The Issue The issue is whether Petitioner Walton County School Board (Petitioner) had good cause to reject Superintendent Jack Bludworth's (Superintendent) nomination of Respondent Linda Rushing (Respondent) for an annual administrative contract to fill the position of Exceptional Student Education (ESE) Coordinator.
Findings Of Fact Respondent holds Florida teaching certificate number 595971. She is certified in elementary education, emotionally handicapped education, and school guidance. She received a Bachelor of Science degree in emotionally handicapped education from the University of West Florida and a Master of Education degree in mental health counseling from Troy State University. She is currently seeking a Doctorate of Education in Alternative Education/At Risk Education from the University of West Florida. Respondent has six years of classroom experience as a teacher of emotionally handicapped students. She served as a guidance counselor for three years, two of which included working with ESE students. Respondent served as Petitioner's ESE Coordinator from March 16, 1998, to June 30, 1999. Prior to that time, she had no experience working as an administrator. As ESE Coordinator, Respondent was responsible for the administration of Walton County School District's (the district) special education department. Her duties included the direct supervision of employees assigned to that department. She was required to work with teachers and special education professionals throughout the district to identify ESE students who were eligible for services pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Additionally, she was responsible for ensuring that the district provided each ESE student with an appropriate education under an individual education plan (IEP) as required by IDEA and Section 504. The failure to follow state and federal regulations to properly identify and educate ESE students could result in significant financial repercussions for the district. Therefore, Respondent was required to interact with the Superintendent and Petitioner to make sure that the district complied with these regulations. The Superintendent took office in November 1996. Jerry Jones, Donnie Richardson, and Darrell Barnhill were elected to the five-member school board in November 1998. Susan Adkinson and Mark Davis retained their positions as school board members, having been elected in a previous election. After the November 1998 election, Petitioner elected Mr. Jones to serve as its chairman. Ms. Bebe Whitehead was in charge of the ESE department for several years until she retired early in 1998. Upon her retirement, Ms. Cindy Jeselnik, formerly the ESE staffing specialist for secondary students, became the interim ESE director. Ms. Jeselnik is certified by the Department of Education (DOE) in the areas of health education, school guidance, and administration and supervision. She has a Master of Education degree in administration and supervision. Ms. Jeselnik has worked for the district for approximately 13 years. After Ms. Whitehead's retirement, Ms. Nancy Holder continued to work in the ESE department, as the district's only school psychologist. Ms. Holder had served in that position for approximately 16 years. Her prior work experience includes 11 years as a teacher of emotionally handicapped students in Holmes County. She has a bachelor's degree in intellectual disabilities, a master's degree in school psychology, a specialist degree in educational leadership, and a specialist degree in curriculum instruction. She needs to take three classes and write a dissertation in order to receive a doctorate degree. As a certified school psychologist, Ms. Holder was employed under an administrative salary schedule, earning approximately $50,000 annually. When Ms. Whitehead retired, Ms. Cecilia Bishop Jones continued to serve as the district's ESE Pre-Kindergarten Coordinator. Her duties included working as the Child Find specialist and providing direct instruction to pre-kindergarten ESE students as a speech teacher. She played an integral role in the referral process to determine the eligibility of pre- kindergarten students for participation in the ESE program. At times she signed IEPs as the speech pathologist. She had served in that capacity since 1994, when James King, the district's superintendent from June 27, 1994, through November 18, 1996, nominated her to fill an approved position as a speech/language pathologist. 1/ Her prior work experience included working for the district as an elementary school teacher. Ms. Jones has a Bachelor of Arts degree in elementary and early childhood education. She is certified to teach in those areas. After her transfer to the ESE department, she began taking classes towards an undergraduate degree in speech pathology. In order to be certified as a speech pathologist, one needs to have a master's level degree in that area. A target selection committee interviewed applicants to fill the position vacated by Ms. Whitehead. This committee was composed of education professionals from outside the area. The committee recommended Ms. Jeselnik, Ms. Holder, and Respondent as the number one, number two, and number three candidates, respectively. Presented with these three names, the Superintendent chose to nominate Respondent for ESE Coordinator. Petitioner approved the Superintendent's nomination on March 16, 1998. Ms. Jeselnik was visibly upset when Respondent was hired as ESE Coordinator. For the remainder of the 1997/1998 school year, Ms. Jeselnik avoided contact with Respondent whenever possible. On May 27, 1998, Respondent performed Ms. Jeselnik's "annual evaluation." Ms. Jeselnik complained to the Superintendent that it was the lowest evaluation she had ever received. In August 1998, the Superintendent granted Ms. Jeselnik's request for a lateral transfer to the position of Student Services Coordinator. In her new position as the head of the student services department, Ms. Jeselnik was no longer under Respondent's supervision. When Respondent became ESE Coordinator, she became concerned that Ms. Jones was functioning as an uncertified speech pathologist in violation of state and federal regulations. Due to that concern, Respondent informed Ms. Jones that she would no longer serve as a speech teacher/therapist. Respondent immediately restricted Ms. Jones' duties to assisting with referrals to the ESE pre-kindergarten program. For the duration of the 1997/1998 school year, Ms. Jones worked in the ESE department as a Child Find specialist. Respondent performed an "annual evaluation" of Ms. Jones in June 1998. Shortly thereafter, Ms. Jones requested a lateral transfer to the student services department. The Superintendent granted this request in August 1998. Ms. Jones' new title became Resource Teacher for Early Childhood, Child Find, and Home Education. Primarily she continued to serve as a Child Find specialist. There was no established position for a Child Find specialist in the ESE department or the student services department. Therefore, Ms. Jones' transfer created some confusion concerning the person responsible for performing her evaluations. On May 27, 1998, Respondent sent the Superintendent a memorandum requesting that he place a revised school psychologist position description, together with terms of employment, on Petitioner's agenda for the upcoming meeting. The position description required the school psychologist to have a current Rank II teaching certificate and to be a specialist in the field. The position description required the school psychologist to be responsible for all psychological testing in grades pre-kindergarten through 12, including all testing of ESE students. The proposed terms of employment that Respondent submitted with the revised position description provided for a 12-month annual contract. The proposed salary was based on a range from $33,000 to $36,000, depending on the school psychologist's degree level and expertise in the field. A school psychologist with a master's degree would earn a base salary of $33,000. The salary range was not on a published salary schedule for instructional, administrative, or non- instructional personnel. Petitioner considered the Superintendent's recommendation and approved the revised position description and terms of employment on June 9, 1998. Petitioner also authorized the Superintendent to advertise for a school psychologist to fill the position. The person hired to fill the position would have provided the district with a second school psychologist because Ms. Holder continued to hold her position in that capacity. On or about July 15, 1998, Ann Farrior applied for the position of school psychologist as advertised pursuant to the revised position description. Ms. Farrior received her master's degree in school psychology in 1990. However, she did not complete a school psychology internship because one was not required for certification in Florida at that time. Ms. Farrior worked exclusively in private clinical practice until Petitioner hired her on an as-needed basis in 1996/1997. Under the 1996/1997 contract with Petitioner, Ms. Farrior was a member of the child study team and acted as a referral agent for ESE students. On July 20, 1998, Respondent and Ms. Holder interviewed Ms. Farrior for the school psychologist position. Ms. Farrior revealed that she was not certified in school psychology because she lacked 6 required courses and an internship. She also revealed that it would take approximately two years for her to achieve certification. Ms. Farrior stated that she held a two-year temporary certificate to teach in the subject area of psychology from July 1, 1996, through June 30, 1998. The interview team understood that Ms. Farrior was eligible to renew this two-year temporary certificate upon her employment with the district. The interview team noted that they needed to check with DOE regarding Ms. Farrior's credentials. After the interview, Respondent and Ms. Holder agreed that they would recommend Ms. Farrior for the school psychologist position. They chose Ms. Farrior over two other applicants. One of those candidates was certified in school psychology but had no work experience in the field. Respondent offered and Ms. Farrior accepted the job with a $33,000 annual salary. On August 4, 1998, the Superintendent nominated Ms. Farrior for the new school psychologist position. The Superintendent believed Ms. Farrior was certified or eligible for certification when he made this nomination. Petitioner approved her employment effective retroactively to July 28, 1998. On July 1, 1998, Zane Sunday became the district's personnel director. 2/ Soon after Ms. Farrior's employment, she requested that Mr. Sunday assist her in renewing her temporary certificate in psychology. 3/ Ms. Farrior wrote several memos to the district's personnel department regarding the request for issuance of her new temporary certificate from DOE. However, DOE never received such a request. Shortly after assuming the position of ESE Coordinator, Respondent entered into negotiations with Vantage Healthcare Corporation, d/b/a Destin Health Care and Rehabilitation Center (DHC) for the provision of contract services, including speech/language pathology services and supervision, physical therapist services, and occupational therapist services. The three written contracts state that the district shall pay $55.00 dollars per hour for all services provided. The services for a speech/language pathologist included "supervision of personnel, for speech therapy and related services which include the writing of IEP's [sic], attending staffings, and IEP review at assigned school." The services for a physical therapist and an occupational therapist included "administration and coordination of services, on-site services rendered, and education of personnel and families." All three contracts state that the district will reimburse DHC for mileage at .29 per mile. During the negotiation of the contracts, Respondent reached a separate oral agreement with DHC that, in addition to the services specified in the contracts, the $55.00 per hour rate would include all time spent by the therapists in traveling from school to school. The written contracts did not express this separate oral agreement. Respondent presented the written contracts to the Superintendent and Petitioner's attorney for their approval. She did not explain to them that the $55.00 per hour charge included the travel time of the DHC service providers. On the Superintendent's recommendation, Petitioner approved the three contracts on August 11, 1998. The contracts were effective August 1, 1998, through June 30, 1999. Beginning in August 1998, DHC regularly submitted invoices to the district for payment that, without Petitioner's knowledge, included charges at the rate of $55.00 per hour for the driving time of DHC service providers. Respondent had the responsibility to review the invoices to ensure payment according to the contracts prior to submitting them to the finance department. On or about August 10, 1998, Respondent gave Mr. Sunday a personnel action form for Ms. Farrior. The form related to a "[n]ew" position needed due Board action on June 9, 1998. Ms. Farrior's position description and terms of employment were attached to the form. The terms of employment stated that the employment contract was for 12 months with a base salary of $33,000 for a master's level degree. Mr. Sunday informed Respondent that the position description did not allow for a negotiated salary and that Petitioner could not have approved it as such. Mr. Sunday also said that Ms. Farrior was not entitled to an incremental increase in pay based on her experience because she was not a full-time employee when she worked for the district in 1996/1997. Ms. Farrior eventually agreed to work for $23,000 under a published instructional salary schedule. In September 1998, Ms. Holder became the ESE department's Program Specialist/Staffing Specialist. The change in her job description was due to Ms. Jeselnik's transfer to the student services department. In her new capacity, Ms. Holder no longer functioned as a school psychologist. Thereafter, Ms. Farrior was responsible for all testing and diagnostic services in the district. Ms. Frieda White-Crenshaw was a DHC speech pathologist. Pursuant to one of the contracts between Petitioner and DHC, Ms. White-Crenshaw's duties included supervising the district's speech therapists. In the fall of 1998, Ms. Jones was required to work with Ms. White-Crenshaw to determine whether pre-kindergarten students required additional referral services. Ms. Jones met with Ms. White-Crenshaw and parents in Child Find screenings and ESE eligibility meetings. Respondent was present during some of these meetings; she did not approve of Ms. Jones' attitude toward Ms. White-Crenshaw in these meetings. On October 6, 1998, Mr. Sunday prepared a list of employees who were