Findings Of Fact The Respondent Alam Farzad is a currently licensed medical doctor practicing medicine in Dade County, Florida. The Respondent was first licensed in Florida in 1975. In February, 1972, the Respondent resided in Miami with her husband, Kiumaris Bakshandeh, having moved to the United States from Iran in 1971 where they had both studied medicine and received medical degrees. In February, 1972, the Respondent's sister, Iran Farzad Rafael, was residing in Chicago, Illinois. Prior to February, 1972, the Respondent's sister graduated as a medical doctor in Iran and after moving to the United States, attempted to qualify for eventual licensure by taking an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG). In 1972 a passing grade was required on the examination by a foreign medical graduate in order to become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state. Thus, the examination was a type of qualifying exam, the successful passage of which entitled a foreign graduate to receive medical training in the United States and eventually sit for the state medical licensing exam which was administered to all persons who desired to become licensed physicians. The Respondent's sister took the ECFMG exam three times prior to February, 1972, and failed it each time. At the request of her husband, the Respondent flew to Chicago in February of 1972, to take the ECFMG exam for her sister. The Respondent went to the examination site with the examination entrance papers she had taken from her sister, forged her sister's name at the examination site and took the examination using her sister's name. She subsequently received word from her sister that she had received a passing grade on the examination. The night after taking the examination, the Respondent received a phone call from her husband at her sister's home. During the conversation between the Respondent's husband and sister, the husband requested that the sister perform an abortion on the Respondent in return for her help on the examination. The Respondent's sister refused the husband's request. But for the Respondent taking and passing the ECFMG exam on behalf of her sister, the sister could not have practiced medicine or entered into a residency program. In 1978, the Respondent testified that her sister had practiced medicine in 1976 specializing in physical medicine and rehabilitation. However no official records were submitted by the Petitioner that the Respondent's sister is presently licensed or has been licensed as a physician in Illinois. In 1976, the Respondent's husband used his knowledge concerning the ECFMG examination to coerce the Respondent into signing a property settlement and custody agreement in a pending divorce proceeding. In exchange for agreeing to the property and custody agreement, the Respondent's husband signed an affidavit that would allegedly ensure that no information concerning the 1972 examination would be made public. In early 1978, the Respondent instituted proceedings in the Eleventh Judicial Circuit, Dade County, to set aside the child custody and support provisions contained in the final decree of dissolution of marriage between the Respondent and her husband on the grounds of coercion and duress. Following a lengthy hearing in which numerous witnesses were heard and exhibits entered into evidence, the Circuit Court in March, 1978, granted Respondent's motion to set aside the agreement and awarded custody of the couple's minor child to the Respondent. Dr. Bakshandeh appealed the trial court's decision to the District Court of Appeal, Third District. The court affirmed the trial court noting that there was " . . . an abundance of evidence in the record. . ." to support the Respondent's contention that she had been subjected to coercion and duress by her husband into entering into the agreement and that such coercion and duress constituted "misconduct of an adverse party" which would authorize a trial court to set aside a final judgment. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). The court went on to make, however, the following observation: As a final note, we are disturbed by an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bakshandeh is a physician licensed to practice medicine in Florida; the husband Kiumaris Bakshandeh is a chief resident urological surgeon for the University of Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to a medical training program as a foreign physican in the State of Illinois. The examination was given in Chicago wherein the wife used her sister's name, took the exami- nation and passed it. The sister after additional training and examination was ad- mitted to practice medicine in Illinois. There is evidence that the husband urged the wife to take the examination for her sister and thereafter used this indiscretion to blackmail the wife into signing the pro- perty settlement agreement herein. The re- cord does not reflect whether the appropriate medical authorities have been notified of the above facts. We trust that such notifi- cation will be accomplished in the near future. Thereafter, on April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board of Medical Examiners for appropriate action. This was presumably the first actual notice the Petitioner received concerning the Respondent's actions on behalf of her sister in February, 1972. In July, 1981, a Board of Medical Examiners Probable Cause Panel found probable cause to believe violations of Chapter 458, Florida Statutes existed in this case and an Administrative Complaint was issued and filed against Respondent. Respondent was licensed by the Board of Medical Examiners as a medical physician in approximately February, 1975. The Petitioner filed the Administrative Complaint approximately 9 years after the incident in question occurred. The Petitioner failed to introduce evidence at the final hearing that while exercising due diligence it was unable to discover this incident prior to April, 1979.
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner by refusing to hire the Petitioner because of Petitioner's race.
Findings Of Fact The Respondent is the School Board of Alachua County, Florida. The Respondent advertised to hire a senior drafting technician in June of 1993. The minimum qualifications for this position were "graduation from High School or Completion of GED; three (3) years experience in drafting and architectural design under the direction of an architect or engineer; or an equivalent combination of training and experience. Graduation from a college of architecture or engineering preferred." The Petitioner, Monroe Lee, is a Black male who attended North Florida Junior College from 1970 to 1973, obtaining a 1080 hour certificate in engineering design. In 1979-80, the Petitioner completed another training program in civil engineering design. The Petitioner has been employed as a engineering draftsman by several architecture and engineering companies since 1973. His duties have included drafting, project design, and project management. Since 1991, he has been self-employed in his own architectural firm employing an architect. In August 1993, the Petitioner applied for the senior drafting technician's position advertised by the Respondent. Attached to the application was an card entitled "Data for Affirmative Action", which asked for information on the race, sex, and similar information from the applicant. This card is separated from applications by the personnel office and maintained for tracking compliance with affirmative action laws. Completion of the card is not required, but the Petitioner filled out the card attached to his application. Approximately 25 applications were received for this position. The applications were screened in the fall of 1993 by the Respondent's Supervisor of Personnel, who selected to be interviewed seven individuals, who she determined were the most qualified. Interviews were conducted on January 10 and 11, 1994, by a committee from the Respondent's Planning and Construction Department. Ultimately, no hiring decision was made because of uncertainty about the availability of funds due to a budgetary crisis. During the pendency of his application, the Petitioner made numerous inquiries at the personnel office regarding the status of his application. It appeared that his application was misplaced, and the personnel office had difficulty responding to his inquiries. Because of his visits, the Petitioner became well known to the Respondent's staff. In January or February, 1994, the Petitioner filed a complaint of discrimination in hiring against Respondent regarding this application. The complaint was investigated by the Florida Commission of Human Relations, and the Respondent answered inquiries from the Commission on March 1, 1994. It was determined that the Respondent had not discriminated against the Petitioner. In March 1994, the Respondent readvertised the position of Senior Drafting Technician. Applications were accepted between March 14-18, 1994, and the Petitioner reactivated his application for the position. The Supervisor of Personnel again screened the applications. Again, the Petitioner was not selected to be interviewed. Of those selected to be interviewed, at least one was Black, and one female applicant had a Bachelors degree in fine arts and two female applicants had Bachelors degrees in interior design. Of those not selected for employment at least two individuals had training and experience equal to the Petitioner's. The Supervisor of Personnel emphasized selection on the basis of applicants having degrees. Harry Burns, a White male, applied for the position when it was readvertised. Burns obtained an A.A. from Santa Fe Community college in 1990 and a B.A. in building construction from the University of Florida. Burns had also completed technical courses in the U.S. Air Force. He had worked for four employers since 1987 as a carpenter, managing projects, field surveying, doing traffic counts, drafting, and using a computer. Burns was hired for the position on May 9, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petitioner's complaint. DONE and ENTERED this 31st day of October, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-2044 Respondent submitted findings which were read and considered. The following states which of the findings were adopted, which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraph 6 Paragraph 6 Paragraph 7 Paragraph 7 Paragraph 8 Paragraph 8 Paragraph 9 Paragraph 2 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 9 Paragraph 12 Irrelevant COPIES FURNISHED: Monroe Lee Post Office Box 43 Alachua, FL Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, FL 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, FL 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, FL 32399-0400 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issue in this case is whether Petitioner as Dean and tenured faculty professor of the University's College of Law should be terminated.
