The Issue The issue posed for decision herein is whether or not the Petitioner meets the educational requirements for entitlement to licensure as a psychologist. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and consideration of the Respondent's proposed memorandum, I hereby make the following relevant:
Findings Of Fact Petitioner made application to Respondent to obtain a psychology license by exception pursuant to the provisions of Section 1 of Chapter 81-235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) At Petitioner's request, Respondent (herein sometimes referred to as the Board of Psychological Examiners or Board) reconsidered his application. It was reaffirmed that his doctoral degree was not from a program primarily psychological in nature because the program did not include at least one course in biological bases of behavior, cognitive-affective bases of behavior, individual behavior, or methodology for the application of psychological knowledge as required by sub-paragraphs (a), (b), (4), and (f), of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) Respondent presented the testimony of board member Edward Murray, Ph.D., who was received as an expert in these proceedings in the subject matter of psychology. In order to receive a license in Florida, an applicant, pursuant to Chapter 490, Florida Statutes, must receive a degree from a program primarily psychological in nature. The Board, in carrying out the statutory requirements, promulgated Rule 21U-11.05 to determine whether or not a program was primarily psychological in nature. In so doing, the Board has set forth a requirement that a full course be devoted entirely to the content of the following areas: (a) biological bases of behavior; (b) cognitive-affective bases of behavior; (c) social bases of behavior; (d) individual differences; (e) statistics; and (f) methodology and application of psychological knowledge. (TR-49) Without reciting the Petitioner's testimony, in hoc verba, it suffices to say that the Petitioner has taken several courses which touch upon some of the areas required in the above-referred rule (21U-11.05, Florida Administrative Code). However, Petitioner failed to establish that he had taken a class which was primarily in the "biological bases of behavior" as was required. Additionally, Petitioner failed to establish that he had taken a course which primarily dealt with the cognitive bases of behavior which was required in order to satisfy the requirements of subsection (2)(b) of Rule 21U-11.05, Florida Administrative Code. Further, Petitioner, while having taken several sociology courses, failed to satisfy the requirement of having taken a course which dealt primarily with individual behavior. Finally, Petitioner failed to satisfy the requirement of establishing that he had taken a course to satisfy the requirement of research methodology for the application of psychological knowledge. The Board requires one individual course in each specific area set forth in Rule 21U-11.05 and does not permit an applicant to piece together parts of several courses to satisfy the requirements. (Testimony of Dr. Murray, TR 51-54) Respondent's Position Respondent graduated from the University of Illinois with a Ph.D. in Social Psychology. Respondent's position is that, based on the numerous courses that he has taken, both graduate and post-graduate, including his years of experience in the counseling and advisory areas, he more than satisfies the requirements of Rule 21U-11.05, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a psychologist by exception be DENIED. RECOMMENDED this 29th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 29th day of July, 1983.
The Issue Whether Petitioner's application for licensure as a psychologist should be approved pursuant to Chapter 490, F.S. This proceeding commenced upon the provisional denial by Respondent Board of Psychological Examiners of Petitioner's application for licensure by exception as a psychologist under Chapter 490, Florida Statutes. The denial was based on the Board's determination that Petitioner's doctoral degree was not primarily psychological in nature in that it did not reflect coursework in biological bases of behavior as required by Respondent's Rule 21U-11.05(2)(a), Florida Administrative Code. Petitioner requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer. At the commencement of the hearing, Petitioner was advised of the procedures and her rights in an administrative hearing. She elected to represent herself ate the hearing. At the hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses. She submitted two composite exhibits which were received in evidence. Respondent called one witness and submitted one composite exhibit in evidence. Post-hearing submissions by the parties in the form of a Memorandum by Petitioner