teaching or working in a field for which they were not certified. He compiled this list based on information furnished by school principals, supervisors, and department heads. Respondent did not report that Ms. Farrior was working as an out-of-field school psychologist. Mr. Sunday personally added Ms. Farrior's name to the list. Neither he nor Respondent contacted DOE to check Ms. Farrior's certification status. One week later, Petitioner approved the list based on the Superintendent's recommendation. Petitioner was unaware that Ms. Farrior was functioning as an uncertified, out-of-field school psychologist. Jim McCall has been the district's Finance Officer for 15 or 16 years. He is responsible for the district's financial accounts, including budget and payroll. He is also responsible for paying invoices as Director of Purchasing. Occasionally, school board members request Mr. McCall to answer questions regarding the district's financial accounts. Petitioner is required to approve monthly voucher reports and the annual financial report. The Superintendent and Petitioner's chairman co-sign checks issued by the district. Usually a signature machine imprints their signatures on each check. The Superintendent has always followed this practice. When Mr. Jones first became Petitioner's chairman, he elected to sign each voucher personally. He also reviewed each invoice or statement before signing his name to a check in payment of a bill. On November 17, 1998, Mr. McCall sent Respondent a memorandum requesting copies of all ESE telephone and fax logs for the period beginning August 1, 1998 through November 17, 1998. Mr. McCall made the request on behalf of a school board member. Subsequently, Mr. McCall informed Respondent that the school board member making the request was Mr. Jones. Mr. McCall also informed Respondent that Mr. Jones had not requested similar records from any other department. However, it was a routine practice for Mr. McCall to request administrators to furnish other types of records in order to satisfy concerns of individual school board members. On November 18, 1998, the speech therapist at Butler Elementary School (BES) went on emergency maternity leave. Respondent and BES's principal could not locate a substitute speech therapist. In order for there to be no interruption of speech therapy services at BES, Respondent and DHC entered into a oral agreement for DHC to provide those services for $440.00 per day, inclusive of all expenses. On November 23, 1998, Respondent wrote a memorandum to Mr. McCall refusing to provide the ESE department's telephone and fax logs to Mr. Jones unless Petitioner's attorney or Petitioner, as a collective body, directed her to comply with the request. Respondent quoted Petitioner's policy regarding the lack of authority for school board members to act individually, including as a district administrator. Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. On November 23, 1998, Respondent sent the Superintendent a memorandum requesting that he place a proposed contract with DHC on the agenda for Petitioner's next meeting. The purpose of the contract was to fill a vacancy at West DeFuniak Springs Elementary School (WDSE) due to the sudden resignation of the speech/language pathologist. The proposed contract stated that the district would pay DHC $300.00 per day for all services provided by DHC's certified speech pathologist. The contract did not include any reference regarding the district's obligation to pay mileage expense. The contract stated that it was effective beginning October 5, 1998, through May 28, 1999. On November 24, 1998, Respondent wrote an addendum to her prior memorandum regarding Mr. Jones' request for the ESE department's telephone and fax logs. This document states: On the date of November 23-24, 1998 I communicated with Mr. Mike Dill, Regional Director of the Federal Bureau of Investigation regarding your request for 'a copy of all telephone and fax logs for the time period of August 1st - November 17th, 1998.' I was directed by Special Agent Dill not to release these records. Therefore, I will comply with Mr. Dill's recommendation. In addition, independent legal counsel will be contacted for representation at this time, as well. (emphasis in original) Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. In a subsequent public meeting, Mr. Jones questioned Respondent about her November 24, 1998, memorandum. She responded orally, stating that she had talked to a Federal Bureau of Investigation (FBI) agent. According to Respondent, the FBI agent had directed her not to release the records sought by Mr. Jones. On November 30, 1998, DHC's speech pathologist provided one day of speech therapy to the students at BES. These services were provided under the oral contract between Respondent and DHC. On or about December 7, 1998, the speech therapist on emergency maternity leave from BES was granted additional maternity leave. Her maternity leave was extended through February 15, 1999. DHC's speech pathologist continued to provide speech therapy at BES under the oral contract. Respondent knew that DOE staff would perform an audit to determine the district's compliance with state and federal regulations under IDEA and Section 504 during the 1997/1998 school year. The audit was scheduled for sometime in April 1999. Respondent was concerned because many ESE records for the prior year were deficient, showing that the district had not followed proper procedures in identifying and educating ESE students. In an effort to prepare for DOE's audit, Respondent requested technical support from a DOE pre-audit team. On December 8, 1998, Judith Smith and Cathy Bishop, DOE staff members, performed the pre-audit. During their one- day visit, they examined the records of six ESE students at Freeport High School and two ESE students at Walton Middle School. On or about December 8, 1998, school board member Darrell Barnhill signed a memorandum regarding a proposed amendment to the proposed contract with DHC for speech pathologist services at WDSE. In pertinent part, Mr. Barnhill's proposed amendment inserted additional language to clarify that the $300.00 per day charge included full payment for mileage expenses and any other incidental expenses associated with DHC's provision of the services. By way of background, Mr. Barnhill noted that an emergency need for speech therapy services had existed at WDSE since October 5, 1998. He concluded that consideration of the contract was presented to Petitioner in an untimely fashion. Sometime thereafter, Petitioner approved this contract as revised. On December 14, 1998, Respondent sent the Superintendent, Mr. Jones, and FBI agent Mike Dill, a memorandum regarding the request for her to produce copies of the ESE department's telephone and fax logs. For the first time, Respondent explained that she did not comply with the request immediately because she was attempting to seek expert advice concerning the confidentiality of information related to ESE students and their families. The memo states in pertinent part: During this time period, I was misinformed through a third party that FBI agent Mike Dill had issued a directive to not release the requested logs - I acted on this information. I was informed on December 11, 1998, by Special Agent Dill that he had never issued those instructions and that, in fact, it was not a FBI matter. In the memorandum, Respondent agreed to produce the records on December 16, 1998, after redacting all confidential information. 4/ She also apologized to Agent Dill and the members of the school board for any inconvenience or embarrassment that she may have caused. Respondent made this apology after Petitioner's attorney contacted the FBI and determined that Agent Dill had never communicated with Respondent. On December 15, 1998, Mr. Jones made a walk-in visit to DOE's teacher certification office in Tallahassee, Florida. The purpose of the visit was to inquire about Ms. Farrior's certification status. By letter dated December 17, 1998, Cathy Bishop, DOE's Director of Program Administration and Evaluation, provided Respondent with a report relative to the December 8, 1998, pre- audit of ESE records. The letter listed specific deficiencies in the student records reviewed by the pre-audit team. The deficiencies noted were not limited to those created during the 1997/1998 school year. The report discussed all compliance issues observed in the records, including violations of state and federal regulations occurring in the fall of 1998 after Respondent became ESE Coordinator. Sometime during the December 1998 school holidays, Mr. and Ms. Jones met in Marianna, Florida with Gregg Centers, a member of the Auditor General's staff. The purpose of the visit was to make inquiries concerning certain DHC invoices. Mr. Jones had obtained the invoices in his capacity as a school board member. On a subsequent trip to Tallahassee, Florida, Mr. and Mrs. Jones met with Wayne Blanton regarding these same invoices. Mr. Blanton is associated with the Florida School Board Association in some capacity. During the December 1998 school holidays, or soon thereafter, Mr. Jones requested Mr. Sunday to call DOE's certification office regarding Ms. Farrior's certification. Mr. Sunday's subsequent call to DOE revealed that Ms. Farrior could not perform intelligence testing of ESE students because she was not certified as a school psychologist. By letter dated December 28, 1998, David Mosrie, Director of DOE's Division of Public Schools and Community Education, advised the Superintendent that his staff had observed significant deficiencies in IEPs developed during the 1997/1998 school year. He noted that the district had corrected some of the deficiencies. He also noted that the district's staff had been proactive in addressing concerns about violations of IDEA. Nevertheless, Mr. Mosrie specifically directed the district to "take action to conduct IEP meetings to correct any IEPs that do not contain present level statements, goals, objectives, and evaluation procedures, as soon as possible." In a memorandum dated January 4, 1999, Respondent requested the Superintendent to place a proposed contract with DHC on the agenda for Petitioner's next meeting. The proposed contract stated that DHC agreed to provide substitute speech/language therapy to the students at BES for $440.00 per day for all services, including all travel time between schools and mileage. The proposed contract stated that it was effective November 30, 1998, through February 15, 1999. Respondent's delay in presenting this proposed contract to Petitioner was caused in part by difficulty in negotiating the contract during the reallocation of corporate responsibilities between DHC and a new corporation, Beverly Health and Rehabilitation Services, Inc. On or about January 5, 1999, Respondent contacted the DOE certification office by telephone to inquire about Ms. Farrior's certification status. She learned that according to DOE's records, Ms. Farrior needed to complete specialization requirements. As ESE Coordinator, Respondent's responsibilities required her to review and verify the accuracy of invoices sent to the district by vendors who provided goods and services to the ESE department. She was expected to review DHC invoices to determine whether the charges were consistent with services provided under contracts approved by Petitioner. Respondent had a certain amount of funds in her budget for discretionary expenses. She had sufficient funds to send someone to represent the district at an autism conference. Respondent elected to send Ms. White-Crenshaw to the conference. As stated above, Ms. White-Crenshaw was a DHC speech pathologist who provided supervisory speech and language services to ESE students in the district. DHC sent the district the following four invoices: (a) an invoice dated November 30, 1998, in the amount of $440.00, for Barbara Carter's services on November 30, 1998, at BES, approved by Respondent on December 7, 1999; (b) an invoice dated October 6, 1998, in the amount of $6,454.29, for Frieda White-Crenshaw's services as a supervisor during the month of September 1998, approved by Respondent on November 20, 1998; (c) an invoice dated November 3, 1998, in the amount of $8,845.66, for Frieda White-Crenshaw's services as a supervisor during the month of October 1998, approved by Respondent for payment in the amount of $8,680.66; and (d) an invoice dated December 3, 1998, in the amount of $5,596.83, for Frieda White- Crenshaw's services as a supervisor during the month of November 1998, approved by Respondent on December 7, 1998. Respondent sent these invoices, which total $21,173.78, to Mr. McCall's office for payment on or about December 9, 1998. Mr. Jones reviewed these invoices and refused to pay them. He listed the dollar amounts that could not be paid for each invoice pursuant to the written contracts. Mr. Jones requested that Mr. McCall verify the charges in relation to the DHC contracts. Mr. McCall subsequently compared the invoices to the DHC contracts and the "outsourcing therapy labor logs" maintained by DHC staff. At the request of Mr. Jones, Mr. McCall arranged a meeting with the school board attorney; Mr. Jones; the Superintendent, and Respondent. Mr. Jones refused Respondent's request to invite DHC to the meeting. Based on advice of counsel during the meeting, Mr. McCall concluded that the district had to reduce payment to DHC for the invoices in question by $14,135.00. During the meeting, Respondent was advised that the district would not honor future DHC invoices to the extent that the invoices included charges at $55.00 per hour for the service providers' school-to-school travel time because travel time was not covered under the DHC contracts. In fact, future DHC invoices would be reduced for any service provider's time not reflected in sign-in/sign-out logs maintained at the individual schools or sites where the services were provided. Respondent agreed to inform DHC of the reasons for the reductions. At the request of Mr. Jones, she also agreed to inform DHC that its staff would have to sign-in and sign-out on logs maintained by the individual schools or sites where services were provided. Respondent created a form for DHC staff to sign because not all schools maintained sign-in/sign-out logs. These types of logs are usually kept as "site-based management decision," and not pursuant to Petitioner's policies. Mr. Jones did not request that any other vendor sign a site-based log. This caused Respondent some concern because one other ESE contract vendor did not have to keep on-site time logs. In a memorandum dated January 7, 1999, Mr. McCall directed his staff to pay $7,038.78 for services rendered by DHC staff as reflected on the four DHC invoices referenced above. According to Mr. McCall, the amount paid to DHC was reduced for the following reasons: (a) there was no contract between Petitioner