ALJDEC decisions subject to certification as final

20F-RV-002-BCS · State Board for Charter Schools · 2021-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of Pinnacle Education - Kino, Inc. (Entity ID #81009, an Arizona for-profit corporation, operating Pinnacle Charter High School

No. 20F-RV-002-BCS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 18, 2021, February 19, 2021, February 22, 2021, February 26, 2021, and March 2, 2021, with the record held open to receive closing argument.

APPEARANCES: Muhammad Padelo, Business Manager, appeared on behalf of Pinnacle Education – Kino, Inc., which was represented by Deanna R. Rader and Jamie L. Mayrose. The Arizona Board of Charter Schools was represented by Assistant Attorney General Victoria J. Bergin.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona State Board for Charter Schools (Board) is authorized to execute charter contracts for the purpose of establishing charter schools in Arizona and is vested with the authority to provide supervision and oversight of the charter schools it sponsors.

The charter contract (Charter) between the Board and Pinnacle Education – Kino, Inc. (Pinnacle Kino) authorizes Pinnacle Kino to operate Pinnacle Charter High School (School) located in Nogales, Arizona.

Pursuant to A.R.S. § 15-183(I)(3), the Board is required to review a charter school’s performance in accordance with the Board’s academic, financial, and operational performance frameworks, at least every five years (Interval Review).

Interval Review Standards

During Interval Reviews, Charter Holders are rated as “Meets Standard”, “Does Not Meet Standard”, or “Falls Far Below Standard”.

A charter holder receives a “Meets Standard” rating if, at the time of the review, it is in compliance with all applicable laws, rules, regulations, and provisions of the charter contract so that no action is needed to bring the charter holder into compliance.

A charter holder receives a “Does Not Meet Standard” rating if it has brought itself into compliance or has taken prompt and sufficient movement toward compliance to the satisfaction of the Board.

A charter holder that fails to bring all deficiencies into compliance or take sufficient and prompt steps towards compliance receives a “Falls Far Below Standard”.

The Board’s Operational Framework consists of nine measures. If a charter holder receives a “Does Not Meet Standard” rating on more than five of those measures, the charter holder receives an overall rating of “Does Not Meet Standard”. A.A.C. R7-5-503(C).

A charter holder does not meet the Board’s minimum operational performance requirements if the charter holder receives an overall rating of “Does Not Meet Standard” in at least one of the two most recent years for which an overall rating is calculated. A.A.C. R7-5-403(E).

Pursuant to A.R.S. § 15-183(I)(3), the Board may “revoke a charter at any time if the charter school breaches one or more provisions of its charter or if the sponsor determines that the charter holder has failed to . . . . (b) Meet the operational performance expectations set forth in the performance framework.”

Pinnacle Kino Interval Review

In Fiscal Year (FY) 2020, Board staff conducted a Five-Year Interval Review of Pinnacle Kino, which included a site visit to the School on February 26, 2020 (Site Visit) and a desk review (Desk Review).

For FY 2020, Pinnacle Kino was rated “Does Not Meet Standard” for six of the nine measures, which resulted in an overall rating of “Does Not Meet Standard” for FY 2020. The measures rated “Does Not Meet Standard” were as follows:

Measure 1a: Does the delivery of the education program and operation reflect the essential terms of the educational program as described in the charter contract?

Measure 1b: Does the charter holder adhere to applicable education requirements defined in state and federal law?

Measure 2b: Is the charter holder administering student admission and attendance appropriately?

Measure 2c: Is the charter holder maintaining a safe environment consistent with state and local requirements?

Measure 2e: Is the charter holder complying with its obligations to the Board?

Measure 3: Is the charter holder complying with all other obligations?

Specifically, the Board identified the following items as the reason for the “Does Not Meet Standard” rating:

Measure 1a: Pinnacle Kino was not implementing the World of Work curriculum provided for in the Contract and had not requested or been approved for a Program of Instruction Amendment.

Measure 1b: Pinnacle Kino failed to maintain documentation of parental notification and consent for students placed in an English Language Learner program as required by federal law and the Arizona Department of Education (ADE).

Measure 2b: Pinnacle Kino failed to administer student admission and attendance as required by law in six different areas.

Immunization Requirements – Enrollment Packet

Pinnacle Kino stated in its enrollment packet that proof of immunization was required for enrollment. Pursuant to state law, proof of immunization is required prior to attendance, but not prior to enrollment.

Pinnacle Kino failed to disclose all options to provide immunization documentation other than a complete immunization record. Parents were not notified that they may also submit proof of an initial inoculation with a schedule for subsequent inoculations as permitted by statute.

Proof of Age and Identity – Website Handbook

In its website handbook, Pinnacle Kino failed to provide notice to parents and guardians of all acceptable forms of proof of age and identity as required by state law.

Transcripts – Website Handbook

In its website handbook, Pinnacle Kino stated that transcripts from all previously attended schools were required for enrollment in the School, but pursuant to Arizona law, the School has the duty to request student records directly from the previous school within 5 days after enrollment.

Test Results – Website Handbook

In its website handbook, Pinnacle Kino stated that test results, including AIMS and AzMerit scores, were required for enrollment in the School, but Arizona law does not provide for an enrollment preference based on test results.