and a Proposed Recommended Order by Respondent have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact By application dated May 6, 1982, which was received by Respondent on May 13, 1982, Petitioner Ann M. O'Roark applied for licensure by exception as a psychologist pursuant to Chapter 490, Florida Statutes. The application reflected that Petitioner received an A. B. J. degree in journalism from the University of Kentucky in 1955, a M.Ed. from the University of Florida in 1972, and a Ph.D. from the University of Florida in 1974, with a major in Foundations of Education. She was a member of Phi Beta Kappa at the University of Kentucky, and is currently a member of various psychological associations. She was licensed as a psychologist in the Commonwealth of Kentucky in 1975. She has had extensive work experience in Kentucky, Georgia, and Florida since receiving her doctorate degree, primarily in the field of educational psychology, psychological assessment and diagnostic services, organization development consultation services, and individual and group educational/developmental services. Her application reflects that she was certified as an educational psychologist, Rank A-1, by the State of Florida in 1974. (Testimony of Petitioner, Petitioner's Exhibits 1-2, Respondent's Exhibit 1) By letter dated October 28, 1982, Respondent advised Dr. O'Roark that her application was denied for the reason that her doctoral transcript did not reflect coursework in biological bases of behavior, as required by Respondent's Rule 21U-11.05(2), Florida Administrative Code. The letter further provided Petitioner an opportunity to submit additional information concerning her doctoral program, and also advised her of her rights to an administrative hearing. Following the submission of further information by Petitioner, Respondent advised her, by letter dated October 28, 1982, that her application file, including the additional information submitted, had been reviewed, but the board reaffirmed its previous decision to deny the application. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 2) Rule 21U-11.05, F.A.C., provides that in order to be certified by the board as eligible for issuance of a psychology license by exception, an applicant must have received a doctoral degree from an accredited educational institution in a program that is "primarily psychological in nature." Such a program is defined in paragraph (2) of the rule as one that requires the successful completion of one course in each of six specified areas. One of these areas is "biological bases of behavior" and the rule provides examples of courses that qualify in such category as being "physiological psychology, comparative psychology, neuropsychology, and psychopharmacology." At the hearing, Petitioner submitted materials concerning certain courses she had taken in her doctoral program which purportedly contained from one-fifth to one-third of the subject matter in the area of biological bases of behavior. However, none of the courses deals substantially or exclusively with the area of biological bases of behavior. Most of the courses fall within other categories specified in Rule 21U-11.05(2), F.A.C. As a matter of policy, the Board in the past has not permitted an applicant to use portions of several courses to qualify as the one course required in each of the various subject matter areas. The reason for this policy is to insure that one obtains an appreciable knowledge in each of the six specified areas. (Testimony of Petitioner, Perry, Petitioner's Composite Exhibit 2) Petitioner's work as a consultant at the Albany Mental Health and Retardation Center and for the Florida Department of Transportation was characterized by officials of those organizations as very professional and successful. (Testimony of Hertwig and Kietzer)
Recommendation That Petitioner's application be denied. DONE and ENTERED this 2nd day of March, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 2nd day of March, 1983. COPIES FURNISHED: Ann M. O'Roark, Ph.D. 2904 NW 40th Place Gainesville, Florida 32605 John E. Griffin, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Jane Raker, Director Board of Psychological Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the School Board should permit Respondent to take sick leave for the period commencing December 18, 2013, through the time it takes for evaluation by a Substance Abuse Professional and any necessary rehabilitation or until Respondent’s sick leave is exhausted, whichever occurs first.
