STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARRY VARON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1557

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Myers, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on December 8, 1977.

APPEARANCES

For Petitioner: Petitioner appeared in propria persona

but was assisted in the presentation of his case by a colleague,

Mr. Henry E. Blackwell.

For Respondent: Mr. Anthony DeLuccia, Esquire

Post Office Box 2258

Fort Myers, Florida 32902

ISSUE

Petitioner has appealed his two week suspension from his position as a psychologist in respondent's employ.

FINDINGS OF FACT

1. Respondent's Division of Mental Health employs petitioner as a psychologist at G. Pierce Wood Hospital in Arcadia, a mental institution. Petitioner's duties as a psychologist involve "advanced professional work in the performance of general psychological services . . . [including] administering and interpreting complex psychological examinations for determining . . . social maturity and other mental traits." Petitioner's exhibit No. 2. Petitioner answers directly to Thomas Muller, who is responsible, in turn, to Dr. Jarrett Black, the assistant clinical director at G. Pierce Wood Hospital.

   
   

2. As part of an effort to identify which inmates at G. Pierce Wood Hospital, if any, could be better cared for as mentally retarded persons, a testing program was instituted. In this connection, Diane Retinger, an employee of respondent's Division of Mental Retardation, requested that the Vineland Social Maturity Scale (the Vineland scale) be used to evaluate certain inmates at G. Pierce Wood Hospital. On May 9, 1977, Mr. Muller, as acting director of

   the Hospital's department of psychology, asked petitioner to use the Vineland test to evaluate nine named persons. Mr. Muller instructed petitioner not to interview the inmates who were to be evaluated. Mr. Muller testified that the reason for this stipulation was that he was under the impression that physicians at G. Pierce Wood Hospital would not refer patients to the Hospital's psychology department for therapy, if petitioner was assigned as the therapist. When Mr.

   Muller directed petitioner to use the Vineland scale, petitioner asked for additional guidelines for administration of the test, which Mr. Muller secured and furnished petitioner.

   
   

3. On May 24, 1977, petitioner refused in writing to administer the Vineland test but offered to administer "some more objective and direct method of psychometric assessment . . . includ[ing] the Rorschach; Bender Motor Gestalt Test; Draw A Person; Memory For Design; Thematic Apperception Test; Wechsler Adult Intelligence Scale; Wechsler Intelligence Scale For Children; DAT or WRAT." Petitioner believed that to use the Vineland scale as he had been instructed to use it would constitute a breach of professional ethics and might result in unjustifiable stigmatization, unduly onerous incarceration or unjustifiably extended incarceration of the persons evaluated. On May 24, 1977, petitioner received a written reprimand for insubordination and was advised that he would "be given 7 days notice to reconsider administering this accepted test, or his dismissal w[ould] be recommended." Petitioner's exhibit No. 1 On June 14, 1977, Mr. Muller recommended petitioner's dismissal and on June 17, 1977, petitioner was suspended for two weeks. After his return to work, petitioner was again requested to administer the Vineland scale and did use it to evaluate six or seven persons. Mr. Muller then decided that, without some confirming observations of the subject, the Vineland scale might yield misleading results and that he would prefer that another instrument be used.

   
   

4. The Vineland scale was devised in the 1930's by Edgar A. Doll, a psychologist. It consists of a list of one hundred seventeen (117) kinds of behavior ranging from "Balances head" to "Inspires confidence." Joint exhibit No. 1.

   
   

   The items of the Scale are to be scored on the basis of information obtained from some- one intimately familiar with the person scored, such as the mother, the father, a close relative, guardian, attendant, or supervisor. The subject examined (the S) need not be present or observed, since the informant acts as proxy for the S. Joint exhibit No. 2, pp. 8-9.

   
   

   There is no requirement that the examiner take up the items of the Vineland scale in any particular order, but it is "important to avoid leading questions and to follow up all general answers with detailed questions." Joint exhibit No. 1, p. 9. In scoring, the examiner "must use his own discretion as to the variations in circumstances that satisfy the central requirement of each item." Joint exhibit No. 2, p. 10. Scoring yields a number denominated the "social quotient."