Special Education Documentation – Website Handbook

In its website handbook, Pinnacle Kino stated that special education documents, such as a Multidisciplinary Evaluation Team report (MET), Individualized Education Program (IEP), and Section 504 plan (504), were required for enrollment in the School, but federal law prohibits discrimination based on disability and state law specifically prohibits consideration of a disability in admissions.

Attendance Policies – Website Handbook

In its website handbook, Pinnacle Kino stated that a student would be withdrawn after 10 absences when Arizona law provides that, to withdraw a student for 10 absences, those absences must be consecutive and unexcused.

Measure 2c: During the Site Visit, Pinnacle Kino evidenced a failure to maintain a safe facility consistent with state and local requirements when the State Fire Marshall Report showed a rating of “Fail”.

Measure 2e: Pinnacle Kino did not comply with its obligation to the Board when it failed to submit required documents by the specified deadline following the Site Visit.

Measure 3: Pinnacle Kino failed to comply with other obligations, including the following:

Pinnacle Kino failed to post all required information regarding teacher salary on its website and such posting was not on Pinnacle Kino’s homepage of the website.

Pinnacle Kino failed to maintain evidence of the following, as required by state law:

Parental notification and consent of withdrawal, and

Proof of age and identity including, but not limited, to birth certificates.

Program of Instruction

Prior to the Site Visit, Board staff reviewed Pinnacle Kino’s file and observed that, when the initial charter was granted, the program of instruction included World of Work. The Board failed to submit the initial charter contract.

Pinnacle Kino received the charter contract through a transfer in May 2003. Pinnacle Kino was bound by the terms of the initial charter when it received the charter, including the World of Work program.

The Renewal Charter Contract Between Arizona State Board for Charter Schools and Pinnacle Education – Kino, Inc. (Renewal Charter) executed on June 15, 2015, did not include the programs of instruction.

Pursuant to A.A.C. R7-5-303, charter holders are required to submit an amendment request to the Board when making any changes to the charter contract including a change in the program of instruction. All amendments require prior written approval by the Board.

During the Site Visit, the school principal stated that World of Work was no longer being used and instead “ECAP” was being utilized.

The 2019 – 2020 course list provided to the Board by Pinnacle Kino listed “ECAP” as a program of instruction, and did not include World of Work.

Following the Site Visit, Board Staff provided Pinnacle Kino the opportunity to submit additional information to establish that “ECAP” was merely a change in the name of the program from World of Work. In response, Pinnacle Kino submitted emails stating that World of Work was “outdated terminology” and was “[n]ow known as ECAP.” Pinnacle Kino never provided documentation showing what the “ECAP” curriculum was or that it was the same as the World of Work curriculum previously used.

At hearing, Pinnacle Kino did not deny that the World of Work program was identified as a program of instruction in the initial charter. Rather, Pinnacle Kino asserted that the World of Work program and its “ECAP” were the same program of instruction, with only the name changing.

The Board expressed concern that “ECAP”, “Education and Career Action Plan”, was now a student plan that the State Board of Education (SBE) and ADE require all high school students to make. All students in grades 9 through 12, beginning with the graduating class of 2013, are required to develop a plan in consultation with the parent or guardian and designated school personnel, that establishes and tracks their academic, career, postsecondary, and extracurricular activity goals.

Education Requirements

The Every Student Succeeds Act (ESSA) Section 1112(e)(3)(A) requires, within 30 days from the beginning of the school year, that schools notify parents if their student has been identified for an English Language Learner (ELL) program and their right to consent to their student’s participation in the program.

During the Site Visit, Board staff requested a list of students that had been placed in the ELL program and to view those students’ files. Pinnacle Kino advised Board staff that the student files were maintained at Pinnacle Kino’s parent company, MGRM’s offices in Tempe and that student files were not available at the School. As a result, Board staff randomly identified six students from Pinnacle Kino’s ELL program list and requested that the files of the students be emailed to the Board.

Upon review of the six files, Board staff determined that only two contained the notice forms, neither of which were signed by a parent/guardian and did not include any documentation that Pinnacle Kino had attempted to follow up with the parent or guardian.

Board staff determined that the four other files reviewed did not have a copy of the form that should be retained in the students’ files.

The Board argued that its guidance, which was published on the website after the time period at issue in this matter, “explicitly states that both the teacher and parent signatures and dates are required” on the ADE State-approved form, which was utilized by Pinnacle Kino. According to the ADE website, if a school is unable to obtain a parent signature, it must document three attempts made by the school to obtain a signature. While referencing the ADE website, the Board did not cite to any statutory or regulatory authority for such a requirement.

Pinnacle Kino’s ELL Director, Catalina Baldenegro, testified that it was her practice to send the notification forms to the parents of all ELL students with a note asking them to sign and return the forms. Ms. Baldenegro stated that if a signed notification form was not returned, she would call the parents two or three times to ask them to sign and return the notification form. Ms. Baldenegro maintained that she would also send another copy home for signature if the parents stated they had not received the notification form. Ms. Baldenegro testified that, while she often has telephone conversations with parents regarding the notification forms and asks them to sign and return it, few parents actually return the signed notification forms.

Ms. Baldenegro testified that she maintained the notification forms on site in Nogales and would scan and upload the forms to Pinnacle Kino’s “S” Drive, which was maintained at Pinnacle MGRM’s office in Tempe, Arizona. The “S” Drive includes all of a student’s records electronically in multiple subfolders. As a result, the contents of the “S” Drive for any particular student may be rather voluminous.