Findings Of Fact Ms. Terry Green Ms. Green has been employed by ECSD for at least five years. (See Hr’g Tr. 102, where the testimony indicates she was hired in 2008). At the time of the final hearing, Ms. Green was on leave without pay from her position as a school bus driver, her employment status with ECSD since December 18, 2013. As the driver of an ECSD school bus entrusted with the safety of the children she transports on school days, Ms. Green is required to meet certain criteria by the Department of Transportation. For example, she must have an annual medical examination. Ms. Green must also inform ECSD and the State of Florida of any pharmaceutical substances medically prescribed for her that she takes on a daily basis. Among the pharmaceutical substances on a list in her patient profile with A&E Pharmacy in Pensacola is “Hydrocod/Apap Tab10-325MG.” Ms. Green referred to the substance at hearing by its proprietary name: “Lortab.” Ms. Green does not take Lortab on a daily basis. She listed it as one of the pharmaceutical substances that are prescribed for her when she was hired by ECSD because she takes Lortab occasionally. Lortab Lortab is the proprietary name for a tablet prescribed for pain management. Its active ingredients are “acetaminophen” (commonly known as Tylenol) and “hydrocodone.” Ms. Green offered an exhibit (Ex. R-2, attached to the Transcript of the final hearing), which shows relationships between hydrocodone and codeine and morphine. It cannot be determined on the state of this record whether Lortab metabolizes in the human body into codeine and morphine, but the exhibit offered by Ms. Green raises that possibility. Ms. Green’s Illness Ms. Green was ill for a period of about three weeks that commenced around November 18, 2013, and stretched into the early part of the week of December 9, 2013. Her recovery from the illness lasted until at least the end of January 2014. For much of the time after November 25, 2013, during her illness and recovery, Ms. Green was bed-ridden. The severity of her illness was unusual. As Angela Green, her daughter, testified, “my mom has never been like that.” Hr’g Tr. 83. Running a fever as high as 103 degrees, Ms. Green showed up for work and drove her school bus from Monday, November 18 through Friday, November 22, 2013. Her illness continued through the weekend of Saturday, November 23, 2013. On Sunday, November 24, 2013, Ms. Green’s mother tried to convince her to go to an emergency room (“ER”). She had seen Ms. Green in the morning and observed, “she was a pretty sick gal.” Hr’g Tr. 75. The record is silent as to whether Ms. Green went to the ER, but it seems likely that she did not. November 25, 2013 Sometime during the early morning hours of Monday, November 25, 2013, a school day, prior to reporting for work, Ms. Green took a Lortab. Ms. Green went to work despite her illness and despite having taken the Lortab. Her determination to report to work and perform her duties is a characteristic ingrained in her from early childhood. As her mother testified, she required Ms. Green to attend school as a child unless she was “pretty much . . . on [her] death bed.” See Hr’g Tr. 77. While Ms. Green was driving the school bus that morning, a school bus assistant (another ECSD employee assigned to the bus) became concerned about Ms. Green’s condition. The concern was reported to the ECSD’s Office of the Director of Transportation. A replacement driver was sent to the bus, and Ms. Green returned to the office. A form to be used to help determine reasonable suspicion for drug/alcohol testing, entitled “Reasonable Suspicion Drug/Alcohol Testing Checklist for Supervisors” was filled out by observers to determine whether Ms. Green should be subjected to drug or alcohol testing. See Pet’r’s Ex. H. The form shows Ms. Green was observed at 9:05 a.m. in the office. Her speech was slurred, and the checklist indicates that she was mumbling. She stumbled, appeared dazed, and had unkempt hair or clothing. Four boxes were checked on the form under the section called “Today’s Job Performance”: “Mistakes due to poor judgment,” “Low productivity/Taking longer to complete tasks,” “Complaints from others about behavior/attitude/driving,” and “Late to work.” Under “Interpersonal Behavior,” two boxes were checked: “Overly sensitive to real/imagined criticism,” and “Major change in personality.” Typed onto the form with regard to the source reporting any drug/alcohol use was: “Bus assistant reported initially then corroborated in the office with two route managers who see her frequently.” The observations led to the conclusion, “The combination of factors indicates she is under the influence.” The “Test Requested” section of the form had a box checked for “Drug and Alcohol.” The form was signed by two observing supervisor/officials and dated November 25, 2013. The route managers, who observed Ms. Green, reported to the Director of Transportation that there was a reasonable suspicion that Ms. Green was under the influence of drugs or alcohol.2/ The Reasonable Suspicion Drug/Alcohol Test Ms. Green submitted to the drug/alcohol test the same day. The