Findings Of Fact Petitioner, Percy Luney, graduated from Harvard Law School in 1974. From 1980 to 1985 he served as the Assistant Dean of the North Carolina Central University School of Law. In 1985 he became a Fulbright Research Scholar at the University of Tokyo in Japan. In the following years, Petitioner served as either a visiting professor or adjunct professor at the University of Oregon, Waseda University, University of Tokyo, Washington University, Doshisha University, Kobe University and Duke University. In 1998, Petitioner became Dean and a professor at North Carolina Central University. From 1998 through 2000, Petitioner served as the president of the National Judicial College. On April 2, 2001, Petitioner was hired as Dean of the newly-created FAMU law school. The position of Dean is an at-will position at FAMU. In May 2001, Petitioner was also hired as a tenured professor of law at the FAMU law school, but did not perform any faculty duties. Unless there are extraordinary circumstances, such dual employment is required by American Bar Association (ABA) law school accreditation standard 205(c). A system of tenure and policy with respect to academic freedom are also required by ABA standard 405(b). The purpose of the two requirements is to enable an institution to attract the best qualified legal educators to serve as deans by providing job security to the person selected. A secondary purpose of the two requirements is to insulate a dean from the more political aspects of being dean and being terminated for making legitimate, but unpopular decisions. Importantly, the ABA accreditation standards do not set forth any requirements regarding the terms or application of an institution’s system of tenure, but defers to that institution’s tenure system and the legal precedents relative to the hiring and termination of the institution’s employees. On September 19, 2005, Petitioner was terminated from his position as Dean and tenured faculty professor of the FAMU College of Law. The termination was premised upon Petitioner's employment and allegedly fraudulent or negligent supervision of a law school employee, Shirley A. Cunningham, Jr. Prior to this case, Petitioner’s integrity and honesty have never been questioned. Once employed at FAMU, the majority of Petitioner's efforts at the new law school focused on choosing a location for the school; obtaining, building or remodeling a facility to house the school; and, hiring a faculty for the law school. Additionally, one of Petitioner’s primary objectives was to achieve ABA provisional accreditation. Such accreditation is important for the acceptance of the law school’s diploma in the community and indicates that the law school’s graduates are appropriately educated in the law. ABA accreditation is also important because graduating from an accredited law school is required to take the Florida bar exam, without which a person cannot become a licensed attorney in Florida. Petitioner's duties as Dean also included short and long-range planning, demonstrating academic leadership, developing curricula, budgeting, managing of personnel matters, representing the new College of Law inside and outside the University and promoting its growth and development into an institution worthy of state, national, and international respect. As Dean of the FAMU College of Law, Petitioner reported directly to the Provost and Vice President for Academic Affairs. On October 17, 2001, Petitioner received by facsimile from FAMU president, Dr. Frederick Humphries, a copy of a letter to Dr. Humphries dated October 11, 2001, from John D. Price, an accountant, on behalf of Shirley A. Cunningham, Jr. The letter confirmed Mr. Cunningham's commitment to donating $1,000,000.00 toward establishing an endowed professorship at the FAMU College of Law. This was the first time Petitioner became aware of Mr. Cunningham. President Humphries requested that Petitioner write a letter to Mr. Cunningham thanking him for the gift. At the time, Mr. Cunningham was the managing partner in his law practice located in Lexington, Kentucky. He spent approximately 35 percent of his time with his firm in litigation. His home address was Georgetown, Kentucky, although he also maintained a home in Parkland, Florida. The evidence did not demonstrate which home Mr. Cunningham declared as his legal residence. The last paragraph of Mr. Price's letter states: Mr. Cunningham anticipates a three year contract to the endowed chair and is looking forward to the opportunity to discuss with the applicable persons in your personnel department, the employee agreement, including the salary and other fringe benefits available to the professors at your university. Petitioner thought this statement regarding employment of Mr. Cunningham was unusual, but at the time, did not pursue the issue further. Sometime later Petitioner spoke with Mr. Cunningham by phone about the gift and potential for future employment. After that conversation, Petitioner responded to Mr. Price by letter dated October 29, 2001, suggesting that Mr. Cunningham consider changing the form of his gift from an endowed chair to dividing the gift into an endowed professorship, an endowed scholar’s fund and the construction of the law school building. Petitioner felt these types of gifts would be of more immediate benefit to a new and developing law school. The letter also reflected that Mr. Cunningham and Petitioner discussed Mr. Cunningham’s anticipated employment with the law school. Although the terms of employment were not discussed in detail, the letter reflects that Petitioner anticipated Mr. Cunningham’s eventually becoming a member of the law school faculty in its second year of operation when courses that Mr. Cunningham was interested in teaching would be offered. Until then, Mr. Cunningham would have an office available to him at the law school so that he could assist Petitioner with curriculum development and fundraising. Around December 17, 2001, Petitioner received an email from Mr. Cunningham informing him that he had signed the gift agreement the University had prepared. The gift agreement signed by both Mr. Cunningham and Respondent in December 2001 and January 2002, respectively, established the Shirley A. Cunningham Endowed Chair at the college of law. The name for the chair appears to have been developed over time by Mr. Cunningham. The gift agreement does not address any anticipated employment of Mr. Cunningham. However, the evidence was clear that such employment was part of the negotiations for the eventual gift. The gift was eventually funded on January 7, 2002, by a wire transfer of $1,000,000.00 from Mr. Cunningham to the FAMU Foundation to establish an Eminent Scholar Chair titled Shirley A. Cunningham, Jr., Distinguished Chair of Law. Throughout 2002 and into 2003, Petitioner and Mr. Cunningham had a few discussions about his joining the faculty of the law school to teach. However, Mr. Cunningham was unwilling to commit to being present at the law school on at least a weekly basis. Because Petitioner believed Mr. Cunningham's regular presence as a teaching faculty member was required to ensure that the new law school complied with the accreditation requirements of the American Bar Association, Petitioner made it clear to Mr. Cunningham that he could not join the faculty to teach without being present on a regular basis. The employment issue appeared to come to a head when Petitioner was summoned to a meeting with a Board of Trustees member William Jennings, former President's Executive Assistant Jim Davis, former FAMU President Fred Gainous, and Mr. Cunningham in June, 2003 at the Orlando Airport. Mr. Jennings arranged the meeting because he had received information that Mr. Cunningham was upset due to the fact that he could not arrange to meet with or talk to Petitioner or President Gainous. Petitioner arrived at the meeting not knowing who was going to be at the meeting or its purpose. When he arrived, a discussion ensued regarding Mr. Cunningham's employment at the law school. Petitioner explained that Mr. Cunningham did not want to teach because he could not be there on a regular basis and, if he could not teach, he could not be part of the faculty due to the potential problems with ABA accreditation. Petitioner stated that under no circumstances would he bring Mr. Cunningham on the faculty to teach if he could not commit to being present on a regular basis. The discussion then turned to whether there was some non-teaching capacity in which Mr. Cunningham could be employed with the law school. One of the proposals was that Mr. Cunningham serve in an administrative capacity as an assistant to the Dean in a classification titled “Associate In.” This position would not conflict with the ABA accreditation standards because, while it can be a teaching position, it can also be a non-teaching position. The discussion ended with agreement that Mr. Cunningham would furnish Petitioner with a list of suggested duties. President Gainous instructed Petitioner to negotiate the details of an employment relationship with