COMMONWEALTH vs. ROXBURY CHARTER HIGH PUBLIC SCHOOL.

GREEN, J. The defendant charter school (school) appeals from a judgment of the Superior Court, which affirmed a decision of the Board of Education (board) revoking the school's charter. We conclude that the board's decision was supported by substantial evidence, and that the school's motion to supplement the administrative record, under G. L. c. 30A, § 14(6), was properly denied. We accordingly affirm the judgment.

Page 50

Background. On June 5, 2002, the board granted the school a charter as a Commonwealth charter school under G. L. c. 71, § 89(a). [Note 1] After a planning year, the school opened its doors in the fall of 2003 to sixty-nine entering ninth grade students. In the fall of 2004, enrollment increased to 104 students with a second entering class of ninth graders. However, in both instances the school's enrollment was significantly below the levels projected in its charter application. By the beginning of the 2004-2005 academic year, the board had already developed serious concerns about the school's financial viability, among other issues.

In early October, 2004, seven employees of the Department of Education (department) conducted a coordinated program review of the school. [Note 2] In November, 2004, the department conducted a site visit, extending over two days, for the purpose of assessing the school's programs and operations. On December 14, 2004, the Commissioner of Education recommended to the board, in writing, that the board revoke the school's charter, effective as of December 30, 2004. Reports of both the October coordinated program review and the November site visit were filed with the board before its vote, on December 21, 2004, to revoke the school's charter, effective as of June 30, 2005 (the end of that academic year).

The board's vote was subject to the school's right to request an administrative hearing, and the school requested such a hearing. The administrative hearing occurred over seven days between June 13 and June 30, 2005. [Note 3] In a forty-one page decision issued on August 8, 2005, the hearing officer designated by the board concluded that the board had cause to revoke the school's charter.

Page 51

The hearing officer's conclusion rested on four principal grounds. First, the hearing officer cited the school's failure to meet its enrollment projections, and the fact that enrollment had declined rather than improved over time. [Note 4] Second, he noted serious difficulties in the school's financial condition. [Note 5] Third, he observed that the school had failed to implement programs required by its charter or State and Federal law. [Note 6] Finally, he cited significant shortcomings in the school's governance and management structure. [Note 7]

At its meeting on September 14, 2005, the board adopted the hearing officer's decision, and again voted to revoke the school's charter. The board further directed the school to close, effective on Friday, September 16, 2005. The school continued its operations, despite the board's order, and the Commonwealth commenced an action in the Superior Court, pursuant to G. L. c. 30A, § 14, seeking to enforce its revocation decision. The school moved to expand the administrative record, pursuant to G. L. c. 30A, § 14(6), and the judge allowed the motion. However, on

Page 52

the Commonwealth's petition for interlocutory review under G. L. c. 231, § 118, first par., a single justice of this court vacated the order. [Note 8] Thereafter, following a hearing, a judge of the Superior Court concluded that the board's decision was supported by substantial evidence and that the board acted within its authority in revoking the school's charter. This appeal followed. [Note 9]

Denial of school's motion to supplement the administrative record. We begin by addressing the school's claim that it was improperly prevented from submitting additional material to supplement the administrative record, pursuant to G. L. c.30A, § 14(6). The question is before us in a somewhat unusual posture, in that (as we have observed) the Superior Court judge initially allowed the school's motion, but her order was vacated by a single justice of this court. The school filed a notice of appeal from the order of the single justice, but thereafter did not docket the appeal. The Commonwealth argues that the school's failure to pursue an appeal from the order of the single justice operated to waive any claim arising from the denial of its motion to supplement the administrative record. To the contrary, however, the orders of both the Superior Court judge and the single justice concerning the request to supplement the administrative record were interlocutory in nature, and therefore not appealable. See, e.g., Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412 (1996). Because the order of the single justice was not appealable, the school's failure to perfect or pursue an appeal from that order could not have waived anything. [Note 10]

That the school did not waive its right to review of its request

Page 53

to supplement the administrative record does not wholly resolve the posture of the question before us, however. The order of the single justice is not before us. See Manfrates v. Lawrence Plaza Ltd. Partnership, supra at 412. Compare Greenberg v. Greenberg, 10 Mass. App. Ct. 827, 828 (1980). Instead, we review the order of the Superior Court judge (who allowed the school's motion to expand the record) for abuse of discretion. See Sinnott v. Boston Retirement Bd., 402 Mass. 581, 585-586, cert. denied sub nom. Sinnott v. Radin, 488 U.S. 980 (1988); Manfrates v. Lawrence Plaza Ltd. Partnership, supra at 413. [Note 11]

Some formulations of the abuse of discretion standard suggest that, in order to disturb the trial court's order, a reviewing court would need "to come close to finding that the trial court had taken leave of its senses." Long v. Wickett, 50 Mass. App. Ct. 380, 386 n.8 (2000), quoting from Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 763 (1982). See Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266 (2001), quoting from Long v. George, 296 Mass. 574, 579 (1937) (abuse of discretion defined as action "that no conscientious judge, acting intelligently, could honestly have taken"). Such a formulation is unnecessarily pejorative in the circumstances of the present case, however, since abuse of discretion also occurs where judicial action exceeds the legal framework under which the judge is authorized to act. See Long v. Wickett, supra at 386-387 n.8. It is from the latter perspective that we (consistent with the view expressed by the single justice) conclude that the Superior Court judge erred in allowing the school's motion to supplement the record.