test results are reported on a “Federal Drug Testing Custody and Control Form.” See Pet’r’s Ex. F, at 6. Dated November 25, 2013, it shows ECSD as the “employer,” Dr. Natalie Hartenbaum of FirstLab as the medical review officer (“MRO”), and Ms. Green as the donor. Ms. Green signed a certification on the form that she submitted an unadulterated urine specimen to the laboratory’s collector and that the information affixed on the specimen bottle was correct. The report shows the specimen was verified as positive for two opiates: codeine and morphine. The Timeline The third page in Petitioner’s Exhibit F is a “TIMELINE” under “DONOR NAME: TERRY GREEN” (the “Timeline”). Compiled by FirstLab with regard to the specimen Ms. Green submitted for analysis, the Timeline commences on November 25, 2013, and concludes with entries the following December 5, 2013. The Timeline shows that the specimen collected on November 25, 2013, was received at the laboratory on November 26, 2013, for drug/alcohol analysis. According to the Timeline, the laboratory transmitted the result to FirstLab on December 3, 2013: “MORE THEN [sic] ONE SUBSTANCE FOUND.” Pet’r’s Ex. F, at 6. The Timeline shows involvement of the MRO, beginning on December 4, 2013. According to the Timeline, the MRO, after being sent the documents for review, called the Donor (Ms. Green). After an interview, the Timeline entry shows: “MRO GAVE DONOR 24 HOURS TO FAX RX.” The entry for December 4, 2013, concludes: “MRO DETERMINATION MADE POSITIVE FOR CODEINE AND MORPHINE. ANOTHER SUBSTANCE PENDING.” Pet’r’s Ex. F, at 3, TIMELINE (emphasis supplied). The Timeline shows two entries for December 5, 2013. The first December 5 entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS POSITIVE FOR CODEINE, MORPHINE AND PENDING FOR ANOTHER SUBSTANCE. MRO REC’D AND VERIFIED RX PROFILE FOR THE OTHER SUBSTANCE.” Id. (emphasis supplied). The second December 5 entry and final Timeline entry states: “MRO ASSISTANT REPORTED TO PATSY FLOWERS VOICE MAIL, NO CHANGE IN RESULT. OTHER SUBSTANCE NEGATIVE.” Id. (emphasis supplied). It may be inferred from the timing of the report of the positive for codeine and morphine (prior to a determination on the “other substance”), the reference to the receipt and verification of the RX profile “for the other substance,” and the conclusion in a separate entry that the “other substance” was negative, that the MRO examined the RX profile only for the other substance. It may also be inferred, therefore, that the MRO did not investigate whether the codeine and morphine positives in the specimen could have been due to the ingestion and metabolizing of Lortab or, as it is referred to on the RX profile, “HYDROCOD/APAP TAB.” See Ex. R-1, attached to the Transcript of the final hearing. The Return to Work Agreement The next day, December 6, 2013, Ms. Green interrupted a stay at a hospital for the illness she had had since mid-November in order to meet outside the hospital with an ECSD Administrator and her Union Representative. The meeting led to the execution of a Return to Work Agreement signed by Ms. Green, the ECSD Administrator, and Ms. Green’s Union Representative. The title of the agreement contains the following: “FIRST TIME POSITIVE DRUG/ALCOHOL SCREEN.” See Pet’r’s Ex. A. The body of the agreement contains the following: I, Terry Green, in exchange for my continued employment with the School District of Escambia County, Florida, and consistent with the provisions of Article XI.3 - Discipline Involving Drug or Alcohol Abuse or Dependency, Section B, hereby acknowledge that I have received a “First Time” positive drug/alcohol test result . . . . I am required to undergo a Substance Abuse Professional (SAP) evaluation and participate in the SAP recommended drug/alcohol abuse program at my expense with a goal of returning to full employment upon my successful completion of the prescribed rehabilitation regimen. Id. It is apparent that prior to November 25, 2013, Ms. Green had not had a record of any drug or alcohol offenses while in the employ of ESCD. The Return to Work Agreement acknowledges Ms. Green’s understanding that she “had the benefit of competent legal counsel and/or Association representation [as shown by the signature on the agreement of a Union/Legal Representative] . . . .” Pet’r’s Ex. A. It also acknowledges Ms. Green’s entry into the agreement “voluntarily and without duress or coercion of any kind and with full understanding of [her] rights and any waiver thereof.” Id. Nonetheless, at hearing Ms. Green claimed that she signed the Return to Work Agreement in reliance on her Union Representative’s advice without fully understanding the agreement’s implications. It was not until she met with an attorney provided to her by the Union who told her that she “had signed away [her] rights,” Hr’g Tr. 91, that she