Mr. Cunningham. Mr. Cunningham’s employment with the law school was presented as more of a fait accompli to Petitioner, and he did not feel he had discretion not to employ Mr. Cunningham in some capacity. Mr. Jennings denies that Mr. Cunningham's employment was discussed during this meeting or that he had any knowledge of Mr. Cunningham being employed until after the payroll audit in April 2005. However, Mr. Jennings was in and out of the meeting and did not hear all of the discussions held during the meeting. Many of the general topics Mr. Jennings did recall could easily have related to the employment of Mr. Cunningham. Mr. Jennings’ denial that Mr. Cunningham’s employment was not discussed is not given any weight in this regard. There was never any explicit instruction or expectation that Mr. Cunningham would be paid but not expected to work or earn his salary. Shortly after the meeting at the airport, Mr. Cunningham faxed Petitioner a memorandum dated June 26, 2003, suggesting job duties that he could perform for the law school. Mr. Cunningham referred to himself in the memorandum as "Distinguished Chair of Law" and stated the subject of the memo as "Chair Responsibilities." His suggested job duties were: Explore the developments/establishment of articulation agreements between selected Liberal Arts institutions and the FAMU Law School. Work toward the development and implementation of a Monthly Brown Bag Lecture Series. Assist with student recruitments. Exploration of a concentration of Agricultural Law for the JD and LLM at the FAMU Law School. Assist with the identification of internships for law students. Work toward the development of Barrister Hall (or the Shirley A. Cunningham, Jr.) Summer Academy that would provide intenstive enrichment opportunities for prospective and current law students. Petitioner was not satisfied with Mr. Cunningham's suggested duties and on July 11, 2003, sent him a memorandum proposing specific duties acceptable to him as instructed by President Gainous. Those duties were the following: Work toward the development and implementation of a monthly lecture series on the legal profession. Work toward the development and implementation of a bar examination preparation program. Assist in the identification of summer internships for our law students. Work toward the development of the Shirley Allen Cunningham, Jr. academy providing enrichment opportunities for prospective law students. Assist the dean with fundraising to support student scholarships and academic programs. Work toward the development of the center of agricultural law. Petitioner used the same title (Distinguished Chair of Law) and subject (Chair Responsibilities) used by Mr. Cunningham. The memorandum suggested the same annual salary of $100,000.00 and three-year term that had been requested by Mr. Cunningham prior to the gift being made by Mr. Cunningham. The July 10 memorandum was faxed to President Gainous and Jim Davis to keep them updated on the negotiations and give them the opportunity to respond to him if he was proposing anything they did not agree with. Petitioner never heard directly back from either regarding Mr. Cunningham’s employment. At the time, Petitioner contemplated that fundraising would be a major responsibility of Mr. Cunningham’s duties and thus would justify his salary over the course of the expected three-year period. At some point, Petitioner’s assistant received a call from Jim Davis, Executive Assistant to the President of FAMU, that indicated Mr. Cunningham should be “put on line,” or hired. The message was passed along to Petitioner. Within about a week, Petitioner instructed his assistant to prepare the paperwork necessary to employ Mr. Cunningham. Petitioner’s assistant was given the July 10 memorandum containing the list of Mr. Cunningham’s duties and, based on her experience, knew that he was being placed in a non-teaching, faculty position with administrative duties. Petitioner’s assistant actually selected the exact vacant position into which Mr. Cunningham would be placed from a file of vacant and authorized positions that she maintained. The position she selected was Associate In, Class Code 9120. The possible duties for the occupant of this position were: Responsible to a Chair or other appropriate administrator of a State University. Responsible for assisting professional staff with teaching, researching, and/or service activities or assisting in professional academic responsibilities which are directly related or supplemental to the instructional/academic mission of the department/unit. Although technically a faculty position because it is designated as a faculty line in the budget, this position is normally considered an administrative position, much like Petitioner’s tenured faculty position. Petitioner’s assistant followed FAMU’s checklist for hiring. The checklist requires that certain documents be completed for submission to the University’s personnel office. The main documents on the checklist are the form for recommendation for faculty employment and the form for assignment of responsibilities. These two documents are prepared for Petitioner’s signature. Other documents on the checklist support these two forms and include an employment application, three letters of recommendation, official transcript and resume. Three forms on the checklist are not always required and, at the time were not prepared as part of Mr. Cunningham’s employment package because Petitioner’s assistant believed that FAMU policy did not require advertising of a vacancy when it was a visiting position, such as the position here. These forms are the position vacancy form, approval to advertise form and years credited toward tenure form. Petitioner’s assistant began preparing and assembling the documents on the checklist. In a letter signed by Petitioner and dated July 14, 2003, she forwarded the forms, required to be filled out by Mr. Cunningham to him, and requested he provide three letters of recommendation and a resume. Mr. Cunningham complied and filled out the employment application around July 28, 2003. The application lists his address as Parkland, Florida, in Broward County. The home phone number reflects an area code consistent with a Broward County address. The business phone number reflects an area code for the Lexington, Kentucky area. The resume attached to the application reflects an address in Georgetown, Kentucky, and phone numbers consistent with a Kentucky address. The resume address differs from the business address and phone numbers listed in the resume. The business address and phone numbers are also located in Kentucky. Mr. Cunningham returned these documents to Petitioner’s assistant around the end of July. During the time that Petitioner’s assistant was processing the hiring paperwork for Mr. Cunningham, but before she sent the initial package to Tallahassee, she received repeated phone calls from Herbert Bailey, inquiring about the status of the hiring documents. Mr. Bailey was the FAMU employee in the Provost’s office she normally dealt with on personnel matters. Mr. Bailey expressed to her a sense of urgency in getting those documents so Mr. Cunningham could be placed on the payroll. Around August 12 or 14, 2003, once all of the checklist documents were assembled by her, Petitioner’s assistant forwarded them to Larry Robinson at the FAMU Provost’s office for further processing. The Recommendation For Faculty Employment Form and Assignment of Responsibility Form reflect that Mr. Cunningham’s duties would be 10 percent public service and 90 percent administrative with a full-time equivalent (FTE) of one. In short, regardless of the hours actually worked, Mr. Cunningham’s position was considered to be equivalent to full-time employment. The recommendation for employment letters signed by Petitioner reflect the belief that Mr. Cunningham would be a magnet for fundraising and recruitment of students. The effective date of Mr. Cunningham’s employment was set as August 8, 2003, and ran for one year. Given this date, it is clear the official employment paperwork was catching up with events that had already transpired. Such a practice was not unusual. After she had submitted the hiring package for Mr. Cunningham to Tallahassee, Petitioner’s assistant received a call from Mr. Bailey in the Provost's office in Tallahassee, requesting that she send him a vacancy notice and request to advertise Cunningham's position, even though there was no requirement to advertise a visiting appointment. She complied with this request, had Petitioner sign the forms on September 3, 2003, and forwarded those forms to Mr. Bailey. The record was not clear if the position was ever advertised or what Mr. Bailey did with those forms. A contract or offer of employment to Mr. Cunningham was signed by Larry Robinson on September 5, 2003, and forwarded to Mr. Cunningham. Mr. Cunningham signed the document on September 29, 2003 and returned it to the University. In Mr. Cunningham's employment file there are documents identifying him as a Distinguished Chair, a faculty member and an "Associate In