STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARK P. GEFFON, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1561
)
COLLEGE OF DENTISTRY OF )
THE UNIVERSITY OF FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on October 29 and 30, 1979, in Gainesville, Florida.
APPEARANCES
For Petitioner: Selig I. Goldin, Esquire
Post Office Box 1251 Gainesville, Florida 32602
For Respondent: Thomas S. Biggs, Jr., Esquire
University Attorney
207 Tigert Hall Gainesville, Florida 32611
Mark P. Geffon ("Petitioner") filed a petition with the office of the President of the University of Florida ("Respondent") seeking to compel the award of a diploma from the College of Dentistry at the University of Florida or, alternatively, a reasonable opportunity to complete any deficiencies under the curriculum and procedures applicable to his entering class. Thereafter, Respondent requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct formal proceedings in this cause. Final hearing in this proceeding was scheduled for October 29 and 30, 1979, by Notice of Hearing dated August 21, 1979.
At the final hearing, Petitioner testified in his own behalf and called Robert L. Boyd and Frank A. Coscia as his witnesses. Petitioner offered Petitioner's Exhibits 1 through 45, inclusive, each of which was received into evidence. Respondent called Don L. Allen, Marc A. Gale, Clair D. Reitz, T. Dwyght Clark, Caleb King, Norman R. Archambo, Frank J. Vertucci, Donald E. Antonson, Samuel B. Low, Park L. Weldy, A. Lewis Leo and Linda George as its witnesses. Respondent offered Respondent's Exhibit No. 1, which was received into evidence.
At the conclusion of the final hearing in this proceeding, counsel for both Petitioner and Respondent waived the requirement of Chapter 120, Florida
Statutes, that a Recommended Order be entered by the Hearing Officer within thirty days from conclusion of the final hearing.
FINDINGS OF FACT
Petitioner enrolled as a student in the College of Dentistry, University of Florida, in the fall quarter of 1974. Petitioner's entering class was denominated by Respondent as the "Gamma" class.
The curriculum at the College of Dentistry is divided into four components: Phase A; modular curriculum; selective program; and clinical conference. Of these, Phase A and the modular curriculum comprise the major portion of a dental student's education. The modular curriculum, which is apparently unique to Respondent's institution, is designed with a great deal of flexibility and individualization. Little emphasis is placed upon formal lectures, and after completion of basic level courses, students are allowed to perform the requirements of the modular portion of the curriculum at their own pace. As a student completes the various course modules, members of the thirteen different departments in the College of Dentistry "sign off" on a student's performance, indicating satisfactory completion, and the student moves on to the next module, or course of study. Despite the fact that students are allowed to progress at their own rate, the program is designed essentially for completion in four years. The grading system utilized is "pass-fail", instead of the traditional "A-F" system.
Petitioner completed his third year in the College of Dentistry in good standing, and began what should have been his final year in September, 1977.
The Student Performance Evaluation Committee ("SPEC") is a standing committee within the College of Dentistry whose function is to monitor dental students' progress through the curriculum; to commend those students whose performance within the College is outstanding; to recommend students for promotion; and to identify those other students having difficulty in one or more parts of the curriculum in order to facilitate the taking of appropriate steps to assist those students. SPEC is composed of eight faculty members and four dental students.
In January, 1978, several clinical incidents involving Petitioner were brought to the attention of SPEC by way of recommendations from several members of the faculty in the departments of Operative Dentistry and Community Dentistry that Petitioner be placed on probation for a period of one quarter "... during which time his judgment and integrity be watched very closely ..."