fully realized its significance. Signing it was an act she would not have committed, she asserted at hearing, even if it meant losing her job, had she thought it affected her right to challenge the positive drug/alcohol test. ECSD Action On December 5, 2013, ECSD notified Ms. Green that she had been placed on leave with pay. Section IX.6(b)(6) of the Master Contract between the School District of Escambia County, Florida and the Union of Escambia Education Staff Professionals, FEA, NEA, AFT (the “Master Contract”)3/ states as follows: Upon receipt of a positive test result in a first offense drug or alcohol screening, the employee may be administratively reassigned to her/his home pending appropriate due process procedures. The employee shall be recommended for suspension without pay until she/he completes a District and Union approved Substance Abuse Professional (SAP) evaluation and the drug/alcohol dependence or abuse rehabilitation program at the employees’ expense as recommended by the SAP. (The employee may utilize the District Health Care Program to the extent specified for the rehabilitation program in the DHCP.) Pet’r’s Ex. D, at 8 (page 35 of the Master Contract). Consistent with the section of the Master Contract quoted above, the superintendent of the ECSD recommended that Ms. Green be placed on suspension without pay until completion of an evaluation by the SAP and any rehabilitation program recommended by the SAP. On December 17, 2013, the School Board approved the superintendent’s recommendation, and Ms. Green was suspended without pay beginning December 18, 2013. Ms. Green’s subsequent request to use sick leave beginning December 18, 2013, was denied by ECSD. Ms. Green’s Petition On January 14, 2014, Ms. Green, through counsel provided by the Union, submitted a Petition for Hearing to the ECSD. The petition requests that Ms. Green be allowed to use sick leave after December 18, 2013, the date the School Board placed her on leave without pay. The Petition asserts that there are no disputed issues of material fact. Facts cited in the petition include Ms. Green’s employment as a school bus driver with ECSD, her initial placement on leave with pay while a “reasonable suspicion” drug test was conducted, her entry into the Return to Work Agreement, and the School Board’s subsequent placement of Ms. Green on leave without pay effective December 18, 2013. The Petition does not definitively admit that Ms. Green is a substance abuser. Rather, it asserts that she “is unable to perform her duties as a bus driver while she is evaluated and receiving rehabilitation for substance abuse, which is a sickness.” Petition for Hearing, at 2, ¶ 9. The Petition, therefore, depends on the evaluation of the SAP and a determination that Ms. Green is in need of rehabilitation for substance abuse. If Ms. Green were evaluated by the SAP and determined not to be in need of rehabilitation for substance abuse, there would be no basis for the petition or the relief it seeks. Ms. Green’s Need for Rehabilitation for Substance Abuse At the hearing, Ms. Green’s mother, Henrietta Moye, was asked the following question by Ms. Green: “Have you ever witnessed me being, in the last two years or almost two years being here, under the influence of any type of drug to impair or any type of alcoholic beverage to impair me?” Ms. Moye answered, “No.” Hr’g Tr. 76. Ms. Moye, moreover, is not aware of any time in her life that Ms. Green has abused any type of medication or consumed alcohol to the point of intoxication. At the hearing, employees of ECSD did not contend that Ms. Green needs rehabilitation for substance abuse. Nor has ECSD expressed its position based on Ms. Green’s relationship to substance abuse. Rather, it bases its position solely on procedures dictated by a single, first-time, drug report positive for opiates and the Return to Work Agreement. The record is silent as to the outcome of an evaluation by the SAP or whether such an evaluation has ever been conducted. Sick Leave Whether Ms. Green is in need of rehabilitation for substance abuse or is a person free of substance abuse, no evidence was produced at hearing that substance abuse is a sickness that would entitle her to sick leave. Likewise, no statute, rule, regulation, or any applicable law was produced by Ms. Green that would entitle her to sick leave for substance abuse while she was placed on leave without pay pending an evaluation by the SAP.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board continue to deny Ms. Green’s request to use sick leave during her suspension without pay that the School Board imposed effective December 18, 2013, and enter a final order that denies the relief sought in Ms. Green’s petition. DONE AND ENTERED this 2nd day of May, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 2nd day of May, 2014.