and DHC for Barbara Carter to provide services at BES during the month of November 1998; (b) contracts between Petitioner and DHC that were in place did not authorize payment for school-to-school travel time of DHC employees; and (c) contracts between Petitioner and DHC did not cover expenses incurred by DHC staff for attending an autism conference. Despite this reduction in payment, DHC continued to provide uninterrupted services pursuant to the written contracts. During a school board meeting on January 12, 1999, Petitioner rejected the Superintendent's recommendation to revise the job description for a school psychologist for ten months plus two additional months (10+2) on an instructional salary schedule. Petitioner approved the Superintendent's request to advertise for a full-time ESE teacher in the Options Alternative School (Options), the district's second/last chance program. Additionally, Petitioner discussed the following matters without taking any action: (a) Mr. Jones' concern that Ms. Farrior was not a certified school psychologist and therefore could not administer intelligence tests to ESE students; (b) the approval and payment of DHC invoices; and (c) the proposed DHC contract for services at BES. During the school board meeting on January 12, 1999, Respondent stated that Ms. Farrior only lacked one course, for which she was currently enrolled, in order to be eligible for certification as a school psychologist. This information was incorrect. Ms. Farrior took no course work toward fulfilling her certification requirements during the first semester of the 1998/1999 school year. The second semester Ms. Farrior took two of the courses required for certification. In January 1999, she needed to complete those two courses, take one other course, and complete an internship. At that time, Ms. Farrior had not applied for enrollment in an accredited school psychology internship program or registered for the final academic course. In January 1999, Ms. Farrior also needed to send transcripts of courses that she had taken in prior years at Troy State University to the DOE certification office. Additionally, DOE did not have a record of some of Ms. Farrior's required examination scores. Some of the scores were missing because Mr. Sunday's office had not forwarded them to DOE. One other score was missing because Ms. Farrior had not taken the exam. Finally, Respondent misled Petitioner by stating that Ms. Farrior could be employed as "out-of-field teacher" even though she lacked certification as a school psychologist. While Petitioner's rules authorize teachers, under appropriate circumstances, to teach classes outside the areas for which they are certified, DOE rules do not permit one who is certified only to teach psychology to administer intelligence tests as an "out- of-field" school psychologist. During a January 19, 1999, school board meeting, Mr. Jones expressed his concern regarding the backlog of students requiring psychological testing. He also discussed Ms. Farrior's inability to administer intelligence tests under DOE rules. Petitioner subsequently voted to approve a contract with Florida State University's (FSU) Multidisciplinary Center for the provision of services, including intelligence testing and re-evaluations of ESE students formerly tested by Ms. Farrior. The Superintendent approved of contracting with FSU to test the ESE students. He was aware of one complaint from one parent about the backlog in testing students. However, the Superintendent was not of the opinion that the testing backlog was due to Ms. Farrior's not being certified as a school psychologist. He felt that it was a problem that Respondent inherited when she became ESE Coordinator. The Superintendent did not believe the district could eliminate the backlog until it hired a second school psychologist to fill the position formerly held by Ms. Holder. Respondent was not in favor of contracting with FSU. She wanted to allow Ms. Farrior to continue administering all tests except intelligence tests. She was willing to perform Ms. Holder's duties so that Ms. Holder could perform any re- evaluations of ESE students that were necessary. Under that arrangement, Ms. Holder eventually re-tested 24 ESE students. The test results from Ms. Holder's re-evaluations were not significantly different from the intelligence testing performed by Ms. Farrior. There were no changes in the placement of any ESE students after the re-evaluations were performed. The re-testing of the students did not result in any additional cost to the district, but it increased the workload of the ESE department. By letter dated January 20, 1999, Shan Goff, Chief of DOE's Bureau of Instructional Support and Community Services, advised the Superintendent of the following: (a) only a certified school psychologist could administer intelligence tests to ESE students; (b) an uncertified examiner could not administer the test even if a licensed individual "signed-off" on the test as supervisor; and (c) under certain conditions, an intern in an approved course of study could perform intelligence testing provided the testing was performed under the supervision of a qualified individual. Ms. Goff's January 20, 1999, letter set forth the following specific actions that the district needed to take in order to be in compliance with IDEA: Re-test all students whose tests of intelligence were administered by the non- certified individual and prepare and "addendum" or a comprehensive psychoeducational report. Please note that school psychology practices may require that a different test be used for re-testing purposes than the instrument originally administered. Determination about what tests should be administered will need to be made on an individual student basis. Make a determination about parental involvement. We believe it advisable to notify parents of the situation and the purpose of the re-test. In instances where the original testing took place some time ago, you may want to secure parental consent. Review the results of the re-testing to determine whether there are significant changes that would impact on the students' eligibility for services and/or the content of the students' IEPs. In each instance where eligibility for services and/or content of the students' eligibility or the content of the IEP would be affected, conduct a new eligibility staffing and/or IEP meeting. Please note that all state and federal requirements relative to the conduct of staffings and IEP meetings must be adhered to. Determine whether any students were counted for FTE purposes in October and/or the December 1 child count who were subsequently determined to be ineligible for exceptional student education services. Adjust these counts as necessary. In those instances where a child tested under these conditions has transferred from Walton County School Districts, provide follow-up with the receiving school district to provide guidance in corrective actions necessary for that district to be in compliance. All District School Superintendents received a letter dated January 26, 1999, from Mr. Mosrie, Ms. Goff's superior. Mr. Mosrie's letter reviewed the rules and regulations regarding qualified examiners of intelligence tests. By memo dated January 26, 1999, Greg Centers, advised the Superintendent about the Auditor General's questions concerning Ms. Farrior's employment based on a pre-audit review of the district's records. Mr. Centers noted that Ms. Farrior's temporary teaching certificate expired on June 30, 1998, and had not been renewed. According to Mr. Centers, the district's records did not indicate that Ms. Farrior was otherwise qualified for the school psychologist position. The Superintendent signed this memo on January 29, 1999, acknowledging that the Auditor General's understanding regarding Ms. Farrior's employment status was correct. By letter dated January 29, 1999, Charles Lester, Auditor General, requested the Superintendent to submit a written explanation within 30 days concerning the findings of preliminary audit findings. Attached to the letter was a finding that the district had hired a school psychologist when the district's records did not indicate the basis upon which the employee was determined to be qualified for that position. The Auditor General requested that the district provide an explanation or take corrective action to provide a certified school psychologist for administering tests and assessing placement for ESE students. After receiving the Auditor General's letter, the Superintendent met with Respondent and Ms. Farrior. During the meeting, he asked Ms. Farrior to resign. She refused to comply with his request. Terrica Carlock became the new ESE classroom teacher at Options in January 1999. The district's ESE department was responsible for evaluating and writing new IEPs for ten or twelve of Options' students who needed to be placed in the new classroom on a resource or special assignment basis. Prior to that time, ESE students at Options had been mainstreamed and provided ESE services only on a consultation basis. The IEP meetings at Options needed to be scheduled immediately in order to complete the IEPs before the state conducted a Full Time Equivalent (FTE) count in the first week of February. The district's state funding depends in part on the FTE count. In order to expedite the process, Respondent sent the necessary IEP forms to the principal at Options, on January 25, 1999. She directed the principal to schedule IEP meetings and to notify parents about the meetings. Respondent did not give the principal specific directions about the IDEA notice procedure. The principal of Options sent notices to parents about the IEP meetings by giving the notice forms to the ESE students. Ms. Carlock advised the principal that IDEA required the school to give parents a second notice to determine whether parents wished to participate in the IEP meetings or waive that right. On January 27, 1999, Ms. Carlock assisted the principal in making those calls to parents who did not sign and return the written notice. Very few parents were able to attend the IEP meetings on such short notice. The IEP meetings at Options were scheduled for January 27-29, 1999. Respondent intended to serve as the Local Education Agency (LEA) representative at the meetings. However, she was unable to attend several of the IEP meetings because of a scheduling conflict. Respondent told Ms. Carlock to continue with these meetings despite the absence of an LEA representative. Respondent told Ms. Carlock to complete the LEA's IEP paperwork even though Ms. Carlock had not been trained for that responsibility. As to the IEP meetings that Respondent was able to attend, she occasionally left the meetings to answer phone calls, directing Ms. Carlock to continue the meetings in her absence. By memorandum dated January 29, 1999, Ms. Carlock advised Respondent that she did not approve of the way the Options' IEPs were conducted. Specifically, Ms. Carlock complained that parents did not have sufficient notice of the meetings. Ms. Carlock did not feel comfortable conducting the meeting without an LEA representative as required by IDEA. She did not think she was qualified to complete the IEP paperwork, which according to Respondent was the responsibility of the LEA representative. Ms. Carlock sent a copy of her memorandum to the Superintendent and Petitioner's members. By memorandum dated January 30, 1999, Respondent attempted to explain to the Superintendent why she had not been present at the Options' IEP meetings. She accused Ms. Carlock of providing the Superintendent with erroneous information. Respondent criticized Ms. Carlock for complaining to the Superintendent and Petitioner without following the proper grievance procedure. Respondent requested that the Superintendent reprimand Ms. Carlock for making misrepresentations of fact. The Superintendent subsequently advised Ms. Carlock to stay within the chain of command when filing complaints. By letter dated February 2, 1999, Patricia Howard, DOE's consultant for School Psychology, advised the Superintendent that he had two options for providing intellectual evaluations to ESE students. First, he could employ a full-time, certified psychologist or contract with a privately licensed psychologist/school psychologist to administer and interpret all tests, including intellectual, achievement, process, emotional, and adaptive behavior. Second, he could employ a part-time, certified school psychologist or privately licensed psychologist/school psychologist to administer and interpret all tests of intelligence. In the latter case, the intellectual test results could be merged with assessments administered by other staff members that the district determined to be qualified to administer achievement, process, emotional, and adaptive behavior assessments. On February 5, 1999, the Superintendent sent the DOE certification office a letter requesting the issuance of Ms. Farrior's second two-year temporary certificate in the subject area of psychology. The letter stated that the request was based on the fact that Ms. Farrior did not graduate from an approved teacher education program. By letter dated February 8, 1999, Respondent requested Tom Gallagher, Commissioner of Education, to assist her with problems she was having as the district's ESE Coordinator. On February 9, 1999, DOE issued Ms. Farrior's temporary/non-renewable certificate to teach psychology in grades six through twelve. The certificate was effective retroactively to July 1, 1998, through June 30, 2000. On February 9, 1999, Ms. Carlock was in the ESE building at the close of the school day. She was sitting in the office of Samantha Nelson, an ESE Resource Specialist. Ms. Nelson was checking her electronic mail when Ms. Carlock noticed Respondent's husband standing in the doorway to the office. Respondent's husband was holding a video camera. The camera was pointed toward Ms. Carlock and Ms. Nelson; the red recording light on the camera was blinking. Ms. Nelson confronted Respondent's husband regarding his violation of her privacy. She and Ms. Carlock then reported the incident to the Superintendent. The Superintendent immediately went to the ESE building to talk to Respondent's husband. Respondent's husband explained that he had not intentionally taped the conversation of Ms. Carlock and Ms. Nelson. According to Respondent's husband, he was testing his video equipment in preparation for taping the school board meeting that evening. Upon learning that Respondent was not present and had no knowledge of her husband's activities, the Superintendent advised Respondent's husband that videotaping of district employees in their offices was not allowed. He told Respondent's husband to wait in Respondent's office in the future. Ms. Nelson subsequently provided the Superintendent with a written complaint, informing him that she intended to file a grievance concerning