   
   

5. In Florida, the Vineland scale "is overwhelmingly the most commonly used [to determine] eligibility [for treatment as a mentally retarded person]," petitioner's exhibit No. 3, but it is always used in conjunction with other tests. Unbeknownst to petitioner, the nine persons whom petitioner was asked to evaluate by using the Vineland scale had already been interviewed and had

   already taken IQ tests. Some of the tests petitioner offered to administer when he declined to use the Vineland scale are IQ tests, which would have been redundant, and others are designed to be administered over a period of several days and would have been substantially more expensive to administer for that reason. Respondent's Division of Retardation sometimes uses the AAMD Adaptive Behavior Scale in lieu of the Vineland scale. At the final hearing, petitioner indicated he would not object to administering the AAMD Adaptive Behavior Scale, although, like the Vineland scale, this scale may be predicated on information from somebody other than the person to be evaluated.

   
   

   CONCLUSIONS OF LAW

   
   

6. Respondent has the burden to establish sufficient cause for suspending petitioner. Section 110.061, Florida Statutes (1975). In ordinary circumstances, an employee's refusal to follow his supervisor's directives constitutes sufficient cause. In the present case, however, petitioner's fears that administering the Vineland scale while avoiding contact with the persons to be evaluated would yield unreliable results were well-founded. At the same time the consequences of an inaccurate evaluation were known to him to be very grave, viz., the possibility of incarceration for life for a person misjudged to be mentally retarded. In the exceptional circumstances of the present case, which included the availability of an acceptable alternative instrument, the AAMD Adaptive Behavior Scale, petitioner's refusal to administer the Vineland scale did not constitute sufficient cause for disciplinary action against petitioner.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent pay petitioner the salary he would have earned if he had worked during the period of his suspension.

DONE and ENTERED this 19th day of January 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Barry Varon

268 N. W. Lakeview Boulevard Port Charlotte, Florida 33952

Mr. Anthony DeLuccia, Esquire Post Office Box 2258

Ft. Myers, Florida 32902

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AGENCY FINAL ORDER

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STATE OF FLORIDA CAREER SERVICE COMMISSION

BARRY VARON,

Petitioner,

vs. CASE NO. 77-1557

DOCKET NO. 77-152

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

Chairman Catherine W. Chapin and Members Charles D. Brooks and Edward T. Quigley participating.

This cause came on to be considered by the Career Service Commission on February 23, 1978 in Tallahassee, Florida. Upon consideration of the Recommended Order of Hearing Officer Robert E. Benton, Exceptions there to filed by the Agency, and the file on this appeal, the Career Service Commission hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order dated January 19, 1978. Based on these Findings of Fact, it is the conclusion of this Commission that the Agency did have sufficient cause for the disciplinary action suspending the Appellant for two weeks and that this action should be sustained. This Commission hereby rejects the Conclusions of Law and Recommendation of the hearing officer. Accordingly, it is

ORDERED that the action of the Agency, suspending the Appellant, Barry Varon, for two weeks is hereby sustained. It is further

ORDERED that the request for a de nova fact finding hearing submitted by the Agency is hereby denied.

DONE AND ORDERED this 24th day of April, A.D., 1978.

DECISION: Unanimous CATHERINE W. CHAPIN, Chairman Career Service Commission

CERTIFICATE OF SERVICE

I hereby certify that copy of the foregoing Order was forwarded by U.S. mail to, Anthony DeLuccia, Attorney, Post Office Box 2258, Fort Myers, Florida

32902; Barry Varon, 268 Northwest Lakeview Boulevard, Port Charlotte, Florida 33952; Mr. Art Adams, Personnel Director, Department of Health and Rehabilitative Services, 1323 Winewood Boulevard, Tallahassee, Florida 32301, this 28th day of April, A.D., 1978.

CAREER SERVICE COMMISSION

BY: Carolyn J. Bellis

Docket for Case No: 77-001557

Orders for Case No: 77-001557