(Petitioner's Exhibit #9). One of these incidents occurred on December 14, 1977, at which time Petitioner submitted an impression of an onlay preparation for evaluation to determine whether the impression was suitable to be poured up to make a restoration. Petitioner represented to a faculty member that the impression had previously been approved by another faculty member which, upon further investigation, proved to be untrue. In fact, the impression had been part of an earlier post-test and had been given a failing grade by two other faculty members. Other incidents involved substandard performance by Petitioner in the preparation and placement of tooth-colored restorative materials, two Class II amalgams and a large MOD preparation. Petitioner's performance with respect to the clinical incident involving tooth-colored restorative materials indicated that he did not seem to remember teaching material and that he bad difficulty evaluating his own work. The other clinical incident involving the two Class II amalgams and the MOD preparation indicated that Petitioner did not seem to ... have a grasp of operative dentistry, at times exercises poor
clinical judgment, and probably most importantly his attitude is very poor with regard to his own performance ... (Petitioner's Exhibit #9)
SPEC met on January 31 and February 1, 1978 to consider the incidents described above and, by memorandum dated February 1, 1978, recommended to the Dean of the College of Dentistry that petitioner be placed on probation through June 1, 1978, because his clinical skills in Operative Dentistry were inadequate. SPEC also recommended to the Dean that during the probationary period Petitioner's clinical judgment and management of patient records be closely monitored.
By letter dated February 2, 1978, the Dean of the College of Dentistry advised Petitioner that he had been placed on probationary status until June 1, 1978, and further informed Petitioner that "[y]ou clearly must realize the seriousness of this situation, and that your demonstrated clinical judgment and management will determine whether or not you are taken off probation (Petitioner's Exhibit #12).
During the 1978 spring quarter, while he was on probation, Petitioner submitted a patient to a part-time faculty member in the Department of Periodontics to be "checked off" as through phase one of periodontal therapy. Before this "checkoff", no restorative work utilizing gold material can be used on a patient, although amalgams and tooth-colored restorative materials are allowable. Petitioner advised the faculty member that he had performed some restorative work, but that he had done nothing that was not permissible prior to approval of completion of the first phase of periodontal therapy. Upon examination, however, it was discovered that Petitioner had, in fact, performed restorative work in the form of either onlays or inlays using gold. Upon being confronted with this fact, Petitioner advised the faculty member that some other unnamed faculty members in Operative Dentistry were "out to get him", and that he did not need any additional problems. The faculty member advised his department chairman of his observations, and the matter was referred to SPEC for consideration.
On February 17, 1978, Petitioner had a clinical appointment with a patient, and indicated to a faculty member that he was ready to take a final impression of a tooth which had been prepared for impression at an earlier appointment. Upon examination by the faculty member, it was discovered that the tooth had been improperly prepared, and Petitioner, with the assistance of the faculty member, made a new impression for the crown. The faculty member advised Petitioner that the crown should be fabricated as soon as possible, but Petitioner made no attempt to seat the crown on this patient until five-and-one- half weeks later. At that time, Petitioner appeared at a clinic with a crown which had been fabricated on a single die, with no opposing model or adjacent tooth to wax against. When the faculty member covering the clinic inquired about the location of the models from which the crown had been fabricated, Petitioner advised him that he did not have them. Thereupon, the faculty member required Petitioner to make a new set of impressions. When questioned later by another faculty member concerning this incident, Petitioner represented that he in fact had the models, but could not locate them. Subsequently, on April 11, 1978, Petitioner reported to clinic with the crown referred to above, and was advised by the supervising faculty member that the crown had to be redone, but that it could be adjusted and worn as a "temporary". Later in that same clinic period, Petitioner approached another faculty member requesting authorization to cement the crown permanently, whereupon he was advised that the second faculty member was aware of earlier instructions given to Petitioner that the crown should be cemented only temporarily. The second faculty member was later
advised that Petitioner had falsely represented to the first faculty member that Petitioner had indicated that the crown had been approved for permanent installation by the second faculty member.
On April 18, 1978, one of the faculty members supervising Petitioner's work, noted extrusion of an upper tooth in one of Petitioner's patients, on whom petitioner had earlier placed a temporary. When the faculty member questioned Petitioner as to whether the temporary had been off for any length of time, Petitioner indicated that he could not remember. However, when the patient was questioned, the faculty member learned that the temporary had, in fact, come off, and that the patient bad advised Petitioner of that fact and been told that it did not matter. Upon further questioning, the patient also revealed that the temporary had been off for as long as one-and-one-half months, thereby apparently causing the extrusion which the faculty member had noted upon clinical examination.