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
Findings Of Fact The Respondent holds Florida teaching certificate 595057, covering the area of Speech and Language Impaired, which is valid through June 30, 1993. At all times pertinent to the allegations in this case, the Respondent was employed as a Speech Therapist at Castle Hill Elementary School (hereinafter "Castle Hill") in the Broward County School District. At all times pertinent hereto, Dr. Valoria Latson was the principal of Castle Hill, Ronald Wright was the Director of Professional Standards for the Broward County School Board, Mark Seigle was the Associate Superintendent of the Broward County School Board, and Virgil Morgan was the Superintendent of the Broward County School Board. In the Spring of 1990, the Respondent began to exhibit unusual and bizarre behavior both in and out of school. Such behavior included: Claiming that students in her class and children around her neighborhood were watching her; Claiming that students and teachers were talking about her personal life; Claiming that her classroom, apartment, phone and car contained covert listening devices; Claiming that unknown persons were breaking into her car and home on a frequent basis; Calling police on numerous occasions requesting them to investigate and/or fingerprint her apartment and car because they were tampered with; Claiming that she was being followed by friends, staff members, church members and the State of Florida; Claiming that her lesson plans had been stolen and copied; Claiming that her lesson plans were being photographed by a camera in the light bulbs or air conditioner in her classroom; Claiming that staff members were listening in on her class through the school intercom. The accusations and claims made by the Respondent were the product of delusional thought processing and paranoia. Dr. Latson became concerned about Respondent's bizarre behavior, which she described as exhibiting overt signs of paranoia. In July of 1990 Dr. Latson referred Respondent to the Employee Assistance Program ("EAP"). This referral did not benefit the Respondent. With the onset of the 1990-91 school year, Dr. Latson remained concerned about Respondent's continued bizarre behavior. On September 10, 1990, Dr. Latson advised Mr. Wright of her concerns about Respondent and about the referral to the EAP. On September 21, 1990, Dr. Latson advised Mr. Wright that she had not observed any significant changes or improvements in the Respondent. Mr. Wright recommended that Dr. Latson have her Assistant, Ms. Weissberg, observe the Respondent at least 2 to 5 minutes a day, 3 to 4 days a week, to be certain that nothing was going on in that classroom that should not be. On or about October 26, 1990, Dr. Valoria Latson had a conference with the Respondent and the Assistant Principal, Ms. Weissberg, at which time the Respondent indicated that she was "tired of this shit" and would be giving them her letter of resignation. The Respondent failed to bring in her letter of resignation. The Respondent had also informed Ms. Laura Rogers, Program Specialist with the Exceptional Student Education Department for the central area, that she was going to resign. After further observation of Respondent's behavior, it was determined that a formal psychological or psychiatric evaluation of the Respondent would be appropriate. On November 5, 1990, Dr. Latson met with Mr. Seigle and Ms. Lucy Thomas, a friend of the Respondent, regarding the Respondent's unusual behavior. Dr. Latson was concerned about the Respondent's ability to function as a classroom teacher and her ability to work with children and adults in a school setting. Dr. Latson requested that Mr. Seigle make arrangements for a psychological or psychiatric evaluation of the Respondent. She also requested that Respondent be taken out of the classroom until her emotional and mental stability was assessed. Dr. Latson believed that a psychological evaluation of the Respondent was necessary because of her bizarre behavior and her unusual accusations. Dr. Latson believed that the Respondent's effectiveness in the classroom had been reduced, and that it was in the best interests of the students for Respondent to be evaluated. Dr. Benjamin Barnea, a physician trained in Neurology and Psychiatry, conducted an initial evaluation of the Respondent on November 8, 1990. Dr. Barnea summarized his findings in a letter to Mr. Seigle on November 12, 1990. Dr. Barnea's impression of Respondent's condition was that of schizophreniform disorder. His recommendation provided, in pertinent part, as follows: The patient presently shows overt delusional thought processing that prevents her from functioning and interacting with her peers and students. I would not recommend that she be returned to her regular employment until she seeks treatment and is stabilized. Since she has never had a formal workup for her disturbed thought processing, I would recommend that she receive an MRI of the brain and an EEG for completeness sake to rule out possible underlying pathology that might be amenable to treatment. In addition, the patient will need to be started on anti- psychotic medications and I have broached this subject with her but she shows no insight into her illness and does not show willingness to participate in treatment. The prognosis is unfortunately guarded, if her workup is totally negative then the long- term picture is one of probable continued mental illness. In this initial evaluation of the Respondent, the Respondent indicated to Dr. Barnea that she believed her phone conversations at school were being monitored, that her lesson plans were being photographed from the light bulb in her room, that someone at the school knows whose behind this and is doing it, that she is being followed wherever she goes by the Methodist Church that she belongs to, and that her students who are in the age range of five (5) to six (6) years old are aware of who she is dating and sleeping with because, as the Respondent explained, her boyfriend has a pet snake and the students were making