Pinnacle Kino indicated it provided the Board staff with the documents it requested from the students’ “S” Drive, but Board staff did not ask for the ELL documentation.

Student Admission and Attendance

During the Interval Review, Board staff identified six violations that resulted in a “Does Not Meet Standard” for the measure as to whether the charter holder was administering student admissions and attendance appropriately.

Immunization Requirements – Enrollment Packet

State law requires all public schools to obtain proof of immunization or a waiver prior to a student attending the school. A.R.S. § 15-872. Proof of immunization or waiver is not a requirement for enrollment, but is a prerequisite for attendance. Schools are required to notify families of this requirement and to fully explain all documentation that may be submitted as proof of immunization or a waiver.

During the Interval Review, Board staff noted that Pinnacle Kino’s enrollment packet listed proof of immunization as a required document to enroll in the school.

Following receipt of the Compliance Report, Pinnacle Kino provided additional documentation concerning immunization.

On or about March 4, 2020, Board staff emailed Mr. Padela thanking him for sending the documentation following the Site Visit, but noted that, while proof of immunization had been moved from the Required Forms section to the Supplemental Forms section in the enrollment packet, proof of immunization was still listed as a required form on the first page. Board staff included a screenshot of the following section of the Enrollment Packet for Mr. Padela’s reference:

To Enroll:

Complete the Enrollment Packet and submit to the school of choice or the district office or complete the Online Application at http://onlineadmission.net/pinnacle/.

Submit the required documents supporting Proof of Age/Identity, Proof of Arizona Residency, Proof of Immunization and PHLOTE form.

Submit supplemental documents to enable our school to better serve the student promptly.

The foregoing language also appeared in each of Pinnacle Kino’s following exhibits: Exhibit 4; Exhibit 7; Exhibit 8; and Exhibit 9.

Pinnacle Kino’s Exhibit 5 set forth Pinnacle Kino’s internal policies for enrollment and listed the following requirements for enrollment:

Students only need the following to enroll:

Complete Student Registration Form

Proof of Age/Identity (within 39 days of enrollment)

Proof of AZ Residency (within 10 days of enrollment)

Proof of Immunization or Exemption form (homeless student – within 5 days)

Enrollment department, Advisor, and Site Administrative Assistants need to follow up with the students missing forms.

The Board’s Compliance Report indicated that on March 5, 2020, Pinnacle Kino submitted an updated packet that brought the enrollment packet into compliance.

On June 11, 2020, Pinnacle Kino’s governing board unanimously passed a motion to approve the updates made to the enrollment packet. The minutes of the meeting stated that the updates were needed “per the requirements by the Charter Board” and this “will lead to . . . updates to the Online Application also.”

Proof of Age and Identity – Website Handbook

State law requires that when a student is enrolled in a school, the school must provide the parent with notice that he/she must submit proof of age and identity within 30 days of enrollment. A.R.S. § 15-828(A). Pursuant to the statute, the following documents may be accepted as proof of age and identity:

A certified copy of the pupil’s birth certificate,

Other reliable proof of the pupil’s identity and age, including a pupil’s baptismal certificate, an application for a social security number or original school registration records and an affidavit explaining the inability to provide a copy of the birth certificate.

A letter from the authorized representative of an agency having custody of the pupil pursuant to title 8, chapter 2 certifying that the pupil has been placed in the custody of the agency as prescribed by law.

In conjunction with the February 2020 Site Visit, Board staff conducted a Desk Review, which included a review of Pinnacle Kino’s handbook that was posted on its website.

Board staff testified that during her review of Pinnacle Kino’s online handbook, the only accepted proof of age and identity listed was a birth certificate.

On or about May 13, 2020, Mr. Padela emailed Board staff that Pinnacle Kino had updated its handbook in response to the Interval Review by correcting the section addressing proof of age and identity. Board staff ensured that the changes made included those to the proof of age and identity section of the handbook.

Transcripts, Test Results, and Special Education Records – Website Handbook

Arizona law requires that within five school days after enrolling a transfer student, a school is required to request a certified copy of the student’s record directly from the previous school. A.R.S. § 15-828(G). The responsibility to obtain the student’s records from a former school is upon the school, not the parents or student.

A student’s transcript, test results, and special education records would be part of the student’s record maintained by the former school.

A school may not require the submission of student transcripts, test results, or special education documents as a prerequisite for enrollment.

Charter schools are required to enroll all eligible students who submit a timely application. A.R.S. § 15-184. In the event the number of applications exceeds the capacity of a program, class, grade level, or building, the school must select pupils through an equitable selection process, such as a lottery.

Pursuant to A.R.S. § 15-184, charter schools are authorized to give enrollment preferences only to the following pupils:

Students returning to the charter school;

Siblings of pupils already enrolled in the charter school;

Children who are in foster care or meet the definition of unaccompanied youth as prescribed in the McKinney-Vento homeless assistance act (41 United States Code section 11434(a)).

Children, grandchildren, or legal wards of:

Employees of the school

Employees of the charter holder

Members of the governing body of the school

Directors, officers, partners, or board members of the charter holder

Attended another charter school or are the siblings of that student if the charter school previously attended by the student has the identical charter holder, board, and governing board membership as the enrolling charter or is managed by the same educational management organization, charter management organization or education service provider as determined by the charter authorizer.