Visiting Professor." Many of these references were generated prior to the actual employment of Mr. Cunningham and were simply short-hand references to discuss possible employment in the future, and, to some extent, were originally self-styled references by Mr. Cunningham that were perpetuated in correspondence. However, when Mr. Cunningham was formally hired, he was in fact hired on a visiting appointment throughout his employment with no fixed hours established for that appointment. The evidence did not demonstrate that there was any fraud intended by Petitioner in the preparation of any employment documents or in the employment of Mr. Cunningham. Mr. Cunningham began receiving a salary from FAMU. Law school employee checks were mailed to the law school for distribution to the relevant employees. Mr. Cunningham’s check was handled in the same manner. However, because he was not at the law school, Petitioner’s assistant forwarded his check to him in Kentucky. The evidence did not demonstrate that the method of handling Mr. Cunningham’s check was intended to hide the fact that Mr. Cunningham was not physically present at the law school. Likewise, no intent to defraud was shown by these actions. Curiously, Petitioner did not inform Omar Saleem, Associate Dean of Academic Affairs of the Law School, of Mr. Cunningham's duties or employment. The lack of information appears to have been due to the fact that Mr. Cunningham’s employment was generated from the FAMU president’s and Provost’s offices. Consequently, Mr. Saleem, as the Dean responsible for faculty appointments at the College of Law, was unaware that Mr. Cunningham had been employed. However, Petitioner never attempted to keep Mr. Cunningham's status as an employee of the law school secret and, in fact, he announced his status to the faculty in 2003, including Mr. Cunningham in the law school self-study as an Assistant to the Dean, not a member of the teaching faculty. On page 23 of the self-study that was distributed to all members of the law school faculty, Mr. Cunningham is referred to as follows: Shirley Allen Cunningham, Jr., our million dollar donor, has agreed to work with the College of Law as a Special Assistant to the Dean. He will assist the Dean with fundraising to support student scholarships and academic programs, particularly the development of the Center on Agricultural Law; identification of summer internship opportunities; a monthly lecture series; and development of a bar examination preparation program. Mr. Cunningham is not listed as a member of the teaching faculty. As indicated in an earlier memorandum, while employed at the College of Law, Mr. Cunningham was responsible for the following duties: working towards 'the development and implementation of a monthly lecture series on the legal profession’; working towards 'the development and implementation of a bar examination preparation program’; assisting 'in the identification of summer internships for the [the FAMU College of Law] law students’; working towards 'the development of the Shirley Allen Cunningham, Jr., Summer Academy, providing enrichment opportunities for prospective law students’; assisting 'the Dean with fundraising to support scholarships and academic programs’; and, working towards 'the development of the Center of Agricultural Law.' At best, these duties are vague and subject to varying degrees of interpretation as to what actions fulfill those duties. There was no evidence that a certain number of hours of activities related to those duties were required under Mr. Cunningham’s contract. Neither Petitioner nor his superiors required Mr. Cunningham to actually be present at the law school or maintain any office hours while he was employed. His performance consisted primarily of telephone conferences with Petitioner. The evidence did not demonstrate how many or how often these conferences occurred. Petitioner believes that Mr. Cunningham was performing his assigned duties to some extent because of his electronic contacts with him. He did not directly supervise him since he was not present at the law school. In fact, other than his electronic contacts with Mr. Cunningham, Petitioner did not concern himself with Mr. Cunningham’s performance, but believed he was performing some of his duties. Petitioner’s attention was mostly focused on other activities that were more important to the law school than supervising Mr. Cunningham’s activities under his contract. Petitioner also understood that Mr. Cunningham's job was to be evaluated not on a daily or weekly basis, but over a three-year period. Based on Petitioner’s understanding of the duties of Mr. Cunningham, Petitioner certified bi-weekly payroll forms reflecting 80 contract hours and an FTE of 1. Bi-weekly payroll certification forms are generated by FAMU’s main personnel office in Tallahassee and sent to the law school. These forms automatically list every full-time employee as having 80 contract hours, regardless of the requirements of that employee’s contract. These forms are internal payroll processing forms and are intended to cover many types of employees at FAMU. The forms do not necessarily reflect the contract terms of any particular employee and especially do not reflect the contract terms of employees who do not have minimum or set hours and hold FTE positions. The forms are required to be certified in order for an employee to receive his or her paycheck. The certification appears to relate to both fixed- hour employees and contract non-fixed hour employees. For non- fixed hour employees, like Mr. Cunningham, the certification is for the effort expended and based on Petitioner's belief that Mr. Cunningham was performing some work under that contract. Because professional employees such as Mr. Cunningham and other faculty and administrators of the law school are not required to actually work a precise number of hours per pay period, the certification of FAMU's bi-weekly payroll certification document that such employees have worked 80 hours in the bi-weekly pay period does not represent, and is not expected to represent, that such employees have worked precisely that number of hours. Rather, it is a certification that, to the certifier's knowledge, these professional employees are performing the duties they are assigned. Therefore, Petitioner's certification of Mr. Cunningham's work hours on these forms was not fraudulent or deceptive because he believed Mr. Cunningham was performing some work as contemplated by his employment arrangement, and he had no evidence that justified a refusal to approve Mr. Cunningham’s being paid. Indeed, in 2003 after Mr. Cunningham was employed, Petitioner’s focus was not on Mr. Cunningham’s activities. Petitioner’s highest priority was preparation of the self-study program and getting the law school ready for the first accreditation inspection by the ABA which was set for November 2003. The inspection was required in order for the law school to receive provisional accreditation, without which the entering class of law school students who were now in their third year and ready to graduate could not take the Florida bar examination. After the ABA inspection and through the Spring of 2004, Petitioner led negotiations with the ABA and made several appearances before ABA committees regarding provisional accreditation. Provisional accreditation was finally received by the law school in the summer of 2004. Additionally, after the ABA inspection in November, a significant portion of Petitioner’s time was devoted to ensuring that a clinical program required of all third-year students was in place by the fall of 2004 so that the first group of students to graduate from the FAMU law school could complete their coursework and graduate. The ABA also required that the program be in place by Fall, 2004. During 2003 and 2004, Petitioner, because he was in Orlando, was also the person that building contractors, who were constructing the new law school, would come to about problems with construction of the school. The building was scheduled to be completed and occupied by the law school by 2005. Petitioner often functioned as the liaison between the contractors and FAMU personnel in Tallahassee. Unfortunately, in July of 2004, Petitioner’s father, whom he was extremely close to and testified emotionally about at the formal hearing, became seriously ill. His father eventually died in October 2004. Dealing with his father’s illness and death both emotionally and legally, significantly interfered with Petitioner’s performance of his duties through January, 2005. In fact, Petitioner failed to perform required evaluations of employees for the 2004 academic year. Likewise, he did not materially supervise Mr. Cunningham. Petitioner admits that in the 20 months of employment, Mr. Cunningham failed to accomplish any of the goals set forth in the July memorandum referenced above. Mr. Cunningham did not generate any fundraising monies for the College of Law, did not identify any summer internships for FAMU law students, did not conduct any monthly lectures on the legal profession, never