the matter. As a result of that grievance, the Superintendent agreed that he, and not Respondent, would evaluate Ms. Nelson's job performance. At the school board meeting on February 9, 1999, the Superintendent recommended that Petitioner contract with FSU for $200.00 per intellectual evaluation. The Superintendent wanted Petitioner to authorize 49 evaluations. Petitioner approved this request for an unlimited number of evaluations. At the February 9, 1999, school board meeting, Petitioner rejected the Superintendent's request to advertise for an additional school psychologist pursuant to an approved position description with an annual salary of $50,000.00. By memorandum dated February 11, 1999, Respondent advised the Superintendent that a copy of her husband's February 9, 1999, videotape would not be made available until an attorney had an opportunity to review Ms. Nelson's complaint. Respondent subsequently provided the Superintendent with a copy of the videotape. The Superintendent never reviewed the tape because he believed he had effectively resolved the matter. By letter dated February 17, 1999, Respondent requested the Superintendent to join her in seeking Commissioner Gallagher's assistance in investigating the problems she faced as ESE Coordinator. Respondent enclosed a copy of her letter to Commissioner Gallagher. On or about February 15, 1999, the speech therapist on maternity leave from BES elected not to return to work. DCH continued to provide speech therapy services even though Petitioner had not yet approved a contract for those services. DHC sent the district the following invoices: (a) invoice dated December 28, 1998, in the amount of $4,390.35, for Fredda White-Crenshaw's services as a supervisor during the month of December 1998, approved by Respondent in the amount of $3,620.35; (b) invoice dated December 28, 1998, in the amount of $2,100.00, for the services of Marilyn Marshall at West Defuniak Elementary during the month of December 1998, approved by Respondent as submitted; (c) invoice dated December 28, 1998, in the amount of $4,066.85, for the services of Julie Lange during the month of December 1998, approved by Respondent in the amount of $2,980.60; and (d) invoice dated December 28, 1998, in the amount of $2,553.02, for the services of Kathy Lafever during the month of December 1998, approved by Respondent in the amount of $1,466.77. The total amount invoiced by DHC for December services was $13,109.87. Respondent reviewed these invoices and compared them to the "outsource therapy labor logs" maintained by DHC staff. She approved or made adjustments on February 11, 1999, verifying payment due to DHC in the total amount of $10,167.72. She then sent the invoices to Mr. McCall's office for payment. Upon receipt of the invoices, Mr. McCall compared them to the sign-in/sign-out logs maintained by the individual schools or site where DHC provided services. He determined that DHC's service providers recorded more time related to student services on their "outsource therapy labor logs" than was reflected on the sign-in/sign-out logs maintained by the schools. Mr. McCall reduced the payment for DHC's December 1998 services to the amount reflected on the sign-in/sign-out site- based logs. By memorandum dated February 19, 1999, Mr. McCall directed his office staff to pay DHC for its December invoices in the total amount of $7,674.39, or $2,493.33 less than the total amount approved by Respondent. Despite these reductions in payment, DHC continued to provide services to ESE students pursuant to the contracts. By letter dated February 25, 1999, John A. Stewart, Deputy Commissioner for Educational Programs, responded to Respondent's letter to Commissioner Gallager. Mr. Stewart stated that DOE's Bureau of Instructional Support and Community Services would continue to work with the district to address compliance and programmatic issues previously identified. As to Respondent's concerns over working conditions that were unsatisfactory, Mr. Stewart stated that the DOE could not intervene in personnel matters, which are within the purview of local officials. The Superintendent wrote a letter to Commissioner Gallagher on or about March 1, 1999. The letter refers to the pre-audit critique requested by Respondent and performed by DOE's two-member team in the fall of 1998. The letter refers to significant deficiencies in IEPs developed during the 1997/1998 school year. The Superintendent requested a "task force of supplementary pre-audit personnel" to provide technical assistance in preparing for an upcoming audit of ESE records from the 1997/1998 school year. In a memorandum dated March 22, 1999, DOE advised Ms. Farrior that she needed the following in order to be certified as a school psychologist: (a) 27 additional semester hours of graduate credit in school psychology; (b) graduate credit should include six semester hours in a supervised school psychology internship, approved by DOE, at an elementary or secondary school; and (c) official documentation of a passing score on the school psychologist subject area test. At the time that Ms. Farrior received the March 22, 1999, statement of eligibility from DOE, she had not submitted her updated transcript from Troy State University, showing graduate credit received in 1992 and 1993. It did not include the graduate courses at the University of West Florida and Capella Distance Learning University, in which she was then enrolled. Therefore, DOE was not aware that Ms. Farrior had completed some of the required graduate credit course work. In March of 1999, Ms. Holder helped Ms. Farrior complete her application packet for enrolling in Capella Distance Learning University's school psychology internship program. Ms. Holder agreed to act as intern supervisor for Ms. Farrior. On March 23-25, 1999, George Pesta, Juvenile Justice Education Specialist at FSU, conducted a quality assurance review at North American Family Institute (NAFI) in Walton County. NAFI is a private, not for profit, Level Six and Level Eight facility. It provides juvenile delinquents enrolled in the Serious Habitual Offender Program with residential services in an Intensive Halfway House. NAFI provides these services pursuant to a contract with the Department of Juvenile Justice. NAFI provides its clients with educational services under a contract with the district. The district provides ESE services to NAFI's clients. Mr. Pesta's review included an audit of NAFI's ESE records. Respondent had signed five IEPs for NAFI students; these IEPs were in compliance with IDEA. One IEP that was developed before Respondent became ESE Coordinator was incomplete; it lacked goals and objectives. At a school board meeting on March 30, 1999, the Superintendent requested Petitioner's approval to advertise for a certified school psychologist for ten months plus one month (10+1) with a base salary of $33,000.00. Petitioner approved the recommendation with the base salary subject to the collective bargaining agreement. In 1999, the parent company of DHC created a new corporation to provide outsourcing therapy services. The new corporation, Beverly Health and Rehabilitation Services, Inc. (Beverly Rehabilitation), assumed DHC's obligations under the written contracts with Petitioner. In March 1999, Beverly Rehabilitation gave notice that it would no longer provide Petitioner with physical therapy and occupational therapy services. It was not economically feasible for Beverly Rehabilitation to provide these services under Petitioner's interpretation of the written contracts. Beverly Rehabilitation continued to provide Petitioner with a speech pathologist supervisor and speech therapy services pursuant to the approved written contracts. In a memorandum dated April 5, 1999, Respondent requested the Superintendent to rehire Ms. Farrior as an ESE staff employee for the 1999/2000 school year. Respondent wanted Ms. Farrior to continue working as an "evaluation specialist" until she could perform all of the functions of a certified school psychologist or an intern in an approved school psychology internship program. Respondent knew there was no position description for an evaluation specialist approved by Petitioner. She also knew that the Superintendent could not recommend the hiring of a staff member for which there was no approved position. Respondent did not request the Superintendent to recommend that Petitioner create such a position. At a school board meeting on April 15, 1999, the Superintendent recommended that Petitioner rehire Ms. Farrior as an ESE employee. Neither the Superintendent nor Respondent, who was present at the meeting, informed Petitioner that they were attempting to have Ms. Farrior rehired for a position that did not exist. The Superintendent's intent was for Ms. Farrior to fill the school psychologist position for which she was not certified. The Superintendent understood that Ms. Farrior would be enrolled in an internship program during the 1999/2000 school year. He also understood that until Ms. Farrior could fulfill the duties of a school psychologist, other members of the ESE staff would have an increased workload. Petitioner voted to reject the Superintendent's recommendation. Sometime after April 16, 1999, Petitioner approved the contract for Beverly Rehabilitation to provide BES with a speech/language therapist. The contract terms were accepted as originally proposed with Petitioner paying $440.00 per day for all services including travel time and mileage. In a memorandum dated April 18, 1999, Respondent advised the Superintendent that due to Petitioner's failure to renew Ms. Farrior's annual contract, the district would not have a staff member filling the school psychologist position at the end of the school year. Respondent stated that the district was in "dire need of hiring two individuals [as school psychologists] in order to adequately serve the needs of the ESE students of Walton County." Respondent stated that she intended to address this need at the next school board meeting. However, Respondent never requested the Superintendent to nominate a specific individual to be employed as school psychologist other than Ms. Farrior. Respondent admits that it was her duty to make this recommendation to the Superintendent. On April 19, 1999, Respondent sent the Superintendent a memorandum inquiring about the current position status of Ms. Jones. Respondent needed the information in order to prepare an organizational chart requested by the Superintendent. Respondent did not know whether Ms. Jones was a member of the ESE department or the student services department. Respondent's memorandum stated that Ms. Jones was serving in the capacity of Child Find Specialist in a position that Petitioner had not approved. In May 1999, Capella Distance Learning University approved Ms. Farrior's application to enroll in its school psychologist internship program with Ms. Holder as her supervisor. The internship program was scheduled to begin the next quarter on October 4, 1999. On May 12, 1999, Respondent sent the Superintendent a memorandum concerning Ms. Jones' annual job performance evaluation. Respondent did not want to write the annual evaluation as requested because Ms. Jones was not an ESE staff member under the organizational chart. Respondent recommended that Ms. Jones be transferred to a position with no connection to ESE students. At the May 13, 1999, school board meeting, the Superintendent recommended that Petitioner approve a position description for a school psychologist for ten months plus one month (10+1) under a salary schedule. The Superintendent requested permission to advertise for this position the following Monday. The Superintendent reminded Petitioner that the district was entitled to two school psychologists and that he would like to advertise for both of them. After much discussion, Petitioner voted to approve the advertisement of two school psychologist positions for ten months plus two months (10+2) under a salary schedule, one to be filled immediately and one to be filled later. At the May 13, 1999, school board meeting, Petitioner voted to terminate the contract with Beverly Rehabilitation for a speech/language pathologist supervisor. Ms. White-Crenshaw had been providing this service. At the May 13, 1999, school board meeting, Petitioner rejected the Superintendent's recommendation to renew Respondent's annual contract for the position of ESE Coordinator by a vote of three to two. Ms. Atkinson and Mr. Davis voted to rehire Respondent. Mr. Jones rejected Respondent's nomination based on her conduct as follows: (a) Respondent's failure to provide telephone and fax logs in a timely fashion; (b) Respondent's misrepresentation regarding Special Agent Dill's directive not to release the requested records; (c) Respondent's failure to explain the details of her oral agreement with DHC regarding charges for the service providers' travel time before recommending that Petitioner approve the contract; (d) Respondent's failure to verify the charges on the second batch of DHC invoices by comparing them with the site-based sign-in/sign-out logs; (e) Respondent's failure to check Ms. Farrior's certification credentials before recommending that Petitioner employ her for the 1998/1999 school year; (f) Respondent's recommendation that the Superintendent nominate Ms. Farrior for employment in the 1999/2000 school year when Respondent knew that Ms. Farrior was not certified as a school psychologist; and (g) Respondent's failure to recommend a certified school psychologist for the 1999/2000 school year after learning that Ms. Farrior would not be rehired. Mr. Richardson voted not to renew Respondent's contract based on her conduct as follows: (a) Respondent's recommendation of an uncertified school psychologist for the 1998/1999 school year; (b) Respondent's recommendation of the same uncertified school psychologist for the 1999/2000 school year; (c) Respondent's failure to verify the accuracy of the charges in the first and second batch of DHC invoices; and (d) Respondent's failure to provide telephone logs in a timely fashion and subsequent misrepresentation regarding Special Agent Dill's directive not to release the records. Mr. Barnhill voted to reject Respondent's nomination. He based his vote on Respondent's failure to present the proposed DHC/Beverly Rehabilitation contract for speech services at BES in a timely fashion. At the school board meeting on May 25, 1999, the Superintendent made a second attempt to nominate Respondent as ESE Coordinator for the 1999/2000 school year. Petitioner rejected her nomination for the second time. On June 30, 1999, Respondent's and Ms. Farrior's annual contracts expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rejecting the Superintendent's nomination of Respondent as ESE coordinator for the 1999/2000 school year. DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 30th day of November, 1999.