hissing sounds in class. During a follow-up evaluation on December 3, 1990, with Dr. Barnea, Respondent again showed evidence of a "fixed delusional system involving people getting into her apartment and moving things around in collusion with her church and her school". Dr. Barnea noted that this was continual evidence of an underlying delusional thought processing that was ongoing with the Respondent, and not merely a transit thing that happened on one particular day. During a follow-up evaluation on December 13, 1990, Dr. Barnea again attempted to convince the Respondent to consider treatment with anti-psychotic medication. Dr. Barnea noted that Respondent refused his advice and was of the opinion that she had no insight that she has a mental problem. Respondent underwent the physical tests recommended by Dr. Barnea. These results of these tests revealed no physical abnormalities. Following his evaluation of Respondent on January 30, 1991, Dr. Barnea noted that Respondent remained delusional with no insight into her illness and that she continued to refuse treatment in the form of anti-psychotic medication for the underlying thought disorder. Dr. Barnea again saw the Respondent briefly on February 4, 1991. It was still his opinion that Respondent was unable to function as a classroom teacher or in an educational setting as long as the underlying delusional thought processing was present. With the exception of anti-psychotic medication, there is no other treatment for a delusional thought disorder. There was no evidence in this proceeding that Respondent's condition had improved since her last evaluation with Dr. Barnea. There was no evidence that she has sought or received treatment or that she was on any type of medication that would benefit her. Without proper treatment, Respondent's delusional thought processing makes her behavior unpredictable. Her behavior could range from being totally docile to physically violent. Although there was no evidence that she had become physically violent, Dr. Barnea was of the opinion that persons suffering from Respondent's mental condition have the potential to become violent because of the underlying delusional thought processing. Respondent should not be placed in a position of responsibility and is incapable of teaching. On or about April 23, 1991, the Respondent was suspended without pay by the Broward County School Board and dismissal proceedings were initiated. Pursuant to the petition for formal proceedings, filed by the Broward County Superintendent of Schools, Virgil Morgan, the Respondent requested a formal hearing before the Division of Administrative Hearings (DOAH) and the case was assigned DOAH Case No. 91-2839. The formal hearing conducted in that case was heard before William Dorsey on September 4, 1991. On November 7, 1991, a Recommended Order was issued by the Hearing Officer in DOAH Case No. 91-2839 that concluded, in pertinent part, that Respondent's ". . . thought disorder places any children who would be assigned to her class at unreasonable risk of harm which could result from unpredictable reactions by Ms. Wynne to those students. She is currently not competent to perform her duties as a teacher." The Recommended Order recommended that Respondent's contract with the Broward County School Board be terminated due to her mental incompetency. On January 17, 1992, the Broward County School Board entered a Final Order which adopted the Recommended Order in its entirety, including the Findings of Fact, Conclusions of Law, and Recommendation, and the school board thereby terminated the Respondent from her employment effective April 23, 1991. Based on the School Board's position that the Respondent was mentally incompetent and unfit to hold a teaching certificate, Mr. Wright reported the allegations against the Respondent to Professional Practices Services ("PPS) of the Department of Education. The Respondent is incompetent to perform her duties as an employee of the public school system based upon her mental incompetency. Consequently, her effectiveness as an employee of the school board has been lost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order which finds Respondent guilty of violating Sections 231.28(l)(b) and 231.28(l)(f), Florida Statutes, and which bars the Respondent from reapplying for a new teaching certificate for a period of three (3) years. It is FURTHER RECOMMENDED that prior to recertifying Respondent as a teacher in the State of Florida, the Education Practices Commission require Respondent to submit documentation from appropriate mental health professionals that establishes that Respondent does not represent a threat to the safety or well-being of students under her supervision or care, that she is receiving any recommended treatment, and that she is competent to perform her educational and administrative duties in an acceptable and satisfactory manner. DONE AND ENTERED this 17th day of December, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3376 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraph 1 are unnecessary as findings of fact, but are incorporated in the Preliminary Statement section of the Recommended Order. The proposed findings of fact in paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 34, 35, 41, 43, 44, 45, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, and 74 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 42, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 71, and 75 are subordinate to the findings made. The post-hearing submittal filed by Respondent contained no proposed findings of fact. COPIES FURNISHED: Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Danita Wynne, pro se 9277 Dunwoody Lane Indianapolis, Indiana 46229 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues to be resolved in these consolidated cases concern whether the licenses of Myrtle Grove, Inc. and M.H. Mikhchi should be subject to administrative fines for alleged failure to timely correct seven class III deficiencies at Three Oak Manor (hereinafter Respondent) and, if so, in what amount.