developed the Shirley Allen Cunningham, Jr., Summer Academy, never developed the Center of Agricultural Law and never developed or implemented a bar examination preparation program at the College of Law. These matters were discussed between Petitioner and Mr. Cunningham. However, no tangible results were forthcoming from those discussions and in the final analysis, did not result in any material value to FAMU. In January 2005, FAMU’s administration and Petitioner’s superiors changed. President Gainous left the University. Dr. Castell Bryant became the interim president of FAMU. She did not have any knowledge regarding the unique circumstances of Mr. Cunningham’s employment. In light of the University's existing fiscal condition, Dr. Bryant instituted a University-wide payroll audit on April 1, 2005. As part of the audit, every University employee (including President Bryant) was required to physically appear and execute an affidavit attesting to the performance of his or her duties. The audit was designed, in part, to uncover situations where an individual was being paid but not performing services for that pay. An email was sent from Dr. Bryant’s office to all University employees, including Mr. Cunningham, setting forth the requirements of the audit. Petitioner, also, contacted Mr. Cunningham and requested that he come to the College of Law campus in Orlando to comply with the audit. Mr. Cunningham did come to the College of Law and signed an affidavit attesting that he was performing his duties. Petitioner never discussed the particulars of Mr. Cunningham’s employment with Dr. Bryant prior to or after the audit. While Mr. Cunningham was at the law school for the payroll audit on April 1, 2005, he and Petitioner set up a meeting for April 21, 2005, to discuss implementation of some of his job duties that had been delayed because they could not be accomplished until the law school moved into its new building in Fall 2005. Petitioner made an entry on his personal calendar for April 21 at 2:00 pm. Petitioner did not tell his assistant about the meeting. Therefore, the meeting did not appear on Petitioner’s master calendar, maintained by his assistant. Subsequent to the audit, the University’s employment of Mr. Cunningham was raised when Dr. Bryant received an anonymous Whistleblower complaint regarding Mr. Cunningham. The complaint stated: As part of your payroll audit, you may want to take a look at the law school records involving Shirley Cunningham. According to public records for the last two years he has been on a salary of $100,000 per year as a faculty member but has never taught a course, been to a faculty meeting or occupied an office at the law school. In addition, an anonymous Whistleblower complaint was also filed with the State of Florida, Department of Financial Services, regarding Mr. Cunningham. Consequently, on April 18, 2005, Dr. Bryant requested that the Whistleblower allegations be investigated by the FAMU Inspector General, Michael Brown. After conducting some preliminary research, Mr. Brown discovered some discrepancies with Mr. Cunningham's employment documentation. Mr. Brown then telephoned Petitioner to arrange a meeting to clarify Mr. Cunningham's employment information. Petitioner could not meet with Mr. Brown because he was traveling back to Orlando from Tallahassee. Mr. Brown immediately reported his findings to Dr. Bryant. Coincidentally, on April 21, 2005, the following day, Mr. Brown traveled to the law school in Orlando for an unannounced visit to the school to further his investigation of the complaint. Mr. Brown hoped to meet with Petitioner. This was also the same day that Mr. Cunningham was to meet with Petitioner at the law school. Mr. Brown arrived at the law school at 8:55 a.m. He met with Petitioner’s assistant. She informed Mr. Brown that Petitioner was at a meeting outside the law school but she thought that he would return to the office in 30 minutes. Petitioner’s assistant only intended her reference to 30 minutes to be an estimate. She did not know that Petitioner would return in 30 minutes, but only based her estimate on Petitioner’s usual pattern. Unfortunately, Petitioner’s meeting lasted all morning and into early afternoon. It was in an area where cell phone communication was limited to outside the building at which the meeting was being held. At some point, Petitioner’s assistant was able to talk to Petitioner on his cell phone and informed him that Mr. Brown was at the law school and that he had requested to see a list of documents. Petitioner instructed his assistant to provide Mr. Brown with anything that he asked for. On multiple occasions throughout the morning and early afternoon, Mr. Brown continued to inquire about Petitioner’s arrival, and was informed each time that his arrival would be soon. Petitioner never directly contacted Mr. Brown and Mr. Brown never directly contacted Petitioner. While waiting for Petitioner, Mr. Brown was busy going through the documents he had requested be provided to him. At about 12:15 p.m. Petitioner, while on lunch break, spoke with Associate Dean Saleem by phone and informed him that Mr. Cunningham would be at the law school for a meeting in about 30 minutes. The meeting had been scheduled by Petitioner earlier in the week. Dr. Saleem informed Mr. Brown of this communication. Mr. Brown, accompanied by the Director of Security, Bruce Henson, immediately went to Mr. Cunningham's office and utilized the master security key to enter the office. Upon entering the office, Mr. Brown found Mr. Cunningham sitting behind the desk with a rolling travel bag. Mr. Cunningham stood up, grabbed his coat, greeted Mr. Brown, and exited the office. Mr. Brown observed that the office appeared to have been vacant and not used for some time because the desk and bookshelves were covered with a thick layer of dust and the computer had not been used. After his meeting, Petitioner returned to the law school and met with Mr. Brown around 1:00 or 1:30 pm. Since Mr. Cunningham had left, Petitioner was not able to meet with him. In light of his inability to meet with Petitioner and the suspicious arrival and encounter with Mr. Cunningham, Mr. Brown concluded that Petitioner, as well as others at the law school, were attempting to avoid him and impede his investigation. Mr. Brown believed that the delay he felt he experienced was a ploy to allow Mr. Cunningham time to travel to the law school. Mr. Brown communicated his conclusion of being "stalled" to the FAMU General Counsel, Elizabeth McBride and eventually to Dr. Bryant. However, other than the coincidence of Mr. Cunningham’s presence at the law school, there was no evidence that Mr. Brown was thwarted or otherwise stalled in his investigation. He was timely provided everything he asked for and was given access to the places he requested to access. He apparently was occupied with his investigation the entire time he was there. It is not credible that such an inept ploy to place Mr. Cunningham at the law school was perpetrated through some conspiracy by the staff at the law school or Petitioner. In fact, given the circumstances of his employment, Mr. Cunningham was not required to be present at the law school. After receiving advice from the Department of Financial Services Investigators, Mr. Brown confiscated the computers of Mr. Cunningham, Petitioner’s assistant and Petitioner, along with certain documents. The evidence was subsequently turned over to both state and federal prosecutors for related criminal investigations. Mr. Cunningham is represented by Stephen Dobson, Esquire, and is the subject of a criminal investigation in the United States District Court for the Northern District of Florida. As a result, Mr. Brown's investigation of Mr. Cunningham has been suspended pending the outcome of the criminal matter. Because of the criminal investigation, Mr. Cunningham, through his attorney, did not testify at his scheduled deposition, or at the hearing, in this case, based on his Fifth Amendment privilege. Prior to returning to Tallahassee, Mr. Brown interviewed Petitioner regarding Mr. Cunningham. In response to Mr. Brown's request for any information substantiating Mr. Cunningham's employment, Petitioner provided Mr. Brown with a packet that he had prepared. The packet included a memorandum and attachments. The memorandum was entitled "Job Responsibilities of Shirley Cunningham." In the poorly worded and somewhat vague memorandum, Petitioner discusses a bar preparation course that was implemented, a summer conditional program that was "getting off the ground th[a]t year," and several fundraising commitments that the law school received that year. Throughout the memorandum, Petitioner refers to the "we" as being responsible for these efforts. Mr. Brown understood Petitioner's memorandum to be referencing collaborative efforts between he and Mr. Cunningham. The use of the word “we” is just as easily understood to be referring to the law school. In reality, Mr. Cunningham was not directly responsible for any of the efforts referred to in Petitioner’s memorandum, but had been