The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d) and (f), Florida Statutes (2008), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a licensed teacher in the State of Florida, having been issued Florida Educator's Certificate 1021431. His certificate covers the area of social science, and expires on June 30, 2011. During the 2008-2009 school year, Respondent was a teacher and coach at Florida State University School in Tallahassee, Florida. While attending college, Respondent played football for the University of Florida. During his football career, Respondent suffered several injuries, including five concussions and injuries to his shoulder, hand, knee and ankle. Several of these injuries required surgery, and as a result, Respondent was prescribed a series of pain medications and developed a tolerance for them. Respondent continues to have surgeries related to his football injuries and continues to take pain medication. On January 17, 2009, Respondent went on a lunch date. During the date, he consumed some alcoholic drinks. At the time of the lunch date, Respondent was also taking pain killers and did not think that these medications impaired his ability to function. However, as a result of the drinks at lunch and/or drinks consumed the night before, coupled with the use of painkillers, Respondent was impaired. Respondent does not remember the incident described below, before waking up in the Leon County Jail medical ward. As acknowledged by Respondent, the ultimate facts of the incident giving rise to his arrest are not in dispute. Respondent was intoxicated or otherwise impaired when he became involved in a verbal confrontation with his neighbor, Jordan Thompson, while the neighbor and his uncle, Gene Thompson, were attempting to secure a cable to the side of the neighbor's residence. Respondent was upset about the amount of noise he perceived the neighbor to be making. Respondent knew most of his neighbors and felt he had a good relationship with them, but did not know this particular neighbor. Respondent threatened his neighbor, shouting profanities at him, and the threats by Respondent caused Thompson and his uncle to go inside his home. Respondent returned to his own home, came back outside with a shotgun, approached the neighbor's house and continued to threaten Jordan and his uncle with shotgun in hand. Jordan Thompson's aunt, Kathleen, was inside the home and called 911. Respondent was arrested and charged with one count of aggravated assault with deadly weapon without intent to kill, a felony. All three of the Thompsons were very frightened by the incident. After his arrest, at some time over the weekend, Respondent notified administrative authorities at the school where he worked of the incident, and he was placed on administrative leave. At the end of the school semester, he was notified that, along with 47 other teachers, his contract would not be renewed. The incident was reported in the local newspaper and the website of a local television station. At least one witness who testified at hearing read about the arrest in the newspaper. Respondent acknowledged that his call to the school was motivated in part so that the school could "distance" itself from the event. On or about April 2, 2009, the charges against Respondent were amended to misdemeanor charges for trespass; improper exhibition of a dangerous weapon; and using a firearm while under the influence. On or about June 10, 2009, Respondent pled nolo contendere to the charges and the court adjudicated him guilty on all counts. Respondent was sentenced to 30 days in jail, 12 months of probation, substance abuse counseling and any recommended counseling or aftercare, random drug and alcohol screenings, 60 days in jail work camp and payment of applicable fines and fees. Respondent was also ordered to have no contact with the victims and to change his address by August 2009. By all accounts, Respondent is a gifted teacher. He is currently studying at Florida State University working on his doctorate in education. Respondent is embarrassed by his actions January 17, 2009, and regrets having acted as he did. However, he stopped short of acknowledging that he should not mix drugs and alcohol, especially at the doses to which he had become accustomed, and seems to think that he could tolerate mixing the two. Colleagues with whom Respondent worked testified at hearing on his behalf. Of particular interest was the testimony of Eula Walker, a support assistant at Florida High whose daughter had been one of Respondent's students. She, along with other staff members who testified, believed that Respondent could continue to be an effective teacher. She also had no hesitation regarding his continuing to teach her daughter following the January 17, 2009, incident.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent is found guilty of section 1012.795(1)(d) and (f) as charged in Counts One and Two of the Administrative Complaint; that his license be suspended for a period of two years; that he be required to submit to an evaluation by a qualified provider approved by the Florida Recovery Network Program within 60 days of the entry of the Commission's final order, and follow any recommended course of treatment or counseling; that he be placed on probation for a period of two employment years; and that he pay a fine of $500 to the Commission. DONE AND ENTERED this 10th day of June, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2011. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Brent McNeal, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact During October, 1980, the staff of Polk Community College prepared a cost analysis for the 1979-80 school year in accordance with requirements imposed by the State Board of Education. One of the purposes of this annual cost analysis is to allow comparison of costs among community colleges. The cost analysis for the 1979-80 school year indicated that Polk Community College had high instructional costs per full-time student in comparison to other community colleges. The District Board of Trustees of Polk Community College accordingly requested that the college staff conduct further studies to examine the cost effectiveness of the instructional program. These further studies revealed that Polk Community College employs more full-time instructors in various academic fields than there are classes available for the instructors to teach. This situation is the apparent result of a shift in student demand. The psychology grouping of academic subjects is among those which has been overstaffed with instructional personnel at Polk Community College in recent years. When the number of instructional personnel available to teach in the psychology grouping is considered against an optimum class size of thirty- five students and compared to the number of students who actually took courses in the psychology grouping, it is apparent that the psychology grouping had .1 more faculty members than needed for the academic year which began in September, 1977; .8 more instructors than needed for the academic year which began in September, 1978; 1.2 more faculty members than needed for the academic year which began in September, 1979; and 1.8 more faculty members than needed for the academic year which began in September, 1980. Projections for the 1981 academic year indicate that the psychology grouping will again be overstaffed by 1.8 instructors. Overstaffing of instructional personnel such as has consistently occurred in the psychology grouping of academic courses results in several inefficiencies. In order that instructional personnel can carry full course loads as required by law, it is necessary to allow some courses to be taught with fewer students than is considered efficient. Alternatively, faculty members are given special projects to complete in lieu of teaching a course. These special projects have very little value to the community college. Furthermore, by maintaining excessive instructional staffs to teach academic subjects where student demand is decreasing, the college is unable to hire instructional personnel to teach subject areas where student demand is increasing. There has been an increase in student demand for courses in data processing at Polk Community College. The college administration desires to reallocate its resources to provide more faculty members to teach data processing courses rather than courses in psychology for which student demands have decreased. The administration has accordingly recommended to the college's District Board of Trustees that one psychology instructor be terminated. The Respondent, James E. Durant, IV, is a psychology instructor at Polk Community College. The college administration has recommended that his employment be terminated due to the overstaffing in the Psychology Department. In making this recommendation, the administration evaluated the Respondent vis- a-vis other psychology instructors in the following areas: the capacity of the faculty members to meet the educational needs of the community, including consideration of past and anticipated demand for courses and their cost effectiveness, and future curriculum needs; the efficiency of the faculty members as indicated by such factors as professional evaluations; the educational qualifications of the faculty members including their versatility, level of degree, field, and length of service; and whether the faculty members have a continuing contract or annual contract with the community college. The administration concluded that there were no significant differences among instructional personnel in the psychology grouping in the areas of future curriculum needs, educational qualifications and type of contract. This conclusion is supported by the evidence. It does not appear that curriculum needs within the psychology grouping are changing. All of the faculty members in the psychology grouping have either master's degrees or doctorates and have been employed at the community college for a lengthy period. All are on continuing contract. The administration contends that the Respondent is the least cost effective of the psychology instructors and that he has been the least efficient. The administration based its conclusion that the Respondent was the least cost effective of the psychology faculty members through an analysis of weak and cancelled sections that have been taught by psychology faculty members. Weak sections are those classified as having been taught with fewer than fifteen students. Cancelled classes are those for which there was so little student interest that a scheduled course was cancelled. There are several deficiencies with use of a "weak and cancelled section matrix" as a means of determining the cost effectiveness of an instructor. The fact that a class runs weak or must be cancelled can be the result of factors which would reflect favorably upon an instructor. For example, if an instructor develops experimental classes or teaches courses beyond the introductory sort, there is likely to be less demand for the courses, but the courses would have an important function in the community college curriculum. Furthermore, student demand for classes depends to some extent upon factors that are beyond the control of the instructor. Student demand for classes is high, for example, during certain times of the day and low during others. Classes are scheduled by the administration, and not by the instructors. Despite these deficiencies of considering weak and cancelled sections as evidence of poor cost effectiveness, it is appropriate to do that in this instance. For the 1977 through 1981 academic years, the Respondent had a total of 32 weak or cancelled sections. No other faculty member in the psychology grouping had more than 13 weak and cancelled sections during that period, and the four other faculty members combined had only 34 weak and cancelled sections. These figures establish that there is significantly less demand for courses taught by the Respondent than courses taught by other members of the psychology grouping, and that he is therefore the least cost effective instructor within the grouping. The administration's contention that the Respondent is the least efficient instructor within the psychology grouping is supported by the evidence. The Respondent has consistently received the lowest supervisory and student evaluations of instructors within the psychology grouping since the 1975 academic year. Furthermore, there have been more student complaints lodged with respect to the Respondent than for all other members of the psychology grouping combined. The large number of student complaints resulted in remedial action being taken with respect to the Respondent during the 1979 academic year. The Respondent's classes were monitored more closely than is usual, and the number of complaints was reduced for a short period. During the 1980 academic year, however, the large number of student complaints has persisted. Typical student complaints have been that the Respondent is not accessible to answer questions, and that he degrades students by making them wait for inordinate periods outside his office or classroom. While it does appear that the Respondent is trained to teach courses outside of the psychology grouping, it appears that he has taught primarily psychology courses for a number of years. The evidence would not sustain a conclusion that he is qualified to teach in areas where there is a need for instructional personnel. The Respondent has contended that he is qualified to teach mathematics and French; however, there is no competent evidence in the record to support these contentions. The Respondent has contended that inappropriate factors were considered by the administration in recommending that he be terminated. He contends that the reasons given by the administration for terminating him are actually a subterfuge, and that the administration is seeking to terminate him because of the Respondent's political activities, and because of his views on controversial subjects. These contentions are not supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the District Board of Trustees of Polk Community College enter a final order accepting the recommendation that the Respondent, James E. Durant, IV, be terminated from his position as an instructor of the community college, and that the Respondent be terminated effective at the conclusion of the 1980-81 academic year. RECOMMENDED this 29th day of July, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER 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 29th day of July, 1981. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell, Boswell & Conner Post Office Box 1578 Bartow, Florida 33830 Dr. James E. Durant, IV 2605 Reef Court Orlando, Florida 32805 Mr. Frederick T. Lenfestey President Polk Community College 999 Avenue H, Northeast Winter Haven, Florida 33880