Enrollment preferences based on transcripts (grades or courses taken), test results, or disability (or lack thereof) are not permissible under Arizona law.

Pursuant to the Individuals with Disabilities Education Act (IDEA), charter schools are required to admit and provide services to students with special education needs.

During the desk review conducted in connection with the February 2020 Site Visit, Board staff reviewed Pinnacle Kino’s website handbook.

Pinnacle Kino’s website stated that transcripts, test results, and special education documents from all schools previously attended were required for enrollment.

In the May 13, 2020 email to Board staff, Mr. Padela stated that Pinnacle Kino had updated its handbook in response to the Interval Review.

The updated handbook was in compliance with Board requirements.

At hearing, Pinnacle Kino argued that the documents identified were requested to allow the school to be prepared to teach the student immediately upon enrollment. Pinnacle Kino also asserted that no student was ever denied admission for a failure to provide the documents or on the basis of any documents that were provided.

Attendance Policies – Website Handbook

Arizona schools are required to withdraw a student after ten consecutive, unexcused absences. A.R.S. § 15-901(A)(1).

During the desk review conducted in connection with the February 2020 Site Visit, Board staff reviewed Pinnacle Kino’s website handbook.

Pinnacle Kino’s website handbook stated that a “student will be withdrawn after the tenth absence.” It was not explained that the withdrawal was conditioned on the absences being consecutive and unexcused.

In the May 13, 2020 email to Board staff, Mr. Padela stated that Pinnacle Kino had updated its attendance policies in response to the Interval Review.

The updated policies were in compliance with Board requirements.

At hearing, Pinnacle Kino argued no student was withdrawn because of ten nonconsecutive or excused absences.

Safe Environment

A.R.S. § 34-461 provides that public buildings must comply with the fire code adopted by the city, town, county, or fire district in which the school district or charter school building is located.

During the February 2020 Site Visit, Board staff observed that the State Fire Marshal’s Inspection Report (Inspection Report) dated February 4, 2020, indicated that Pinnacle Kino had failed its inspection.

The Inspection Report noted five violations: 1) inspection, testing, and maintenance of alarm systems; 2) inspection, testing, and maintenance of sprinkler system; 3) lack of documentation evidencing drills and emergency planning (e.g. evacuation drills); 4) identified electrical hazards (use of extension cords as a substitute for permanent wiring); and 5) exit signs not operating properly.

Based on the Inspection Report, Pinnacle Kino received a “Does Not Meet Standard” for the Operational Performance Framework measure that determines whether the charter was maintaining a safe environment.

At hearing, Pinnacle Kino submitted documents demonstrating that the alarm system and sprinkler system had been inspected by private companies on February 18, 2020, and February 20, 2020.

On or about April 20, 2020, the Fire Marshall issued a re-inspection report with a “Pass.” The Fire Marshall testified that his general practice was to issue a re-inspection report within 24 hours of receiving information from the responsible individuals that the inspections have been completed and the other items have been remedied. He further testified that he generally did not perform a re-inspection, but relied on the statements of the individuals that the issues had been remedied. The Fire Marshall did not have any records to show when he had received the inspection reports from Pinnacle Kino.

Obligations to the Board

If issues of non-compliance are identified during a desk review or a site visit, the charter holder receives a rating of “Does Not Meet Standard” and is required to bring all issues into compliance and submit evidence of compliance to the Board by the specified date. A.A.C. R7-5-505(F).

On or about March 19, 2020, the Board notified Pinnacle Kino of the required submission as a result of the Site Visit and Desk Review and provided a due date of April 18, 2020.

Pinnacle Kino did not submit the requested documentation by the April 18, 2020 due date.

On or about April 27, 2020, nine days after the due date, Pinnacle Kino requested an extension of the due date. As the due date had already expired, the request for an extension was denied.

Because the documentation was not submitted by the April 18, 2020 due date, Board staff recorded a first dashboard mark for Pinnacle Kino’s failure to timely respond to the Board.

Board staff notified Pinnacle Kino that the requested documentation was still required and provided a new due date of May 4, 2020.

Pinnacle Kino submitted a request for an extension of the May 4, 2020 deadline. Because this request was submitted before the expiration of the deadline, the extension was granted and Pinnacle Kino was given until May 15, 2020, to submit the required documentation.

On or about May 13, 2020, Pinnacle Kino submitted documents to the Board; however, the submission was administratively incomplete. The Board notified Pinnacle Kino that the submission was incomplete and provided a due date of June 2, 2020, to submit complete documents. At this time, Board staff did not record a dashboard mark for the failure to timely respond to the Board.

Prior to June 2, 2020, Pinnacle Kino submitted additional documentation, but again it was incomplete. The Board again notified Pinnacle Kino that the submission was incomplete. At this time, Board staff did not record a dashboard mark for the failure to timely respond to the Board.

On or about June 16, 2020, Pinnacle Kino submitted additional documentation, but again it was incomplete. The Board again notified Pinnacle Kino that the submission was incomplete. At this time, Board staff recorded a second dashboard mark for the failure to timely respond to the Board.

On or about July 24, 2020, Pinnacle Kino submitted a Program of Instruction Amendment Request (Amendment Request) that was deemed administratively complete and proceeded to a substantive review. During the substantive review, the Amendment Request was deemed substantively incomplete. The Board had ongoing communication with Pinnacle Kino regarding required revisions.