involved with limited discussions with Petitioner regarding some of the items in that memorandum. The language of the memorandum appears to be Petitioner’s attempt to, not so much cover-up Mr. Cunningham’s employment and performance as, to, through vague use of language, dodge the impending storm he saw coming at him over that employment. Petitioner, also orally informed Mr. Brown that he had no documentation showing the activities of Mr. Cunningham and that Mr. Cunningham was not expected to be present at the law school in order to perform his duties. Petitioner also told Mr. Brown that FAMU’s administration had been aware of the conditions of Mr. Cunningham’s employment. Upon returning to Tallahassee, Mr. Brown met with Dr. Bryant and General Counsel McBride and discussed his investigation in more detail. Mr. Brown also provided them with a copy of the materials Petitioner gave him referencing Mr. Cunningham's job responsibilities. Based on his investigation, Mr. Brown concluded that Mr. Cunningham had not performed any services for the University to justify his $100,000 per year salary. Further, Mr. Brown felt that Petitioner had engaged in deception by executing Mr. Cunningham's payroll certifications and mailing his paychecks to Kentucky. In addition, Mr. Brown concluded that Mr. Cunningham was not responsible for any of the efforts delineated in Petitioner’s memorandum and that Petitioner had engaged in fraud or was, at a minimum, complicit in the fraud of Mr. Cunningham. Mr. Brown relayed these conclusions to Dr. Bryant and Ms. McBride, and further informed them that there was no policy at FAMU that would allow for Mr. Cunningham's telecommuting. However, the evidence did not establish that there was a policy against such telecommuting either. The following day, April 22, 2005, and for the first time since Mr. Cunningham's employment, Petitioner refused to sign the Payroll Certification Form and indicated that Dr. Bryant would have to approve Mr. Cunningham's work. Petitioner refused to certify the form because he knew the matter was being investigated by the University and the authenticity of Mr. Cunningham’s performance was in question. He also knew the current administration no longer sanctioned the conditions of Mr. Cunningham’s employment. The Certification Form was forwarded to Dr. Bryant. Dr. Bryant advised Petitioner that, as Dean of Law School, it was his responsibility, not hers, to ensure that the payroll certifications were accurate and sent the form back to Petitioner. Subsequently, Dr. Bryant contacted Petitioner and requested information about Mr. Cunningham's performance at the law school. Apart from the memorandum she received from Mr. Brown, Petitioner never provided her any additional documentation related to Mr. Cunningham. Because Mr. Cunningham had been paid from State funds but had not performed any verifiable work, Dr. Bryant considered Mr. Cunningham's employment fraudulent and that Petitioner had participated in that fraud or been grossly incompetent in his supervision of Mr. Cunningham and certification of the payroll records based on that supervision. Importantly, the evidence at the hearing did not demonstrate that Mr. Cunningham’s contract was unlawful, but that his performance was not verified by Petitioner. The lack of evidence in that regard was due to the lack of testimony from Mr. Cunningham, who did not testify at the hearing. On June 27, 2005, Petitioner was placed on administrative leave with pay and provided an opportunity to address the allegations of misconduct and/or incompetence against him. Dr. Bryant placed Petitioner on administrative leave because she believed it to be in the best interests of the University, law school and students. She did not want the new law school students to believe that the University in any way condoned not abiding by the law. Petitioner denied any fraud on his part but did not offer any evidence that would refute the allegations that he knowingly permitted Mr. Cunningham to be employed at the University while not performing any work. Accordingly, Petitioner was terminated by Dr. Bryant by letter dated September 19, 2005. Dr. Bryant reached this decision based upon the documentation that had been provided to her, the interviews of Petitioner and her consultations with General Counsel McBride, Inspector General Brown, the FAMU Human Resource Director and Provost Larry Robinson. Dr. Bryant did not consider terminating Petitioner as Dean, but allowing him to continue as a professor, because she did not believe it was in the best interest of the law school or its students. Prior to terminating Petitioner, however, Dr. Bryant met with Petitioner in Orlando and provided him an opportunity to resign. Petitioner declined to resign because he did not believe that he had committed any fraudulent acts, but admitted he had been negligent in supervising Mr. Cunningham. Petitioner’s termination letter, dated September 19, 2005, provides the reasons for his termination and states, in part: This action is being taken due to your engaging in conduct which adversely affected the functioning of the University and failing to adhere to established University obligations appropriate to your appointment. Specifically, you knew or should have known: The duties and responsibilities designated for Shirley Cunningham, Jr. (Cunningham), in your memorandum dated July 10, 2003, failed to have any measurable standards. There is a lack of supporting documentation demonstrating Cunningham’s involvement in or “working towards” any duties and responsibilities outlined in the letter at the College of Law. That Cunningham failed to present and failed to perform job duties and responsibilities as a full-time employee at the College of Law. Your certification of payroll documents for Cunningham, to receive pay warrants, or payroll checks, from the University during the time period August, 2003 through April, 2005 was improper. Pay warrants or payroll checks were mailed from your office at the College of Law to Cunningham in the State of Kentucky, even though Cunningham failed to present or perform any documented duties and responsibilities to justify the receipt of a warrant or check for any pay period. The failure of your staff to provide the University’s Inspector General with immediate access to the office space designated for the documents relative to the employment of Cunningham delayed and hampered the Inspector General’s investigation of the complaint regarding Cunningham. In this case the evidence does not demonstrate that Petitioner had an intent to defraud the University. After all, Petitioner’s then current superiors were aware of the terms of Mr. Cunningham’s employment, that he was in a visiting status and that he would continue his law practice in Kentucky. The evidence does demonstrate that Petitioner was grossly negligent in his poor supervision of Mr. Cunningham and his willingness to accept the discussions he had with Mr. Cunningham as evidence that Mr. Cunningham was fulfilling his contract with the University. By any terms, the contract with Mr. Cunningham was a bad contract because of its lack of specificity especially since the contract was developed by an attorney and Dean who was responsible for protecting the University. It ultimately was not in the best interest of the University and should have been questioned by Petitioner earlier than it was. However, the conduct for which Petitioner was terminated arose out of his duties as Dean, and not as a professor, since Petitioner never performed any professorial duties at FAMU. On the other hand, Petitioner’s year and a-half-long negligence calls into question his competence and judgment as a professor who might have to supervise and instruct students in the law, as well as protect the University’s interests in any professorial capacity. Admittedly, Petitioner had more important matters than Mr. Cunningham, related to the law school, that occupied his time. Moreover, the death of his father certainly affected the performance of his supervisory functions in 2004 and January 2005. By February or March 2005, Mr. Cunningham’s employment should have raised red flags with any administrator, like Petitioner, responsible for protecting the interests of the law school and the University. Given these facts, Petitioner’s termination should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 12th day of July, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2006. COPIES FURNISHED: Thomas Brooks, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Robert L. Norton, Esquire Allen, Norton & Blue, P.A. 121 Majorca, Suite 300 Coral Gables, Florida 33134 Robert E. Larkin, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Castell V. Bryant, Interim President Florida A & M University 400 Lee Hall Tallahassee, Florida 32307-3100
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a psychologist. The resolution of that issue turns on whether Petitioner has a “doctoral-level psychological education” or a “doctoral degree in psychology” within the meaning of Section 490.003(7), Florida Statutes.