As a result of these incidents, SPEC held additional meetings on May 11, 1978 and May 16, 1978, at which time it was determined that SPEC would recommend to the Dean that Petitioner be expelled from the College of Dentistry.
On May 31, 1978, Petitioner first took the Mock Board examination administered by Respondent. This examination simulates the state licensing examination which must be passed before a dentist is allowed to practice in Florida. The examination is usually administered near a student's anticipated graduation date, and serves the dual purpose of familiarizing the student with the requirements of the examination for licensure, while at the same time affording the faculty a final opportunity to evaluate a student's maintenance of competency in the various areas tested. Those areas tested on the Mock Board examination are cast gold, amalgams, periodontics, gold lab, denture lab and a final category denominated "professional evaluation". The examination is graded on a scale from zero to five, with five constituting a perfect score, and three a "passing grade". In order to pass the examination an average score of three is necessary. On the May 30, 1978 examination, Petitioner's scores in the aforementioned six categories were, in their respective order, 2.66, 1.22, 1.50, 1.50, 1.83 and 4.00 for an overall average of 2.38.
The Dean did not accept SPEC's recommendation that Petitioner be expelled, but instead advised Petitioner, by letter dated May 26, 1978, that he would not be graduated with the rest of his class in June, 1975, and that his probationary status would be continued through the summer and fall quarters of 1978. In addition, by letter dated June 7, 1978, Petitioner was advised of the conditions of his probationary program during the summer and fall quarters. Essentially, these requirements were that Petitioner would be assigned five patients to provide comprehensive patient care, requiring at least periodontal, operative, and fixed prosthodontic needs. Petitioner was advised that any member of the faculty could supervise specific clinical procedures for the assigned patients, but that final examination for each patient in the respective disciplines would have to be performed by certain specified faculty members. In addition, in the June 7, 1978, letter, Petitioner was advised:
... all of the patients will be presented to a review panel consist- ing of Drs. Low, Vertucci, and Leo upon completion of their treatment. This review will consist of a written case presentation and a clinical
examination of the patients and their
records by the review team. [Emphasis added]
At the conclusion of his treatment of the assigned family of patients, Petitioner met with the review panel. Before meeting with the panel, Petitioner advised Dr. Leo that he was unable to have the patients appear before the review team for clinical examination. When the panel met, Petitioner made no written presentation as required by the terms of his probation, and when questioned about the lack of a written presentation, did not respond. As a result of this meeting, the review team determined that, in their judgment, both Petitioner's formal presentation and his management of his family of patients during his probationary period were unsatisfactory.
On November 30 and December 1, 1978, Petitioner again was administered the Mock Board examination which he bad earlier failed on May 30, 1978. On this second occasion, Petitioner scored 1.34 on the cast gold section; 2.50 in amalgams; 1.75 in periodontics; 2.50 in gold lab; 2.00 in removable prosthodontics; and 3.00 in professional evaluation, for an overall average of 2.01.
Subsequently, SPEC again met and recommended to the Dean that Petitioner not be allowed to graduate in December, 1978. Petitioner was, subsequently, placed on probation by the Dean for the winter quarter of 1979. By letter dated January 5, 1979, the Dean informed Petitioner of the conditions of his probation for the winter quarter. In order to complete the dental curriculum Petitioner was given assignments in the areas of Periodontics, Periodontics, Oral Diagnosis Clinic, and Operative Dentistry, and was required to pass the January, 1979 Mock Board examination. Of these requirements, only those relating to Operative Dentistry and the January, 1979 Mock Board examinations are pertinent to this proceeding.
With respect to Operative Dentistry, the Dean's letter of January 5, 1979, required Petitioner to
... spend two one-half day sessions per week exclusive of cancellations in this discipline and work under the supervision of Dr. Antonson or Dr. Clark. The primary emphasis must be on cast gold restorations, amalgams and composite restorations. You
must perform these procedures at a clinically acceptable level, which is a score of "3" or above. The patients will be provided from the TEAM pool of patients. [Emphasis added].