General Laws c. 30A, § 14(6) provides:

"If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of

Page 54

the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision."

By its motion, the school sought to introduce additional material of three types: (i) its audited financial statement for fiscal year 2005, showing that the school completed the year with a small surplus rather than a deficit; (ii) changes in the composition of the school's board of trustees, which the school argued would address the shortcomings in governance cited by the hearing officer; and (iii) Massachusetts Comprehensive Assessment System (MCAS) test results, showing that the school's students outperformed their peers at other Boston public high schools. The proposed evidence was immaterial to the issues in the case, so that there was no basis under § 14(6) to expand the record to include it. [Note 12]

As a threshold matter, we note that the school's audited financial statement was not even prepared at the time it filed its motion, and was not completed for several months thereafter. [Note 13] Moreover, it is immaterial that the statement, when completed, showed that the school completed the fiscal year with a small surplus, because the hearing officer expressly anticipated that possibility in his decision, and stated his view that such a result would not alter his conclusions concerning the school's prospective financial viability.

The school's reliance on changes in the composition of its board, as addressing the cited shortcomings in its governance structure, is puzzling, since the hearing officer had before him

Page 55

at the hearing, and acknowledged in his findings, the fact that three new trustees had already joined the school's board. Moreover, the school invoked the same changes of trustees in its unsuccessful motion for reconsideration directed to the board in May, 2005. Because the changes in the composition of the school's board of trustees were before both the hearing officer and the board before the board's revocation vote, expansion of the administrative record to include such information would add nothing.

Lastly, MCAS test results are immaterial to the issues in the case, because student academic performance formed no part of the hearing officer's conclusion that there was cause to revoke the school's charter. [Note 14]

There was no legal basis under G. L. c. 30A, § 14(6), to warrant presentation of the additional evidence proposed by the school, and the Superior Court judge accordingly erred in allowing the school's motion. [Note 15]

Substantial evidence supporting the board's decision. In an appeal under G. L. c. 30A, § 14, we review the board's decision to see whether it is supported by substantial evidence. General Laws c. 30A, § 1(6), defines substantial evidence as "such evidence as a reasonable mind might accept as adequate to support a conclusion." The test takes into account the entire administrative record, including both the evidence supporting the decision and whatever fairly detracts from its weight. See Covell v. Department of Social Servs., 439 Mass. 766, 783 (2003). Nonetheless, "[i]t is a standard of review 'highly deferential to the agency,' which requires . . . according 'due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority

Page 56

conferred upon it.' " Friends & Fishers of the Edgartown Great Pond, Inc. vs. Department of Envtl. Protection, 446 Mass. 830, 836 (2006), quoting from Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684, 695-696 (1998). See generally New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981), and cases cited.

Under G. L. c. 71, § 89(kk), "[t]he board may revoke a school's charter if the school has not fulfilled any conditions imposed by the board in connection with the grant of the charter or the school has violated any provision of its charter." The board has promulgated regulations further defining cause for charter revocation or suspension. See 603 Code Mass. Regs. § 1.13(1) (2004). [Note 16]

The projected enrollment levels represented in the school's charter application were incorporated into the charter itself, and the substantial shortfall between the school's actual enrollment and the projections supporting its charter application accordingly constituted a violation of the school's charter. Moreover, as the hearing officer observed, the trend in enrollment was negative, and by the beginning of the second year of operations

Page 57

not only was enrollment far below projected levels, but there was no waiting list of students seeking admission. [Note 17]

The school also failed to develop any individual learning plans (ILP), a centerpiece of the school's program as described in its charter. [Note 18] At the administrative hearing, the school submitted no ILPs in evidence. Moreover, the school's executive director testified at the hearing that he saw no evidence of any "learning contract," which was to have comprised one-half of the ILP program. The hearing officer further found that the school did not provide teacher training in the Adaptive Learning Environments Model (ALEM) method, [Note 19] or the development or use of ILPs.

The school also was not handicapped accessible, in violation of Federal and State accessibility laws, and G. L. c. 71, § 89(l). [Note 20] Moreover, the school failed to qualify for special education funding in its first year, it lacked qualified special education teachers, and its special education director was not certified.

The shortfall in student enrollment contributed directly to the school's precarious financial condition. However, fiscal mismanagement exacerbated an already difficult situation. Though the hearing officer did not conclude that the school was financially insolvent, or that the governance failures rose to "gross mismanagement," as set forth in 603 Code Mass. Regs.

Page 58

§ 1.13(1)(c) or (e), he rightly observed that the school held little prospect of improving or addressing the shortcomings earlier noted without the stability furnished by a sound financial condition and capable management.

Conclusion. The board's decision to revoke the school's charter was supported by substantial evidence. The judgment of the Superior Court is accordingly affirmed. [Note 21]

So ordered.