On September 17, 2020, the Board approved the Amendment Request.

At hearing, Pinnacle Kino argued that the ongoing COVID-19 pandemic disrupted its ability to timely respond to the Board’s requests.

At hearing, the Board maintained that other schools undergoing reviews during this time either timely responded to Board requests for additional information or timely requested extensions of the due dates established by Board staff.

Other Obligations

During the Interval Review, Board staff identified two violations that resulted in a “Does Not Meet Standard” for the measure as to whether the charter holder was complying with all other obligations to the Board – posting of teacher salary and student record retention.

Posting of Teacher Salary

Each charter school is required to prominently post teacher salary information on the homepage of its website and separate from the budget. A.R.S. § 15-189.05(B). The posting must include the following:

The average salary of all teachers employed by the charter school for the current year.

The average salary of all teachers employed by the charter school for the previous year.

The dollar increase in the average salary of all teachers employed by the charter school for the current year.

The percentage increase in the average salary of all teachers employed by the charter school for the current year.

On or about May 14, 2019, a member of the public filed a complaint with the Board concerning Pinnacle Kino’s teacher salary posting. The complaint stated that Pinnacle Kino was “[n]ot in compliance with teacher salary information on its web page-only average salary is posted and you need to go from the main page to location and then click on the specific location to find it.”

On or about May 29, 2019, the Board notified Pinnacle Kino of the complaint and requested a response.

On or about June 6, 2019, Pinnacle Kino responded with a link to a website. Following its normal procedure, Board staff attempted to connect to the provided website, as a member of the public would, and found that the link did not bring up a website.

Board staff performed an internet search and was unable to find an individual website for Pinnacle Kino. Board staff located a website for Pinnacle Kino’s parent company, MGRM. The MGRM’s homepage did not contain any salary information for Pinnacle Kino or any of the associated schools.

On or about June 28, 2019, Board staff notified Pinnacle Kino of its inquiry results and requested additional information. Mr. Padela forwarded the request to Pinnacle Kino’s IT department.

On or about July 9, 2019, Pinnacle Kino’s IT department responded to Mr. Padela, who forwarded the information to Board staff. In the July 9, 2019 response, Pinnacle Kino stated that the MGRM website combined information from all of its associated schools, including Pinnacle Kino. According to the letter, MGRM started with separate websites for each associated school, but for marketing and expense purposes the websites were later merged into a single site. The letter added that individual websites had been re-enabled and were operational again.

The July 9, 2019 response also included screenshots with instructions for Board staff on how to navigate through the MGRM website to find information concerning Pinnacle Kino’s teacher salary information. According to the instructions, an individual going to the homepage of MGRM’s website would need to navigate to the “Locations” page, then navigate to the Pinnacle Kino page. On the Pinnacle Kino page, the average teacher salary for the 2018-2019 school year was published. The other statutorily required information was not included on the Pinnacle Kino page.

Student Record Retention

Board staff determined that Pinnacle Kino was noncompliant with retention of student records due to its alleged failure to properly maintain student withdrawal forms and documentation of student age and identity.

Withdrawal Forms

Pursuant to A.R.S. § 15-827, a pupil who enters a school shall present a properly executed withdrawal form if the pupil attended another school in this state. The withdrawal form shall contain all information required by the superintendent of public instruction. The information in the ADE-required withdrawal form includes a line for a parent or guardian signature.

During the Site Visit, Board staff requested a list of all students who had been withdrawn from the school from the beginning of the 2019 – 2020 school year through February 26, 2020.

Pinnacle Kino provided a list of withdrawn students for the requested time period.

Board staff reviewed the list provided and requested the student files of eight randomly selected students. Each of the selected filed contained a withdrawal form, but none of the eight withdrawal forms were signed by a parent, guardian, or student (if the student was no longer a minor).

Based on that review, Board staff requested that Pinnacle Kino submit copies of withdrawal forms for all student that had been withdrawn during the 2019 – 2020 school year, including the 55 students on the list provided at the Site Visit.

On or about June 2, 2020, Pinnacle Kino provided Board staff with 65 withdrawal forms.

Most of the withdrawal forms provided on June 2, 2020, were for withdrawals that occurred in May 2020, after the Site Visit. Board staff found that 58 withdrawal forms were not signed by a parent, guardian, or student, but were stamped with “Internal Transfer to PO-WMCB”, “Transfer to Nogales HS”, “Internal Transfer to Virtual”, or “Transfer to Po-WMCB”.

On or about August 6, 2020, Board staff requested that Pinnacle Kino provide copies of student files for 14 randomly selected transfer students who had withdrawn during the 2019 – 2020 school year.

During the review of the files, Board staff noted that none of the 14 forms entitled Official Notice of Pupil Withdrawal were signed by a parent, guardian, or student.

Some of the student files provided during the hearing included with the withdrawal form a second page entitled, Student Transfer Form (Site to Site), which was signed by the parent or guardian.

Pinnacle Kino argued that the withdrawal forms at issue were sufficient to comply with the requirements of the statute. While the parent or guardian signature was not always on the Official Notice of Pupil Withdrawal, the signature on the Student Transfer Form (Site to Site) was sufficient. Also, Pinnacle Kino maintained that nothing in the statute required that the signature had to be dated on the same date as the effective date of the withdrawal.