The Issue The issue is whether Petitioner is entitled to a consumer’s certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a Florida not-for-profit corporation. At all material times, Petitioner has qualified as a Section 501(c)(3) organization under the Internal Revenue Code. Since March 1992, Petitioner has also held the sales and use tax exemption that it seeks in this case. Pursuant to a change in law requiring all exempt organizations to reapply, Petitioner submitted an Application for Consumer’s Certificate of Exemption dated February 1, 1997. By stipulation, the parties agree that, for the purpose of this case, the sole legal basis for the application is Section 212.08(7)(o), Florida Statutes, and, if Petitioner fails to prevail in this case, it may immediately file an application seeking the same exemption under another statute, such as Section 212.08(7)(n). Petitioner was incorporated in 1989. It was first incorporated in 1975, but its corporate status lapsed. Petitioner has been in operation for 40 years. In broadest terms, Petitioner’s purpose is to assist social-studies education in Florida. Petitioner’s major activities involve training teachers of social studies. The most important annual activity of Petitioner is to sponsor a statewide conference that gives social-studies teachers a chance to receive inservice training. This inservice training satisfies, in whole or in part, each teacher’s requirement to obtain inservice training credits in order to maintain her teaching certificate. Petitioner conducts the conference in October during inservice days on which public-school teachers statewide are generally relieved from classroom duties. Between 600 and 1200 teachers participate in this annual conference. The conference runs two days, but Petitioner offers preconference institutes for a day or two prior to the start of the conference. These institutes, which are held at the same location as the conference, provide social-studies teachers with more specialized training in social studies. Petitioner also assists four regional affiliates in conducting inservice training to social-studies teachers. These affiliates are the Southwest Florida Coalition for the Social Studies, Big Bend Council for the Social Studies, Central Florida Coalition for the Social Studies, and Northeast Florida Council for the Social Studies. Petitioner works with various organizations, including the Florida Department of Education, ensuring that these organizations are aware of the interests of social- studies teachers and that the teachers are aware of the activities of these organizations. Petitioner quarterly publishes Trends in Social Studies, which provides useful, current information to social- studies teachers. Petitioner sells advertising space in the journal, mostly to educational publishers. Petitioner provides free space to the Florida Department of Education, state universities, state community colleges, the Holocaust Center, and African-American educational centers. Partly through the use of an endowment fund, Petitioner also provides additional funding for the development of social-studies teachers and the promotion of social-studies education. Petitioner provides awards, including small monetary sums, for exceptional social-studies teachers in Florida, and recognizes, at the annual conference, the outstanding social-studies teacher from each of Florida’s 67 districts. Petitioner’s major sources of income are membership fees and conference registration fees. Individual teachers pay membership fees. Conference registration fees are paid by checks from individual attendees, school districts, archdioceses, and the State of Florida. Educational vendors pay Petitioner fees for the privilege of showing their products and services at the conference. Vendors’ fees typically make up the margin by which Petitioner’s revenues exceed expenses for the conference. Petitioner does not have any paid employees. Dr. Theron Trimble, who started teaching social studies in Florida in 1966, is the executive director of Petitioner and has been associated with Petitioner for 30 years. Dr. Trimble’s full-time employment is in the Collier County School District, where he is director of Fulltime Equivalents and Resource Allocations. All persons working for Petitioner are, like Dr. Trimble, volunteers with full-time educational employment throughout Florida. Petitioner pays small sums to instructors or presenters at the annual conference and pre- conference institutes, but these payments are strictly for their services in conducting their seminars. Petitioner intends to continue helping social- studies teachers meet students’ changing needs in social- studies education. For example, Petitioner recently sponsored an inservice program designed to help teachers incorporate computers in social-studies education. At a time of reduced state involvement, Petitioner has tried to fill the gaps in funding and curriculum control. Petitioner’s funding efforts are directed toward schools and teachers, rather than school districts. Three years ago, Petitioner started an endowment fund to establish a long-term mini-grant program for social- studies teachers. According to the Webster’s New Collegiate Dictionary, the first definition of “office” is “a special duty, charge, or position conferred by an exercise of governmental authority and for a public purpose: a position of authority to exercise a public function and to receive whatever emoluments may belong to it <hold public ~> [and] a position of responsibility or some degree of executive authority.” The fourth definition is “something that one ought to do or must do: an assigned or assumed duty, task, or role [and] the proper or customary action of something: FUNCTION.” The fifth definition includes: “a place in which the functions (as consulting, record keeping, clerical work) of a public officer are performed [and] the directing headquarters of an enterprise or organization.” The last definition is “a major administrative unit in some governments <British Foreign Office [and] a subdivision of some government departments <Patent Offices>.” According to the American Heritage Dictionary of the English Language, the second and third definitions of “office” are “[a] duty or function assigned to or assumed by someone: “the maternal office was supplied by my aunt (Gibbon) [and] “[a] position of authority, duty, or trust given to a person, as in a government, corporation, or other organization: the office of vice president.” However, the fourth definition is: “[a]ny of the branches of the Federal government of the United States ranking just below the departments [and a] major executive division of the British national government, often headed by a cabinet minister.” And the fifth and seventh definitions are “[a] public position: seek office" [and] [o]ften plural[; a]n Act performed for another, usually beneficial: a favor: 'The projected duel . . . was halted by the offices of friends on both sides.' (Katherine Anne Porter).” Webster’s second and third definitions of “administration” are “performance of executive duties: MANAGEMENT [and] the execution of public affairs as distinguished from policymaking.” The fourth definition includes “a governmental agency or board.” American Heritage’s first definition of “administration” is “[t]he management of affairs.” However, the second definition is “[t]he activity of a sovereign state in the exercise of its powers or duties.” The fourth definition is “[t]he management of any institution, public or private.”
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order granting Petitioner’s application for a consumer’s certificate of exemption from sales and use tax. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998. COPIES FURNISHED: Dr. Theron Trimble 3710 Estey Avenue Naples, Florida 34104 Kevin J. O’Donnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issue for determination at the final hearing was whether the Petitioner, Edward Hoffman, is entitled to licensure in Florida as a psychologist. At the final hearing, Respondent's Composite Exhibit 1 was offered and admitted into evidence.
Findings Of Fact On August 1, 1983, the Petitioner Edward Hoffman applied for psychologist licensure by examination with the Respondent Department of Professional Regulation. Following a review of the Petitioner's doctoral transcript, supervision forms and other information submitted, the Board of Psychological Examiners determined that the doctoral program completed by the Petitioner was not comparable to those approved by the American Psychological Association as required by Section 490.005(1)(b), Florida Statutes, and that inadequate documentation was submitted to verify completion of two (2) years of full-time experience in the field of psychology, only one of which may be predoctoral as required by Section 490.005(1)(c), Florida Statutes. On October 21, 1983, the Petitioner requested a hearing on the denial in order to dispute the Board's findings that he had failed to provide documentation of supervised internship and had attended a graduate program that did not meet the Board's rules. The Petitioner was provided notice of the formal hearing at the address he supplied in his initial request for hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered denying the application for examination as a psychologist of the Petitioner Edward Hoffman. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of December, 1983. SHARYN L. SMITH 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 20th day of December 1983. COPIES FURNISHED: Edward Hoffman, Ph.D. 11301 Northwest 15th Street Pembroke Pines, Florida 33026 Randall A. Holland, Esquire Assistant Attorney General Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
The Issue The issues in this cause are as framed by an Administrative Complaint brought by the Petitioner against Respondent. Through this document it is charged that the Respondent attempted to obtain a license from the State of Florida pertaining to the practice of psychology and that he did so by actions of bribery or fraud, or fraudulent representation. See Section 498.009(2)(a), Florida Statutes.
Findings Of Fact Petitioner, State of Florida, Department of Professional Regulation, is charged with the responsibility of regulating the practice of those persons licensed as mental health counselors in the State of Florida. This authority is in pursuit of Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 490, Florida Statutes. Respondent, in all relevant time periods contemplated by this Administrative Complaint, was and is a licensed mental health counselor in the state of Florida. His license number is MH 0000294. On September 22, 1982, Petitioner received the Respondent's application to become a psychologist through exception. In turn, this was followed by an application for licensure based upon examination as received by the Department on October 4, 1982. Through the application process and in the interest of obtaining a license to practice psychology in Florida, Respondent indicated that he had received a doctorate (Psy D) in clinical psychology from the University of England at Oxford. It was further indicated by the Respondent that this school from which he obtained his doctorate was accredited by the European Accreditation Society. Further, Respondent indicated that he had received the degree in January 1981. One of the prerequisites for licensure in the State of Florida, as a psychologist, concerns the need to receive a doctorate in psychology from a psychology program which has been accredited by the American Psychological Association or, in the alternative, a degree which has been earned from an equivalent educational program. The University of England at Oxford not being an institution accredited by the American Psychological Association, it was necessary for the Respondent to demonstrate the equivalency of his academic achievement. The mechanical format which the Petitioner utilized in determining the question of equivalency was a form referred to as Psychology Program Analysis Form. A copy of this form as submitted by the Respondent in pursuit of his licensure as a psychologist may be found in the Petitioner's composite Exhibit 3 admitted into evidence. This item was received by the Department of Professional Regulation on September 16, 1983. The instructions for this form indicate that Part II shall be completed by the dean of the department from which the applicant had been awarded the doctoral degree. It is further indicated that this form should be mailed directly to the Board of Psychological Examiners of the State of Florida. In other words, it is the dean of the school who is responsible for the completion of the second portion of the form and for its submission to the State of Florida, directly. Furthermore, it was intended that the second part of the form, having been completed by the educator, should be signed by that person. Although an individual affiliated with the University of England at Oxford, one Anthony George Asquith, did sign the form dated December 1, 1982, Respondent is the person who completed the substance of this information provided to the Petitioner in Part II. That being so, Respondent acted contrary to the instructions given by the licensing agency and defeated the purpose related to having independent program assessment and verification offered by the officials within the University of England at Oxford. More importantly, for reasons as discussed subsequently, Respondent submitted this information in furtherance of his fraudulent attempt to gain a license to practice psychology in Florida. Among other misleading comments set out in the second part of the Psychology Program Analysis Form is the claim that the program at the University of England at Oxford is ". . . organized in a graded sequence of study designed by the psychology faculty responsible for the program." This program was not organized. In fact, there was no program. Instead, the University of England at Oxford was an organization having as its purpose the provision of phony degrees for those persons who had money to spend in obtaining bogus academic credentials. The less than genuine nature of the education allegedly provided by the University of England at Oxford was a fact which Respondent could easily discern. Consequently, his claim that he had received a doctorate from the University of England at Oxford, as an aid to getting a license to practice psychology in Florida, is patent fraud. Respondent, in furtherance of this fraudulent attempt, also submitted a document referred to as a transcript of grades for courses taken while a student at the University of England at Oxford. A copy of this transcript may be found in the Petitioner's composite Exhibit 3. Respondent was not involved in the course work depicted as being achieved while pursuing his studies at the University of England at Oxford. In actuality, Respondent did not pursue any courses at the University of England at Oxford. Respondent's involvement with the organization known as the University of England at Oxford began when he determined that he wished to obtain a doctorate degree in psychology without pursuing traditional course work. To this end, he wrote to the University of England at Oxford and received a catalog, a copy of which may be found as Petitioner's Exhibit 4 admitted into evidence. Respondent provided that organization with an enrollment fee. He also provided them with what the Respondent describes as a doctoral thesis. This doctoral thesis was not defended before the faculty at the University of England at Oxford. Indeed, the catalog for participation in the program offered by the University of England at Oxford did not require submission of a thesis to obtain a doctoral degree. All that was mandated was sufficient money to satisfy those persons within the University of England at Oxford that sufficient money had been paid to obtain the so-called doctorate degree. A copy of the alleged thesis may be found as Respondent's Exhibit 3 submitted into evidence. Although Respondent attempts to defend his actions in submitting his application for licensure as a psychologist based upon his argument that in his initial activities with the University of England at Oxford he had no reason to believe that the organization was less than genuine, this explanation is not credited. The facts demonstrate that from the inception, Respondent should have realized that the University of England at Oxford was not a legitimate academic institution and his utilization of the claimed degree from that organization constituted ill-gotten gains which he parlayed into an attempt to defraud the State of Florida in pursuit of licensure and, ultimately, the public who might be subjected to his practice as a psychologist. Dr. John Bear, an expert in assessing the bona fides related to non- traditional educational institutions, gave testimony at the final hearing. His familiarity with the University of England at Oxford goes so far as arriving at the door of the organization, only to find that the business being conducted there was that of a place where mail was received. In London, England, at the address given for the University of England at Oxford, he found a man seated behind a desk and when he asked of this person whether this location was the University of England at Oxford, the man replied, "We receive their mail here." There was no campus. There was no faculty. The facility was only a mail- receiving service address. In assessing Petitioner's Exhibit 4, Dr. Bear did not find the catalog to depict a legitimate school. His opinion concerning the legitimacy of the University of England at Oxford is accepted when he describes the school as clearly not being legitimate. Some of the observations which he had which lead him to those conclusions, and which are accepted as factually correct, concern the lack of a telephone number, the fact that the organization calls itself the University of England at Oxford, when it is located in London