Findings Of Fact Petitioner applied to sit for the psychologist licensure examination by application dated November 18, 1994. Petitioner earned a bachelor of science in electrical engineering degree from the University of California at Berkley, in 1970. Petitioner earned a masters degree in business administration from the University of California at Berkley in 1972. Petitioner earned a masters degree in engineering from the University of California at Berkley in 1975. Petitioner enrolled in the Union Institute on July 1, 1977, where he was a student until he withdrew on September 30, 1981. He was readmitted to the Union Institute on March 14, 1986. He was awarded the degree of Doctor of Philosophy by the Union Institute on March 31, 1987. Petitioner’s area of specialization was “Electrical Engineering and Applied Behavioral Science”. The title of his dissertation was “A Procedural Model in a Knowledge System of a Generalized Intelligent Decision Support System Which Employs Psychological and Biological Characteristics”. Petitioner’s doctorate degree from Union Institute was with dual majors, electrical engineering and psychology. Respondent stipulated that Petitioner’s degree from the Union Institute included a Ph.D. with a major in psychology. Based on the testimony of Respondent’s expert, it is found that Petitioner was awarded a Ph.D. in psychology from Union Institute within the meaning of Section 490.003(7), Florida Statutes (1995). 1/ Petitioner’s course work at the Union Institute included a total of 135 credits for the psychological portion of his Union degree. 2/ The Union Institute was accredited by a regional accrediting agency, the North Central Association, for the first time in the year 1985. Between the time Petitioner matriculated in the Union Institute in 1977 and the time he withdrew as a student in 1981, the Union Institute was not an accredited institution. At all times after he was readmitted in 1986, the Union Institute was an accredited institution. The Union Institute did not have a formal program in psychology until 1992. The American Psychological Association (APA) is an accrediting agency recognized by the U.S. Department of Education. The Union Institute’s doctorate program in psychology has never been accredited by the APA or by any other accrediting agency recognized by the U.S. Department of Education. The doctoral program pursued by Petitioner was developed for him as a result of his negotiations with a faculty committee. 3/ His doctoral program did not include an appropriate psychological internship. The parties agreed that an appropriate psychological internship is an essential element of an APA comparable doctoral program. There was a conflict in the testimony between Dr. David Singer, an expert for the Petitioner, and Dr. Barry Schneider, an expert for the Respondent as to whether Petitioner’s doctoral program was comparable to an APA approved program. Dr. Singer testified that except for the absence of a psychological internship, Petitioner’s doctoral program at the Union Institute was comparable to an APA approved program. Dr. Schneider’s opinion was that Petitioner’s doctoral program was not comparable to an APA approved program. Both of these experts have impressive credentials and both testified at length as to the underlying reasons for their opinions. Dr. Singer has far greater experience than Dr. Schneider working with APA accreditation standards. Because of that greater experience and because Dr. Schneider misunderstood part of the work for which Petitioner was awarded credit, 4/ Dr. Singer’s opinion that except for an internship the Petitioner’s doctoral program was comparable to an APA approved program is accepted.1 Following his graduation from Union Institute, Petitioner completed two psychological internships to augment his education. The first, under the supervision of Dr. James J. Thompson, Ph. D., a California psychologist, began November 11, 1988, and ended August 1, 1990. The second, under the supervision of Dr. Cheryl A. Woodson, Ph. D., a Florida psychologist, began October 1, 1993, and ended December 31, 1994. The internship he took from Dr. Woodson was comparable to an internship that would have been required from a doctoral program approved by the APA. When he took his internship, the Board had rules that explicitly permitted a candidate to augment his or her education with a post-doctoral internship. See, Chapter 59AA-14, Florida Administrative Code. That chapter was repealed January 7, 1996. The Board is still authorized to accept evidence that a candidate has augmented his or her education. See, Section 490.005(1)(b)3, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order finding Petitioner qualified to sit for the subject licensure examination. DONE AND ENTERED this 10th day of February, 1997, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1997.
The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2007.
Findings Of Fact George Jenkins filed an application for licensure with the Department of State for a Class "A" private investigative agency license. Jenkins is qualified in every respect with the exception of his experience, which is at issue and concerning which further findings are made below. Jenkins served in the Air Police of the United States Air Force from 1953 until 1957. He performed those duties generally performed by military policemen from November 17, 1953, until February of 1957. These duties are generally patrol and guard functions as opposed to criminal investigation. Jenkins worked for Montgomery Ward in Lakeland, Florida, for 1.5 weeks; Wooco in Lakeland, Florida, for 11 weeks; and Imperial Bank in Lakeland, Florida, for 12 weeks. His duties were those of a security guard. Jenkins worked in Florida for Wheeler and Associates from June 30, 1975, until June 30, 1976, repossessing cars. He then worked for Frontier International Investigations in Florida from July 1, 1977, until December 15, 1977, repossessing automobiles. Jenkins also repossessed cars for American Bank of Lakeland from 1973 to January of 1980; Barnett Bank of Lakeland from 1975 until 1979; Mid-Florida Schools Federal Credit Union from 1975 until February of 1980; First District DOT Employees Credit Union from February, 1975, until February, 1980; and Publix Employees Credit Federal Credit Union from July, 1974, until January of 1980. All these businesses are located in Florida. Jenkins seeks to obtain the Class "A" license to continue his business repossessing cars. The record reflects that he has been self-employed and employed by other Class "A" licensees to perform the business since 1973. While Jenkins is a full-time employee of the United State Post Office, there is no question that this has been a major part-time occupation. Jenkins' service with the United State Air Force together with his approximately six months' experience as a security guard and his part-time self- employment and employment with others repossessing cars would meet the total experience requirement of three years, and clearly well over one year of that experience has been in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State grant the application of George Jenkins for licensure as a class "A" private investigative agency. DONE and ORDERED this 13th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Jonnie M. Hutchison, Esquire 145 East Haines Boulevard Post Office Box AL Lake Alfred, Florida 33850
Findings Of Fact On April 23, 1980, Petitioner applied for a teaching certificate in the areas of biology, chemistry, and general science. Petitioner had been certified by the State of Florida from August 20, 1974, through 1979 in these subjects. Petitioner allowed his prior certificate to lapse in 1979 as he was not sure he wanted to continue to be a teacher. At the time he allowed his certificate to lapse, he was involved in a drug problem, which drug problem resulted in the three arrests at issue herein. Petitioner was arrested in 1977, in 1978, and in 1979 for possession of controlled substances. Each of the arrests resulted in the withholding of adjudication. None of the arrests involved the sale of drugs, and Petitioner has never sold drugs. Petitioner has not used drugs since January of 1979, the date of his last arrest, and the drug used that date was a drug prescribed for him by a doctor. Prior to this application, Petitioner had reapplied for his teaching certificate. That application was denied since Petitioner was on probation from his arrests. Petitioner has completed all of his probationary periods. During the last year and a half, Petitioner has been teaching at the Miami Shores Preparatory School. He was hired to start a science department and has been teaching seventh and eighth grade life science, ninth and tenth grade biology, eleventh and twelfth grade honors biology, and eleventh and twelfth grade honors chemistry. He is also the swimming coach and serves as a counselor for seventh and eighth graders. Since he has been teaching at Miami Shores Preparatory School, a student has written an essay about him in describing the characteristics of an ideal teacher for a literary contest. The students at Miami Shores have dedicated the school yearbook to him. He has started a program at that school for students with drug problems by enlisting the aid of persons in the drug program which he himself successfully completed. Petitioner has had no difficulty in his present teaching position. However, in order for him to continue teaching at Miami Shores Preparatory School, a Florida teaching certificate is required. He is supported in his application for a teaching certificate by the principal of that school as well as by some of the other teachers, students, and parents of students at that school. Petitioner meets all requirements for issuance of a Florida teaching certificate, and the only basis for Respondent's denial of his application involves his three arrests.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered approving Petitioner's application for a Florida Teacher's Certificate, providing that Petitioner be issued a Teacher's Certificate on a probationary basis for a period of five years, and further providing that such certificate be automatically revoked if Petitioner be arrested for possession of any controlled substance during his five-year probationary period. RECOMMENDED this 24th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of September, 1981. COPIES FURNISHED: Ronald C. LaFace, Esquire Roberts, Miller, Baggett, LaFace, Richard & Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. The Florida Board Examination is also known as the FLEX examination. In an effort to meet that prerequisite, the Petitioner has already taken the FLEX examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. The issue of whether Section 458.311(2), Florida Statutes, had the effect of limiting the number of times the Petitioner could take the FLEX exam was first considered by the Board of Medicine in 1992. In response to an earlier application by the Petitioner, by letter dated March 11, 1992, the Petitioner was advised by Board staff that Section 458.311(2), Florida Statutes, appeared to apply to her application and that the matter would be considered by the Board at the next meeting of the Board. Thereafter, by letter dated May 7, 1992, Board staff advised the Petitioner that her application would be considered by the Board's Credentials Committee, and that the Petitioner was required to attend the meeting of that committee on May 27, 1992. At the May 27, 1992, meeting, the Board's Credentials Committee, following perfunctory advice of counsel, and without discussion by the committee members, voted to recommend that the Petitioner be allowed to take the FLEX exam a sixth time after 1986, even though she had previously failed the exam five times since 1986. The committee recommendation was adopted by a majority of the Board of Medicine, and the Petitioner was allowed to take the FLEX examination for a sixth time since 1986. The Petitioner failed the FLEX examination for a sixth time since 1986. The Petitioner has reapplied for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), and seeks to take the FLEX exam for a seventh time since 1986. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's pending licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examinatiion be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M-22.020(1), Florida Administrative Code, by adding to it new subsections specifically addressing the issue of how many times applicants under subsections (8) and (10) of Section 458.311, Florida Statutes, may take the licensure examination. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendments described above. For reasons unknown to the Board's Executive Director, the Board's legal counsel did not file the proposed rule amendment for adoption until March of 1993. The March 12, 1993, issue of the Florida Administrative Weekly contains notice of the Board's intention to adopt the rule amendments described above. The full text of the proposed rule is as follows: 21M-22020 Western Hemisphere Exile Requirements. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Section 6, Chapter 86-245, Laws of Florida, (codified at Subsection 458.311(8)(9)(a), Florida Statutes (1992 Supp))(1988 Supp), the following shall apply: (a) - (c) No change (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Chapter 89-266, Chapter 89-541 and Chapter 92- 53, Laws of Florida, (codified at Subsection 458.311(10), Florida Statutes (1992 Supp.) (1991)), the following shall apply: (a) - (g) No change. (h) The phrase "successful completion of the licensure examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. The proposed rule amendments quoted immediately above are presently being challenged in Case No. 93-2166RP. It is the consistent practice of the Board of Medicine to apply the provisions of Section 458.311(1)(a)-(d), (4), and (5), Florida Statutes, to all applicants seeking licensure under Section 458.311(8), which last-mentioned section is also known as the "Cuban Exile Program."