The winter quarter of 1979 was comprised of a ten-week period. During this ten-week period, Petitioner spent twelve one-half day sessions in Operative Dentistry instead of the twenty required as a condition of his probation.
On January 25 and 26, 1979, Petitioner took the Mock Board examination for the third time. His scores on the examination were 2.0 in cast gold inlays;
1.83 in amalgams; 3.5 in periodontics; 2.0 in cast inlay lab; 3.5 in denture lab; and 2.0 in professional evaluation, for an overall average of 2.41. Although petitioner's overall average was up from the 2.01 he had scored on the November 30-December 1, 1978 Mock Board examination, he was still below the 3.0 average required to pass the examination. In addition, Petitioner's clinical work in the area of Operative Dentistry performed during the winter quarter of
1979, especially that work involving more complex amalgam procedures, was not performed at a clinically acceptable level so as to demonstrate a maintenance of competency.
As a result, Petitioner was informed that he would not be allowed to graduate at the end of the 1979 winter quarter due to his failure to perform the requirements of his probation contained in the Dean's earlier letter to him of January 5, 1979. Petitioner was, however, allowed to remain at the College of Dentistry on probationary status during the spring quarter of 1979. By letter dated March 14, 1979, petitioner was advised that he could satisfy the remaining requirements for graduation by successfully completing three cast inlays or onlays; successfully completing three Class II amalgam restorations; and successfully completing the Mock Board examination. In addition, in this same March 14, 1979 letter, Petitioner was advised that [i]n the event that you do not complete these requirements during the spring quarter of 1979, you will be expelled from the College of Dentistry." (Petitioner's Exhibit No. 36).
Petitioner participated in the Mock Board examination administered on March 1, 1979. The results of this examination were that Petitioner scored 0.66 in cast gold; 1.83 in amalgams; 1.50 in periodontics; 3.00 in gold lab; 4.00 in denture lab, and 4.00 in professional evaluation, for an overall average of
2.03. Although this was the fourth occasion on which Petitioner had taken the Mock Board examination, his score was the lowest of the ten persons who took this particular examination, and, in fact, Petitioner was the only student who failed the March, 1979 Mock Board examination.
Thereafter, Petitioner again took the Mock Board examinations on March 12, 1979. On this occasion, Petitioner scored 1.00 in cast gold; 2.33 in amalgams; 1.75 in periodontics; 2.5 in gold lab; 3.67 in denture lab, and 4.00 in professional evaluation, for an overall average of 2.20.
Petitioner successfully performed that portion of his probationary requirements for the spring quarter of 1979 with respect to completion of three Class III amalgam restorations.
Petitioner did not begin work on the gold restoration requirement of his probation until April 27, 1979. Additional appointments were scheduled for May 1, 4, and 8, 1979. Temporary restorations Performed by Petitioner on May 1 and May 8 received unsatisfactory clinical evaluations. Thereafter, Petitioner was unable to complete the gold restoration on the patient with whom he had been working because of the patient's inability to keep scheduled appointments. Although Petitioner maintains that he was unable to obtain other patients for completion of his probationary requirement dealing with cast gold inlays or onlays, the record in this proceeding clearly establishes that there was an ample number of patients with the appropriate types of lesions available through the TEAM clinic in the College of Dentistry. Accordingly, Petitioner could have, through the exercise of reasonable diligence, located these patients and performed the necessary restorative work had he chosen to do so.
Petitioner was advised that he would be allowed to take the May, 1979 Mock Board examination only upon completion of his other probationary requirements dealing with cast gold restorations and amalgam restoration. Since he did not successfully complete the cast gold restoration requirement he was not allowed to sit for the May Mock Board examination.
Petitioner was expelled from the College of Dentistry on June 8, 1979.