and the university town of Oxford is some distance away, and the fact that the literature within the catalog indicates that it is not necessary to do anything to receive a degree other than submit a resume. The lack of necessity to provide a thesis is an item which Dr. Bear feels that no legitimate doctoral program would allow for. Dr. Bear was struck by the fact that the only things necessary were submission of the resume and payment, and that the resume need only be brief and to the point. He indicates that the catalog points out that the person obtaining the so-called degree need not be concerned with meeting traditional standards of experience and that any resume or thesis provided would be favorably regarded. He points out that the fact that the catalog indicated that a 20 percent discount would be provided for those persons wishing to earn two or more degrees at once. This pertains to a 20 percent discount on the second degree and any degree thereafter. This, in Dr. Bear's thinking, is unheard of in legitimate education. The method of payment for the degree through money order, as opposed to checks, and the fact that the money orders would be made out to ISP is found to be irregular. Dr. Bear is struck by the fact that the catalog states that the degrees would be backdated to any year the applicant chooses, back to the year 1918. The year 1918 is the year indicated as being the founding year of the University of England at Oxford. Again, this backdating of a degree is unheard of in legitimate education, according to Dr. Bear. He points out that the degree can be received within six weeks, which seems inordinately short. He points out that no faculty is listed within the catalog. When he attempted to obtain a list of faculty from the University of England at Oxford, he received another catalog. His subsequent investigation revealed that there was no faculty, as mentioned before. He points out the fact that a fifty dollar charge is made for the receipt of transcripts from the University of England at Oxford. He found this to be unusual in that no courses are taken or grades received, and yet a transcript can be provided upon the payment of fee. In response to a question by Petitioner's counsel, Dr. Bear believes that the University of England at Oxford is a "phony-degree mill." He believes this to be so, given that the institution awards degrees without reason for doing anything other than paying money. There are no educational standards and there is no education being provided. Finally, Dr. Bear feels that any reasonably intelligent person could have perceived that the University of England at Oxford was not a legitimate educational institution. This insight includes the Respondent, and it is found that Respondent recognized or should have recognized that the University of England at Oxford was not legitimate. Other incidents which point out the scope of the fraud perpetrated by the Respondent in his attempt to gain licensure as a psychologist would include the submission to the Board of Psychology of the State of Florida a letter dated September 28, 1981, from Nelson Corcoran, the purported Dean of Students at the University of England at Oxford, directed to David A. Schriemer, who was a mental health program coordinator with the State of Florida, Department of Health and Rehabilitative Services. The correspondence, which the Respondent had knowledge of, indicates his attending classes at the University of England at Oxford, which he did not. The letter makes reference to the faculty at the University of England at Oxford, which Respondent had never met, nor had he met any students at the University of England at Oxford as the letter suggests. In the course of the hearing, Respondent alludes to a letter from the World Education Services, Inc., dated August 26, 1981, Respondent's Exhibit 1 admitted into evidence. This letter was obtained in Respondent's pursuit of an employment position which required doctoral level education. This correspondence was unrelated to the attempt at gaining licensure to practice psychology. The letter from World Education Services, Inc., indicates that the University of England at Oxford awards degrees equivalent to doctor's degrees in the United States, related to the field of psychology. The World Education Services, Inc., is an accrediting organization. If the Respondent was only conversant with the remarks of World Education Services, Inc., in their August 26, 1981, letter, a stronger argument might be made in his favor, although that argument would not overcome the clear import found within the catalog of the University of England at Oxford pointing out the unacceptability of that alternative form of education. Nonetheless, it was made abundantly clear to the Respondent on November 3, 1981, in correspondence from an official within the World Education Services, Inc., that it retracted its comments on the legitimacy of the doctoral program at the University of England at Oxford. A copy of that correspondence of November 3, 1981, is found as Respondent's Exhibit 2 admitted into evidence. Again, this is correspondence related to Respondent's employment situation, not in pursuit of the attempt to gain licensure as a psychologists. This latter correspondence from World Education Services, Inc., was never submitted in his attempts to gain employment at a doctoral level. This withholding of the information from his employer at that time, the State of Florida, Department of Corrections, was further evidence of the fact that the Respondent recognized the problems associated with the degree that he had obtained from the organization known as the University of England at Oxford. The November 3, 1981, correspondence clearly withdraws any statement of accreditation when it says that the doctor of psychology degree which the Respondent obtained in 1981 would not be considered in England or the United States for employment or academic purposes and that Respondent had not completed education in England which was equivalent to a doctoral degree in the United States.
The Issue Whether the Respondent's license as a mental health counselor should be revoked, suspended or otherwise disciplined based on the allegation contained in the Second Amended Administrative Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a mental health counselor in the State of Florida, having been issued license number MH 0001282. The Respondent was awarded the degree Doctor of Philosophy with an area of specialization in Counseling Psychology from The Union Graduate School, The Union For Experimenting Colleges and Universities. Subsequently, the Respondent completed course work and training in, among others, the areas of psychological testing and neuropsychological examinations. The Respondent has never been licensed as a psychologist in the State of Florida under Chapter 490, Florida Statutes. However, the Respondent was allowed to practice what was commonly referred to as psychology without a license as long as the Respondent did not use the word "psychologist" or related terms in his advertising or professional activities. At all times material to this proceeding the Respondent was a member of the Florida Psychological Practitioners Association (FPPA), a private nonprofit association of psychologists, and the American Psychological Practitioners Association (APPA), a private nonprofit association of psychologists. In a promotional or advertisement letter dated October 8, 1990, the Respondent advises attorneys who specialize in personal injury cases of his services for a "regimen of rehabilitation, on an OUTPATIENT basis, for individuals with various cognitive deficits such as attention and concentration memory disorders". In the course of advising these attorneys of his services, the Respondent indicates that he has provided "neuropsychological examinations" for clients of certain attorneys and would provide "neuropsychological examinations" in performing this "regimen of rehabilitation" if one had not already been administered. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" in the signature block of the letter below the signature of the Respondent. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. In a letter dated November 19, 1990, to the Department's employee, Denise Love, Complaint Analyst, the Respondent responds to an earlier letter from Love concerning a complaint. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" appear in the signature block below the Respondent's signature. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. On a promotional or advertisement letter dated January 10, 1991, containing basically the same message as the October 8, 1990, letter referred to in Finding of Fact 5 above, appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" on the top of the letter; and (c) the words "Fl. Lic. #XA0001479; #MH0001282" and "Division of Workers Compensation Rehabilitation Services Provider" in the signature block below the Respondent's signature. There was no evidence as to what Florida License #XA0001479 refers to, but Florida License #MH001282 refers to Respondent's license as a mental health counselor. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. There is sufficient evidence to show that at all times material to this proceeding, the Respondent was: (a) qualified to perform psychological services, including neuropsychological examinations and psychological testing; (b) not prohibited by statute or rule from offering or performing psychological services, including neuropsychological examinations and psychological testing; Board Certified in Clinical Psychology by the APPA; (d) a member of the FPPA or APPA; and (e) authorized by the FPPA or the APPA to display the seal of each of these respective organizations on his stationery. The letters "LMHC" or the words "licensed mental health counselor" do not appear on the Respondent's business card obtained by Michelle Hampton from Respondent's office while serving papers on the Respondent around February 8, 1991. However, the words "Florida License: #MH0001282" do appear on the card. The letters "LMHC" or the words "licensed mental health counselor" do not appear on either the Respondent's letter of April 8, 1991, to Denise Love, or on the Respondent's business card enclosed with the letter. However, the words "Florida License: #MH 0001282 do appear on both the Respondent's letter and business card. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on the Respondent's letter of October 21, 1991, to Michelle Hampton. However, the words "Psychotherapist & Examiner" and "Florida License: #MH0001282" do appear on the Respondent's letter in the signature block below the Respondent's signature. There was sufficient evidence to show that Respondent was qualified, by training and experience, to hold himself out as a psychotherapist. Section 491.0149(3), Florida Statutes, which requires a licensed mental health counselor to include the use of the words "licensed mental health counselor" or the letters "LMHC" on all promotional material, including cards, brochures, stationery, advertisements, and signs naming the licensee went into effect on October 1, 1990. Respondent did not become aware of Section 491.0149(3), Florida Statutes, until sometime around January, 1991, and, at that time, it was the Respondent's understanding that the requirement of that section would be met by placing his mental health counseling license's number on all promotional materials. Thereafter, Respondent placed his mental health counseling license's number on all promotional material. By letter addressed to the Respondent, referencing the Department's Case #9014778, dated October 10, 1991, Michelle Hampton advised the Respondent that the Department's attorney had requested that Hampton obtain additional information concerning Respondent's credentials, such as the continuing education courses and the college courses completed by Respondent, that would enable the Respondent to administer, and to score, psychological tests. The letter did not cite any statutory authority for requiring this information or the penalty for failure of the Respondent to furnish this information. There was insufficient evidence to show that the Department had made an earlier request of the Respondent on September 10, 1991, to furnish information concerning the Respondent's credentials, such as the continuing education courses and college courses completed, that would enable the Respondent to administer, and to score, psychological tests, notwithstanding the testimony of Michelle Hampton to the contrary which lacks credibility. By letter dated October 21, 1991, the Respondent responded within 30 days to Hampton's letter of October 10, 1991. As explained in the Respondent's letter, the Respondent considered the request in Hampton's October 10, 1991, letter as being: (a) not relevant to Case #9014778 which involved an allegation that Respondent had utilized a title reserved for those licensed under Chapter 490, Florida Statutes; (b) inappropriate; and (c) harassment. Although, the Respondent did not furnish the requested information at that time, the Respondent did not refuse to furnish the information in his reply to Hampton's letter. The Department's Case #9014778 was opened as result of a complaint filed by Susan B. Filskov, apparently involving an alleged violation of Chapter 490, Florida Statutes, and was subsequently closed along with several other cases involving complaints filed by other individuals against the Respondent. The Department made no further attempt to: (a) obtain this information from the Respondent; (b) explain to the Respondent how the information was relevant to the investigation; (c) explain the Department's need for obtaining the information; or (d) point out that the Respondent was statutorily required to furnish relevant information upon request of the Department. There is sufficient evidence to show that Respondent's conduct in regards to the Department's request for information concerning his credentials did not violate Section 491. 