Board staff asserted that the Student Transfer Form (Site to Site) was not sufficient to comply with the statute and the signature of the parent or guardian had to be on the Official Notice of Pupil Withdrawal.

Proof of Age and Identity

Arizona statute requires that when a student is enrolled in a school, the school must notify the parent/guardian, in writing, that proof of age and identity must be provided within 30 days of enrollment. A.R.S. § 15-828(A).

Acceptable documentation establishing age and identity include:

A certified copy of the student’s birth certificate.

Other reliable proof of the student’s identity and age, including a student’s baptismal certificate, an application for a social security number or original school registration records and an affidavit explaining the inability to provide a copy of the birth certificate

A letter from the authorized representative of an agency having custody of the student pursuant to title 8, chapter 2 certifying that the student has been placed in the custody of the agency as prescribed by law.

The school is required to maintain a copy of the age and identity document in the student’s file.

Upon review of the 14 student files provided to the Board, Board staff determined that 8 of the 14 files were missing birth certificates or any other accepted documentation as proof of the student’s age and identity.

Six of the files contained copies of a parent’s driver’s license, which does not establish the age or identity of the student.

Board Actions

Pursuant to A.R.S. § 15-183(I)(3), the Board may revoke a charter at any time if the charter school breaches one or more provisions of tis charter or if the sponsor determines that the charter holder has failed to meet the requirements of the Board’s Operational Framework.

The Board’s Operational Framework consists of nine measures. If more than five of those measures are recorded as “Does Not Meet Standard”, the charter holder receives an overall rating of “Does Not Meet Standard”.

Based on the Interval Review findings detailed above, the Board determined that Pinnacle Kino was marked “Does Not Meet Standard” in six of the nine measures.

At its November 20, 2020 Board meeting, the Board unanimously voted to issue a notice of intent to revoke Pinnacle Kino’s charter contract.

Pinnacle Kino appealed the finding of the Board.

At hearing, Pinnacle Kino argued that it should not have been marked “Does Not Meet Standard” in more than five of the nine measures, it should not have received an overall rating of “Does Not Meet Standard”, and it should not have been brought before the Board for revocation.

In part, Pinnacle Kino argued that, because all of the metrics that had been marked “Does Not Meet Standard” had been corrected by the time the Board voted to issue the notice of intent to revoke, there was no longer any reason to move forward with the revocation.

Pinnacle Kino also asserted that, with respect to those issues involving documents necessary for enrollment, Pinnacle Kino had not denied any student enrollment based on the failure to provide those documents, or if submitted, based on what was included in the documents. Similarly, Pinnacle Kino stated that no student was unenrolled based on ten non-consecutive and/or excused absences.

At hearing, Pinnacle Kino argued generally that because Board staff did not request particular documents within the student files, Pinnacle Kino did not provide all the documents Board staff were seeking. Pinnacle Kino indicated that the students’ “S” drive could be rather voluminous and, without knowing exactly what Board staff was requesting, some documents may not have been provided.

CONCLUSIONS OF LAW

In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that grounds exist to revoke the School’s Charter and that revocation is an appropriate remedy. See A.R.S. § 41-1092.07(G)(2); A.R.S. § 15-183(I)(3); and A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). “It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

During Interval Reviews, Charter Holders are rated as “Meets Standard”, “Does Not Meet Standard”, or “Falls Far Below Standard”.

A charter holder receives a “Meets Standard” rating if, at the time of the review, it is in compliance with all applicable laws, rules, regulations, and provisions of the contract so that no action is needed to bring the charter holder into compliance.

A charter holder that fails to bring all deficiencies into compliance or take sufficient and prompt steps towards compliance receives a “Falls Far Below Standard”.

As to Pinnacle Kino’s overall argument that the Board should not proceed with revocation because, at the time the Board voted to issue the notice of intent to revoke, Pinnacle Kino had resolved all the matters that had been rated as “Does Not Meet Standard”, such a position ignores the statutory structure in place regarding the Operational Framework.

As set forth supra, if Pinnacle Kino failed to bring all the identified deficiencies into compliance, it would have been rated as “Falls Far Below Standard.”

Further, the statute specifically provides that a charter holder that has been marked “Does Not Meet Standard” in more than five of the measures is given an overall rating of “Does Not Meet Standard”. It follows that, if a charter holder receives an overall rating of “Does Not Meet Standard” in one of the two most recent years, it does not meet the Board’s minimum operational performance requirement. Finally, if a charter holder does not meet the operational performance requirement, the Board has the authority to revoke the charter at any time.

Accordingly, if the Board properly concluded that Pinnacle Kino was rated “Does Not Meet Standard” in the six identified measures outlined in the Interval Review, the Board had the authority to proceed with the notice of intent to revoke.

Program of Instruction

A.A.C. R7-5-303 provides, in pertinent part, as follows:

A. A change to a charter requires the consent of both the Board and charter holder. To obtain the Board's consent to a change to a charter, the charter holder shall submit a charter amendment request to the Board.

B. A charter holder shall not act in a manner contrary to the terms of the charter without obtaining the Board's prior consent to the change.

. . . .

D. The Board shall accept requests for the following charter amendments:

. . . .

