION: Section 228.056(4)(c), Fla. Stat., provides that a school board may reject a recommendation made by the State Board of Education only for "good cause." The statute further provides that "good cause" arises "only if the district school board determines by competent substantial evidence that approving the state board's recommendation would be contrary to law or contrary to the best interests of the pupils or the community." Good cause must be evidenced in writing showing specific findings supporting the failure to act in accordance with the state board's recommendation. The district board's action is final agency action subject to judicial review.

It stands to reason that the district school board's good cause determination occur after receipt of the state board's recommendation. Good cause can only exist following the district board's determination supported by competent and substantial evidence. The issue arises as to whether the district board's good cause determination may be based on a record containing competent and substantial evidence which predates the state board's recommendation. We conclude that a district board's good cause determination should be based on competent and substantial evidence adduced after the receipt of the state board's recommendation. Such evidence, in whatever form it takes, may have existed as part of the record of the district board's hearing on the initial application (e.g., the application, exhibits, and testimony for the board). However, we construe a Legislative intent to require that any refusal to act favorably on the state board's recommendation be based on a separate hearing conducted by the district board after receipt of the state board's recommendation. Our reading of the statute comports with our understanding of current practice among the school districts. Further, it frequently happens that the state board's recommendation does not consist of a simple up or down on the charter application. It may contain suggested modifications to the application, or propose other terms and conditions for the district board's consideration. A separate hearing to follow receipt of the recommendation is necessary in order to give full consideration to the state board's recommendation.

For the foregoing reasons, we answer the question in the affirmative. Please let me know if you need anything further.

JAR/mak

cc: Diane McCain, Director, Choice Office

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