Petitioner contends herein that Respondent treated him unfairly in failing to furnish monthly written progress reports to him during his various probationary periods. However, it appears clear from the record that Petitioner neither complained to any faculty member concerning not receiving such reports, nor did Respondent on any occasion fail to make abundantly clear to Petitioner its evaluation of his performance. Petitioner also complains that Respondent's decision to expel him from the College of Dentistry was improperly based upon disagreements between Petitioner and various faculty members concerning Petitioner's integrity and moral standards, rather than upon Petitioner's academic performance. In this regard, although it clearly appears that various faculty members in the College of Dentistry were justifiably concerned about Petitioner's personal and professional integrity, the decisions made to place Petitioner on probation on numerous occasions, and ultimately to expel him, had ample basis in his failure to demonstrate that degree of competence necessary to justify the award of a diploma from the College of Dentistry. Further, Respondent's refusal to allow Petitioner to take the May, 1979 Mock Board examination, or to remediate only portions of the various other Mock Board examinations which Petitioner had failed in no way prejudiced Petitioner in his attempts to procure a diploma. In the first instance, the record clearly establishes that no other student in the history of the College of Dentistry was afforded an opportunity to take the Mock Board examinations five times, as was done in Petitioner's case. Petitioner's failure to complete the other probationary requirements imposed upon him in the spring quarter of 1979, together with his failure to pass the Mock Board examinations on five previous occasions, amply justified Respondent's refusal to allow him to sit for the May, 1979 Mock Board examination. Finally, Petitioner's argument that he was treated differently than other members of his entering class who were either given an opportunity to remediate portions of the Mock Board examination, instead of the entire examination as was required of Petitioner, or were graduated without passing the examination is without merit. In the first instance, there is nothing in the record to indicate that other members of Petitioner's class had demonstrated the variety and severity of problems present in Petitioner's work-- a factor which would be necessary in order to validate any conclusions based on a comparison of their treatment by Respondent. Secondly, as indicated above, Petitioner was given more than ample opportunity to remedy any deficiencies in his academic performance by virtue of his being allowed to remain in what is basically a four-year program for approximately five academic years. Despite these opportunities, petitioner was either unable or unwilling to demonstrate competence sufficient to justify award of a diploma.
Both Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
Although all agency action involving the substantial interests of a party must be supported by competent substantial evidence, Section 120.68(10), Florida Statutes, where a party such as Petitioner in this proceeding is seeking affirmative relief from an agency, the petitioning party bears the burden of proving by a preponderance of the evidence that an agency has acted arbitrarily
or capriciously in denying the relief sought. See Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (3rd DCA Fla. 1976). The court in Agrico Chemical Company
v. Department of Environmental Regulation, 365 So.2d 759, 763 (1st DCA Fla. 1978) held that:
A capricious action is one which is taken without thought or reason or irrationally. An arbitary decision is one not supported by facts or logic or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.
The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative dis-
cretion is a stringent one indeed . . .
Petitioner has failed to establish by a preponderance of the evidence that Respondent's actions in expelling him from the College of Dentistry was arbitrary or capricious. To the contrary, Respondent's expulsion of Petitioner from the College of Dentistry of the University of Florida is supported by the overwhelming weight of the evidence of record in this proceeding.
RECOMMENDED ORDER
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That a Final Order be entered by the President of the University of Florida dismissing the petition herein and denying the relief requested by Petitioner.
DONE and ENTERED this 18th day of April, 1980, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
904/488-9675
COPIES FURNISHED:
Selig I. Goldin, Esquire Post Office Box 1251 Gainesville, Florida 32602
Thomas S. Biggs, Jr., Esquire University Attorney
207 Tigert Hall Gainesville, Florida 32611
| Issue Date | Proceedings |
|---|---|
| Jun. 25, 1980 | Final Order filed. |
| Apr. 18, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 31, 1980 | Agency Final Order | |
| Apr. 18, 1980 | Recommended Order | Petitioner challenges expulsion from dentistry school as unfair. Recommend dismissal of petition. Expulsion was based on incompetence. |