8. Change in program of instruction including methods of instruction, criteria for promotion, and graduation requirements;

The uncontroverted evidence presented at hearing established that the “World of Work” program was incorporated into Pinnacle Kino’s original charter, but at the time of the Interval Review, Pinnacle Kino was using the “ECAP” program. Further, Pinnacle Kino had not submitted an amendment request to the Board regarding the change of program.

Whether the change from “World of Work” to “ECAP” was merely a change in name or the program itself was not established during the hearing. Pinnacle Kino failed to provide any evidence of the program contents other than the testimony of the witnesses saying they were the same thing.

Accordingly, the Administrative Law Judge concludes that Pinnacle Kino was properly rated as Does Not Meet Standard for this criteria.

Education Requirements

Section 1112(e)(3)(A) of the ESSA provides, in pertinent part, as follows:

LANGUAGE INSTRUCTION.—

NOTICE.—Each local educational agency using funds under this part or title III to provide a language instruction educational program as determined under title III shall, not later than 30 days after the beginning of the school year, inform parents of an English learner identified for participation or participating in such a program, of—

the reasons for the identification of their child as an English learner and in need of placement in a language instruction educational program;

the child's level of English proficiency, how such level was assessed, and the status of the child's academic achievement;

the methods of instruction used in the program in which their child is, or will be, participating and the methods of instruction used in other available programs, including how such programs differ in content, instructional goals, and the use of English and a native language in instruction;

how the program in which their child is, or will be, participating will meet the educational strengths and needs of their child;

how such program will specifically help their child learn English and meet age-appropriate academic achievement standards for grade promotion and graduation;

the specific exit requirements for the program, including the expected rate of transition from such program into classrooms that are not tailored for English learners, and the expected rate of graduation from high school (including four-year adjusted cohort graduation rates and extended-year adjusted cohort graduation rates for such program) if funds under this part are used for children in high schools;

in the case of a child with a disability, how such program meets the objectives of the individualized education program of the child, as described in section 614(d) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)); and

information pertaining to parental rights that includes written guidance—

detailing the right that parents have to have their child immediately removed from such program upon their request;

detailing the options that parents have to decline to enroll their child in such program or tochoose another program or method of instruction, if available; and

assisting parents in selecting among various programs and methods of instruction, if more than 1 program or method is offered by the eligible entity.

SPECIAL RULE APPLICABLE DURING THE SCHOOL YEAR.—For those children who have not been identified as English learners prior to the beginning of the school year but are identified as English learners during such school year, the local educational agency shall notify the children's parents during the first 2 weeks of the child being placed in a language instruction educational program consistent with subparagraph (A).

PARENTAL PARTICIPATION.—

IN GENERAL.—Each local educational agency receiving funds under this part shall implement an effective means of outreach to parents of English learners to inform the parents regarding how the parents can—

be involved in the education of their children; and

be active participants in assisting their children to—

(aa) attain English proficiency;

(bb) achieve at high levels within a well-rounded education; and

(cc) meet the challenging State academic standards expected of all students.

REGULAR MEETINGS.—Implementing an effective means of outreach to parents under clause (i) shall include holding, and sending notice of opportunities for, regular meetings for the purpose of formulating and responding to recommendations from parents of students assisted under this part or title III.

BASIS FOR ADMISSION OR EXCLUSION.—A student shall not be admitted to, or excluded from, any federally assisted education program on the basis of a surname or language-minority status.

NOTICE AND FORMAT.—The notice and information provided to parents under this subsection shall be in an understandable and uniform format and, to the extent practicable, provided in a language that the parents can understand.

Nothing in the ESSA requires that a school has to maintain documentation of parental notification and/or consent for students placed in an ELL program. Further, no evidence was presented at the hearing that ADE required or instructed schools to maintain such documentation at the time of the Interval Review.

While it would certainly be best practice for a school to maintain the documentation establishing that it had notified a parent and/or had made multiple attempts to collect a signature from a parent, there was no requirement during the time period at issue to do so.

Accordingly, Pinnacle Kino should not have been rated as Does Not Meet Standard for this criteria, but should have been rated as Meets Standard.

Student Admission and Attendance

A.R.S. § 15-872 details the requirements of proof of immunization that a student must provide prior to attendance, not enrollment, at a school.

A.R.S. § 15-828(A) details the requirements of proof of age and identity that a student must provide within 30 days of enrollment at a school.

A.R.S. § 15-828(G) requires that within five days after enrolling a transfer pupil from another school, the school shall request the student’s records directly from the prior school.

A.R.S. § 15-184 details the students that a charter holder may give preference to when making enrollment determinations.

A.R.S. § 15-901(A)(1) provides that students may be formally withdrawn from a school after ten consecutive unexcused absences.

As to all of these measures that Pinnacle Kino was rated as “Does Not Meet Standard”, Pinnacle Kino seemingly agreed that its website handbook at the time of the Interval Review was not in line with the statutory requirements and has subsequently changed its handbook.

Pinnacle Kino argued that no adverse action was ever taken against a student pursuant to the erroneous information included in the website handbook, including the refusal to enroll a student who did not provide information that was identified as required in the website handbook or based on the information included in any documents provided that were identified as required in the website handbook in contradiction to statutory authority.