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case concluding that the Petitioner is ineligible to seek licensure pursuant to Section 458.311, Florida Statutes (1992 Supp.), by reason of having already failed the FLEX examination more than five times since 1986. DONE AND ENTERED this 16th day of September, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1801 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in substance with some subordinate and unnecessary details omitted. Paragraph 8: Rejected as not fully supported by the evidence of record and as, in any event, subordinate and unnecessary details in view of later Board action. Paragraphs 9, 10, 11, 12, and 13: Accepted in substance with some subordinate and unnecessary details omitted. Paragraph 14: Rejected as irrelevant. Findings submitted by Respondent: Paragraph 1: Covered in Preliminary Statement Paragraph 2: Accepted in substance. Paragraph 3: Covered in Preliminary Statement. Paragraph 4: Covered in Conclusions of Law. COPIES FURNISHED: Robert S. Turk, Esquire Valdes-Fauli, Cobb, Bischoff & Kriss, P.A. One Biscayne Tower, Suite 3400 Two South Biscayne Boulevard Miami, Florida 33131-1897 Claire D. Dryfuss, Esquire Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The parties stipulated as follows: Raul Ivan Vila, Petitioner, applied to Respondent for licensure by endorsement after having graduated from a foreign medical school, passed the Federation Licensing Examination (FLEX) and having been certified by the Educational Commission for Foreign Medical Graduates (ECFMG). He was denied licensure on the grounds that the supervised clinical training he received in the United States was not obtained in wither a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association, or in a residency program approved by the Accreditation Council for Graduate Medical Education as required by Rule 21M-22.18, Florida Administrative Code, which took effect on November 28, 1984. Petitioner had completed his supervised clinical training in the United States and had received his medical degree prior to the effective date of this rule. Petitioner's application would also be denied under amended Rule 21M-22.18, Florida Administrative Code, which took effect on March 13, 1985, because the supervised clinical training he received in the United States was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education, or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is obtained. The following findings are based upon the evidence received and matters officially recognized: The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided: Foreign Medical Graduates: Qualification Re- quirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada, is admitted to take the writ- ten licensure examination or be licensed by endorsements [sic], he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the foreign medi- cal school was obtained either in a hospital affiliated with a medical school approved by the Council on Medical Education of the Ameri- can Medical Association or in a residency pro- gram approved by the Accreditation Council for Graduate Medical Education. The Board subsequently amended Rule 21M-22.18, and the amendment took effect March 13, 1985, to provide: Foreign Medical Graduates: Qualification Requirements. Before any gra- duate of a medical school not accredited by the Liaison Committee on Medical Education, ex- cept a graduate of an accredited school in Canada, is admitted to take the written licen- sure examination or be licensed by endorsement, he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training re- ceived in the United States as part of the cur- riculum of the medical school was obtained either in a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is being obtained. This rule, as well as its amendment, were adopted to implement Sections 458.311 and 458.313(4), Florida Statutes. The Liaison Committee on Medical Education, which reviews and accredits medical schools in the United States, has adopted standards for the accreditation of medical education programs which were ratified by the Council on Medical Education of the American Medical Association on March 1, 1985, and the Executive Council of the Association of American Medical Colleges on April 4, 1985, and which state in part: The traditional required clinical subjects, which should be offered in the form of requir- ed experiences in patient care (customarily called clerkships), are internal medicine, ob- stetrics and gynecology, pediatrics, psychia- try and surgery. Additionally, many schools require a clerkship in family medicine. . . . Each required clinical clerkship must allow the student to undertake thorough study of a series of selected patients having the major and common types of disease problems represent- ed in the primary and related disciplines of the clerkship. . . . The required clerkships should be conducted in a teaching hospital or ambulatory care fa- cility where residents in accredited programs of graduate medical education, under faculty guidance, may participate in teaching the stu- dents. In an ambulatory care setting, if faculty supervision is present, resident par- ticipation may not be required. If required clerkships in a single discipline are conduct- ed in several hospitals, every effort must be made to ensure that the students receive equivalent educational experiences. No schools outside the United States are accredited by the Liaison Committee. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital, chairman of the clerkship committee at Shands, and an expert in medical education, clerkships are an essential part of a medical education because they are the first time the student is introduced to the real practice of medicine and contact with patients in a supervised setting. Clerkships occur in the third and fourth years of a medical education, after the student has had courses in the basic sciences, pathology, pharmacology and an introduction to clinical medicine. During a clerkship, the student participates as part of a team and does patient histories, physicals, participates in discussions about patient care, observes operations and attends lectures. Clerkships are usually taken in fields such as obstetrics and gynecology, pediatrics, internal medicine, surgery, community health, family medicine and psychiatry. The Liaison Committee reviews the clinical clerkship program as part of the accreditation process. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measureing a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities. Robert B. Katims, M.D., testified as a member of the Board and Chairman of the Foreign Medical Graduates Committee of the Board. As Committee Chairman he had noted problems with the clinical experience being received by graduates of certain foreign medical school that are not accredited by the Liaison Committee. All medical schools in the United States are accredited. Dr. Katims observed that problems with the clinical experience offered at these foreign medical schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students must arrange their own clinical experience in the United States. There have been repeated instances of little of or no supervision in these clinical experiences, which frequently consist of a one-on-one affiliation with a practicing physician with very little structured training. Under these circumstances, the foreign medical student does not receive the kind of supervised clinical training which is a vital part of a medical education.