009(2)(o), Florida Statutes. Prior to October 1, 1992, no statutory limits on the practice of psychology or the allied fields (Chapter 491, Florida Statutes, specifically mental health counseling) existed in the State of Florida, apart from the limits on the use of the term "psychologist" and related terms described in Section 490.012, Florida Statutes, and Section 491.012, Florida Statutes, unless a person was a licensed psychologist or licensed in one of the allied fields under Chapter 491, Florida Statutes. The restriction on the use the terms referred to in Finding of Fact 20 by those persons not licensed under Chapters 490 and 491, Florida Statutes, was challenged in federal court. On January 3, 1992, in the case of Abramson v Gonzalez, 949 F.2d 1567 (11th Cir. 1992), the court issued an opinion finding that the Psychological Services Act [Chapter 490, Florida Statutes (1991)], and Chapter 491, Florida Statutes (1991), placed an unconstitutional burden on commercial speech and remanded for proceedings not inconsistent with the opinion. Included as plaintiffs/appellants in this case were several practicing psychologists, clinical social workers, therapists, and the FPPA, of which Respondent was a member. The defendant/appellees were The Florida Department of Professional Regulation, the members of the Florida Board of Psychological Examiners, and the members of the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling. On August 26, 1992, after remand on January 3, 1992, by the United States Circuit Court of Appeals, the United States District Court, Middle District of Florida, Orlando Division, in the Case styled as Abramson et al. and Florida Psychological Practitioners Association vs. Larry Gonzalez, et al., Case No. 81-735-Civ-Orl-19, entered a Stipulated Order of Permanent Injunction enjoining the defendants from enforcing against any plaintiff, or any member of plaintiff Florida Psychological Practitioners Association, the provisions of Section 490.012, Florida Statutes, and from otherwise attempting to require any plaintiff, or member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "psychologist", "psychology", "psychological", psychodiagnostic", "school psychologist, or "psychotherapy", or from describing any test or report as "psychological" so long as that person was permitted under the laws of the State of Florida to practice as a psychologist. The injunction also enjoined the defendants from enforcing the provisions of Section 490.012(3), or the provisions of Section 491.012(4) or (5), Florida Statutes, with regard to Section 491.012(3), Florida Statutes, and from attempting to require any plaintiff,or any member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "mental health counselor", "psychotherapist", psychotherapy", "mental health therapist", or "mental health consultant", so long as that person was permitted under the laws of the State of Florida to practice as a mental health counselor. There are like provisions enjoining the defendants as to "clinical social workers" and "marriage and family therapist" which are not pertinent here. Likewise, any plaintiff or plaintiff member of the Florida Psychological Practitioners Association were enjoined from the use of any term or title which implies or connotes that such individual holds a license issued under the provisions of Chapter 490 or 491, Florida Statutes, unless that individual is the holder of a valid license issued pursuant to either Chapter 490 or 491, Florida Statutes. There is insufficient evidence to show that the Respondent's use of the words "Board Certified Psychological Services", "Board Certified, Clinical Psychology ", "neuropsychological examinations", "psychotherapist" or the use of the "FPPA" and "APPA" seals on stationery that Respondent used for promotional, advertisement or other business purposes: (a) was false, deceptive or misleading advertisement; or (b) that Respondent was making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility. There is insufficient evidence to show that Respondent's failure to include the letters "LMHC" or the words "licensed mental health counselor" on all promotional material was to create false, deceptive, or misleading advertising, or for the purpose of making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Count I, Count II and Count IV. It is further recommended, after consideration of Rule 61F4-5.001, Florida Administrative Code, Disciplinary Guidelines, and the primary purpose of regulating any profession being to protect the health, safety and welfare of the public and not the generation of revenue, that the Board issue a letter of reprimand to the Respondent for the violation set forth in Count III of the Second Amended Administrative Complaint. DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 10th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6917 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,3); 2(5); 3(6); 4(7); 5(9); 6(10); 7(11); 10(16); and 12(11,12). Proposed findings of fact 11, 13, 14 and 16 are unnecessary in that they present matters previously presented in other proposed findings of fact which have been adopted. However, should there be any matter that was not previously adopted then such matters are hereby adopted. Proposed findings of fact 8, 9, 15, 17, 18, 19, 20 and 21 are not supported by competent substantial evidence in the record. Additionally, proposed findings of fact 17 - 20 also present argument which should be presented in the Conclusions of Law. Respondent, Harris' Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are so intermingled with argument and other matters not considered findings of fact that I do not intend to respond to each one. However, those matters that are clearly findings of fact are adopted in Findings of Fact 1 through 24. The balance are rejected as being argument, conclusions of law, matters that should be covered in the preliminary statement, or not material or relevant. COPIES FURNISHED: Charles Faircloth, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0792 Robert Watrous, Esquire 27 S. Orange Avenue Sarasota, Florida 34236 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry Dover Executive Director Board of Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background By application dated March 29, 1989, petitioner, Stuart B. Novick, sought licensure by examination as a psychologist. The application was filed with respondent, Board of Psychological Examiners (Board), which has statutory authority to license and regulate the psychologist profession. In action taken act its August 1989 meeting, the Board voted to deny the application on the ground petitioner did not satisfy the educational and work experience requirements imposed by statute and rule. In addition, the Board concluded that Novick had not submitted proof of completion of an educational course concerning HIV and AIDS, as required by agency rule. This decision was conveyed to Novick in an order issued by the Board on September 15, 1989. This proceeding involves petitioner's challenge of that preliminary decision. The specific objections to licensure will be dealt with separately in the findings below. Educational Requirements The Board's preliminary decision made the following findings pertinent to petitioner's education: Your doctoral program was not completed at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education or an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada. In addition, your doctoral program was not approved by the American Psychological Association as required by Chapter 490.005(1)(b), Florida Statutes and Chapter 21U-11.006(1)(b)1., 9., and 10., Florida Administrative Code. Petitioner received a bachelor of arts in political science from the University of California - Los Angeles in December 1970. He then obtained a masters degree in educational psychology and guidance from California State University Northridge in January 1974. In the summer of 1977 he enrolled at California Graduate Institute (CGI), an institution of higher learning in Los Angeles. After attending CGI fulltime for approximately five years, Novick was awarded a doctorate in psychology in October 1982. At issue in this case is whether CGI and its psychology program meet the requirements of the law for licensure. According to applicable statutory requirements, petitioner was required to submit satisfactory proof that he had received a doctoral degree with a major in psychology from a program which at the time petitioner was enrolled and graduated was accredited by the American Psychological Association (APA). As to this requirement, Novick conceded that when he attended CGI from 1977 until 1982, that institution was not fully accredited by the APA. Therefore, petitioner did not meet that requirement. In lieu of satisfying the requirement described in the preceding paragraph, petitioner was authorized by law to submit satisfactory proof that he received a doctoral degree in psychology from a program which at the time petitioner was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the APA. In this regard, the more persuasive evidence, including the program analysis form submitted by petitioner with his application, shows that petitioner's doctoral program did not require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. The foregoing educational requirements are embodied in Rule 21U-11.006(1)(b)10., Florida Administrative Code, and must be satisfied in order to show comparability. In view of these deficiencies, it is found that petitioner failed to satisfy this part of the requirements for licensure. In addition to the foregoing comparability requirement, petitioner was obligated to show that his education and training in psychology wash received in an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. As to this requirement, petitioner conceded that CGI's psychology program was not accredited by a recognized regional accrediting body. That admission is corroborated by a letter dated May 15, 1989 from the chairperson of CGI's department of psychology to the Board. Therefore, this criterion was not met. Work Experience In its proposed agency action, the Board cited the following concerns with petitioner's work experience: You have not completed the two years or 4000 hours of supervised experience in the field of psychology as required by Chapter 490.005(1)(c), Florida Statutes, and Chapter 21U-11.006(1) (c), Florida Administrative Code and in compliance with Chapter 21U-17, Florida Administrative Code. The experience under Dr. Milana was experience as a marriage and family therapist, rather than as a psychological resident in compliance with Chapter 21U-17, Florida Administrative Code. As explained further at hearing by the Board's executive director, although petitioner's "supervising psychologist verification form" facially complied with the required work experience in the field of psychology, the Board was concerned with the fact that Novick has been licensed as a marriage and family therapist (MFT) since September 1986, was employed as a MFT when much of the work experience was obtained, and may have rendered services in that capacity rather than as a psychological resident. After graduation from CGI, petitioner was employed as an outpatient therapist by Northside Centers (the center), a mental health clinic in the Tampa area. During the course of that employment, petitioner obtained approval from Dr. Suzette Milana, a licensed psychologist, to train under her supervision as a psychological resident at the center. According to petitioner, as confirmed by Dr. Milana's testimony as well as documents in his application file, he worked, at least part of the time, under Dr. Milana's supervision from July 1984 until the application was filed. The supervising psychologist verification form completed by Dr. Milana reflects that Novick was supervised for 228 weeks, rendered approximately 2200 hours of psychological services to clients, and was employed by the center for a total of 4880 hours. According to Dr. Milana, petitioner is now competent to perform without supervision adult, adolescent and child treatment. Doctor Milana verified that, during his supervised period of employment, petitioner participated in the following activities: evaluation and assessment, intake activity, formulation of treatment plans, treatment intervention, case management and crisis intervention, all being activities normally engaged in by psycholgical residents. However, Novick did no psychological testing since the clinic already had an employee assigned to that job. Even so, there was no evidence to establish that psychological testing is a current required part of a resident's work experience. Doctor Milana described petitioner's supervision to be the same that she received when she was fulfilling her work experience requirement for licensure. By agency rule effective October 3, 1985, the Board imposed the requirement that, during one's training period, an applicant shall be known by the title "psychological resident". In addition, a requirement was added that all business cards, signs, stationery and the like naming the applicant must also bear the name and affiliation of the supervisor/associate. Finally, each resident is obliged to advise each client at the time services are initiated of his status as a resident, the requirements of a supervised status and of the name of his supervisor. The requirement concerning the disclosure of the supervisor's identity is necessary since the supervisor must ultimately take full responsibility for the resident's patients and their treatment. During the period after October 1985 and until the application was filed, petitioner continued to use business cards issued by the center which reflected his title as being a "marriage and family therapist" and did not disclose the name of his supervisor. According to petitioner, he never indicated on any reports or insurance forms that he was a psychological resident. Further, Dr. Milana did not co-sign any reports. Although petitioner told all of his patients that he was an outpatient therapist or a MFT, he told only "some" that he was working under the supervision of Dr. Milana. Except as to these departures from the rule, petitioner's training was in conformity with the Board rule. Course in HIV and AIDS The Board's order noted that Novick had not furnished "proof of completion of an educational course concerning HIV and AIDS in compliance with Chapter 21U-21, Florida Administrative Code". According to Rule 21U- 21.001, Florida Administrative Code (1989), each person applying for licensure subsequent to July 1, 1989 shall be required to complete an educational course approved by the Board and consisting of education on the transmission, control treatment and prevention of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome with emphasis on appropriate behavior and attitude change. Novick did not submit proof of completion of such a course with his initial application. However, at hearing he stated he had completed a Board approved course at a local hospital in April 1989 and shortly thereafter forwarded a copy of his diploma to the Board. Although no documentary proof was submitted at hearing to support this claim, it was not contradicted by the Board, and it is accordingly found that Novick has satisfied this part of the licensure requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner for licensure as a psychologist by examination be DENIED. DONE and ORDERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1236 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990.
Findings Of Fact As of the end of July, 1983, Petitioner had completed all the course work required for her master's degree in counseling psychology at Wheaton College. She had not, however, taken and passed a mandatory test in the New Testament required by the college of all degree candidates prior to award of the degree earned. This test in no way concerned any academic matters relating to her specialty but was strictly limited to a knowledge of the New Testament. At the time, Petitioner had satisfactorily completed all the academic courses relating to her specialty. Because of her failure to take and pass this test, however, she was not awarded her degree at that time. Petitioner took the required test in October, 1987 and was found to have passed it and to have met all requirements for her master's degree on February 8, 1988. However, because Wheaton College does not date or award degrees until the next regularly scheduled commencement exercise, she was not actually awarded the master's degree until May 12, 1988. Transcripts of course work completed indicate Petitioner has completed more than 21 hours of graduate work with course content in human development theory and personality thereof, psychotherapy, and abnormal psych-personality courses. However, she did not offer any official course outlines, course descriptions, or course syllabi or any testimony, outside her own, to indicate that her course work meets the requirements of the statute and the Board's rule indicating the necessary course work. Petitioner has worked under the supervision of Dr. Vinod K. Bahtnagar, a Board certified psychiatrist, since June 1, 1987. Dr. Bahtnagar's credentials meet the requirement set forth in the statute and rules. The degree of supervision is also acceptable. Upon completion of her course work at Wheaton College, Petitioner interned at the Manatee Mental Health Center and then worked as a counselor there for two years. From there she went to Sarasota Palms hospital for several years where she worked under Dr. Bahtnagar's supervision and since 1987, she has worked directly for the Doctor. In each of her working years, she worked more than 1500 hours of which at least 750 was face to face dealings with clients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's application for licensure as a mental health counselor by examination be denied. RECOMMENDED this 27th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5247 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER Accepted and incorporated herein.* Accepted and incorporated herein.* Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. Rejected as not established. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. *This does not concede Petitioner's course work meets the statute or rule requirements. FOR THE RESPONDENT Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Robert L. Moore, Esquire Kanetsky, Moore & DeBoer, P. A. P.O. Box 1767 227 Nokomis Avenue South Venice, Florida 34285 David M. Maloney, Esquire Asst. Attorney General Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Kenneth A. Easley, Esquire General Counsel DPR 130 North Monroe Street Tallahassee, Florida 32399-0750 Linda Biederman Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling 130 North Monroe Street Tallahassee, Florida 32399-0750