However, Pinnacle Kino’s argument fails to consider the potential group of students who considered enrolling at the school, but upon a review of the erroneous information included in the website handbook, decided not to do so for whatever reason. Thus, it cannot be said that the erroneous information in the website handbook had no impact on enrollment at Pinnacle Kino.

Accordingly, the Administrative Law Judge concludes that Pinnacle Kino was properly rated as Does Not Meet Standard for this criteria.

Safe Environment

Pursuant to A.R.S. § 34-361, charter school buildings must comply with the fire code adopted by the city, town, county, or fire district in which the charter school building is located.

At the time of the Site Visit, the February 4, 2020 Inspection Report indicated that Pinnacle Kino had failed its inspection. Pinnacle Kino did not receive a passing re-inspection report until April 20, 2020.

The Inspection Report established that Pinnacle Kino failed to maintain a safe facility consistent with state and local requirements.

Accordingly, the Administrative Law Judge concludes that Pinnacle Kino was properly rated as Does Not Meet Standard for this criteria.

Obligations to the Board

A.A.C. R7-5-505(E) provides that after a site visit, the Board shall provide the charter holder a written notice of any compliance issues identified and provide a deadline for addressing the issues.

A.A.C. R7-5-505(F) provides that after receiving the notice from the Board, the charter holder shall provide the Board with written notice demonstrating that all identified compliance issues have been addressed by the specified deadline.

Following the Site Visit, Pinnacle Kino was provided with multiple deadlines from the Board to bring the identified issues into compliance.

Of particular note, the Board provided an initial deadline of April 18, 2020, and Pinnacle Kino failed to provide the required documentation by that date or request an extension of that deadline.

In March 2020, the world was greatly impacted by the COVID-19 global pandemic. And while it certainly affected the school system at large and Pinnacle Kino in particular, it did not eliminate the need for Pinnacle Kino to comply with the deadlines imposed by the Board. As the evidence presented at the hearing established, other schools were able to request extensions of the deadline during the same time period.

Pinnacle Kino’s ongoing failure to comply with Board’s deadlines established that Pinnacle Kino failed to meet its obligations to the Board.

Accordingly, the Administrative Law Judge concludes that Pinnacle Kino was properly rated as Does Not Meet Standard for this criteria.

Other Obligations

During the Interval Review, two other violations that fell into all other obligations to the Board were identified by the Board.

Posting of Teacher Salary

Pursuant to A.R.S. § 15-189.05(B), each charter school is required to “prominently post” on its website homepage separately from its budget the following information: the average salary of all teachers employed by the charter school for the current year, the average salary of all teachers employed by the charter school for the previous year, the dollar increase in the average salary of all teachers employed by the charter school for the current year, and the percentage increase in the average salary of all teachers employed by the charter school for the current year.

The uncontroverted evidence established that the required information was not prominently posted on Pinnacle Kino’s website homepage. The information was also not prominently posted on MGRM’s website homepage.

Student Record Retention

Withdrawal Forms

Pursuant to A.R.S. § 15-827, a withdrawal form must include all the information required by the superintendent of public instruction, including the section for the parent or guardian signature.

While some of the files provided by Pinnacle Kino included a second form that had a space for and was signed by a parent or guardian, some files did not did not include that information.

Given that a parent or guardian signature was not included on each of the withdrawal forms for students or the Student Transfer Form (Site to Site) form specific to Pinnacle Kino identified during the hearing, Pinnacle Kino failed to comply with this requirement.

Proof of Age and Identity

As previously detailed, A.R.S. § 15-828(A) details the requirements of proof of age and identity that a student must provide within 30 days of enrollment at a school. The school is required to maintain that proof of age and identity

The student records provided at hearing did not include the required proof of age and identity for all the students.

It was concerning to the Administrative Law Judge that Board staff did not specifically identify what documents in the student files the Board was seeking throughout the Interval Review. Given the electronic method of keeping records, it would have undoubtedly simplified the process and ensured Pinnacle Kino could fully respond to the requests made of it.

Accordingly, the Administrative Law Judge concludes that Pinnacle Kino was properly rated as Does Not Meet Standard for this criteria.

Conclusion

As Pinnacle Kino was improperly rated as Does Not Meet Standard for the Education Requirement criteria, Pinnacle Kino was also improperly given an overall rating of Does Not Meet Standard.

Had Pinnacle Kino been properly been given an overall rating of Meets Standard, the Board would not have had the authority to issue the notice of intent to revoke Pinnacle Kino’s charter contract.

Accordingly, the Administrative Law Judge concludes that the Board improperly issued the notice of intent to revoke Pinnacle Kino’s charter contract and Pinnacle Kino’s appeal should be upheld.

It is also noted that following the submission of the parties’ written closing arguments, Pinnacle Kino filed a Motion to Strike based on the Board’s inclusion of eight specific items in its written closing that were not submitted or addressed at the hearing and therefore, Pinnacle Kino did not have the ability to address during the hearing. The Board filed a response to the Motion to Strike and Pinnacle Kino filed a reply.

Pinnacle Kino’s Motion to Strike is well taken and the information referenced therein was not considered in rendering this Administrative Law Judge Decision.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the order entered in this matter, the Board withdraw its notice of intent to revoke previously issued to Pinnacle Kino.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be five days from the date of the certification.

-54864001

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-137160-45720000Done this day, August 23, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Ashley Berg,

State Board for Charter Schools-54864001

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-137160-45720000