Findings Of Fact The Petitioner is the state agency responsible for the licensing and regulation of ALFs in Florida. The Respondent is licensed to operate Three Oak Manor as an ALF in Pensacola, Florida. Ms. Jackie Klug was called as a witness for the Petitioner. She is a public health nutrition consultant and a registered dietitian. Her duties included surveying for both state and federal regulation for ALF's, nursing homes, hospitals, and any other health care facility licensed by the state of Florida. Ms. Klug has been in this position for three years. She is familiar with the surveys at issue in these proceedings. "Tag deficiencies" are an agency manual or policy means of indexing rule violations. Ms. Klug participated in a survey of August 11, 1998. She observed the Respondent to have failed to have menus reviewed by a registered or licensed dietitian annually. Ms. Klug testified she cited "Tag A-807" a rule violation pertaining to the appropriate amounts of food being served to the residents on a daily basis. Ms. Klug observed that the Respondent did not provide the residents with the required daily servings of food. Ms. Klug cited "Tag A-810" for failure to record menu substitutions before or at the time a meal is served. This was based on her observations of what occurred on August 11, 1998. Ms. Klug established that these rule violations are class III deficiencies. Ms. Klug observed deficiencies during the survey of October 1, 1998, as follows: "Tag A-200" for non-compliance with requirements for posting for public view the last Agency for Health Care inspection. "Tag A-205" failure to maintain records, including major incidents. "Tag A-208" failure to report a fire in the facility. "Tag A-804" pertaining to the provision of therapeutic diets according to a written order by the health care provider, as ordered. Ms. Klug observed other deficiencies during the survey of January 21, 1999, as follows: "Tag A-515" failure to maintain minimum staffing levels. "Tag A-804" pertaining to the provision of therapeutic diets according to a written order by the health care provider, as ordered. "Tag A-810" failure to record substitutions before or when the meal is served. These deficiencies are repeat citations from the prior surveys of August 11, 1998 and October 1, 1998. Ms. Klug identified the Petitioner's Composite Exhibit 1, item 6 as a copy of the license for Myrtle Grove, Inc., d/b/a Three Oak Manor with an effective date of August 5, 1998, and with an expiration date of August 4, 2000. Myrtle Grove, Inc., d/b/a Three Oak Manor is the licensee. Ms. Paula Faulkner was called as a witness for the Petitioner. She is a Health Facility Evaluator III. Her duties included investigation of consumer complaints as well as routine surveys. Ms. Faulkner is familiar with the facility at issue. She has had numerous opportunities to survey this facility. Ms. Faulkner participated in the survey of October 1, 1998. Based on her observations at this survey she found a failure to meet minimum staffing requirements in the facility. Ms. Faulkner established that Ms. Donna Danley of the agency found this deficiency still uncorrected at the January 20 through 21, 2000 survey. Ms. Faulkner had no further involvement in this case, other than her participation in the team decision to cite these violations as a class III deficiency. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 1 as a copy of the summary statement of deficiencies for the re-visit survey of January 21, 1999. Based on her observations, the Respondent was out of compliance with state regulation "Tag A-006" pertaining to an un-stageable pressure sore. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 2 as an accurate representation of deficiencies still existing during a re-visit that was made on January 21, 1999, and a re-visit of March 8, 1999. Ms. Klug participated in these surveys. Based on her observations she found the Respondent was still out of compliance due to the fact that "resident No. 7" had a stage-two pressure ulcer which had been identified and was being treated since February 16, 1999. Ms. Klug observed other deficiencies during the re- visit survey of March 8, 1999, which were previously cited on January 21, 1999, as follows: Failure to have a completed evaluation for residents; the nurse on duty failing to have a current license in the state of Florida; failure to maintain documentation on file with regard to the qualifications of individuals performing limited nursing services. In fact, the nurse had applied for Florida licensure but had not yet received it. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 4 as a copy of the Respondent's limited nursing license for Three Oak Manor. The license has an effective date of August 5, 1998, and an expiration date of August 4, 2000. Mr. M.H. Mikhchi is the licensee.
Recommendation Having considered the foregoing Finding of Facts, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Petitioner, Agency for Health Care Administration, enter a final order imposing fines totaling $2,400.00 against the Respondent, in the aggregate, for failure to timely correct seven class III deficiencies found during the above-referenced surveys, related to both administrative complaints. DONE AND ENTERED this 5th day of October, 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 5th day of October, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Building 3, Suite 3408D Tallahassee, Florida 32308 M. H. Mikhchi, Owner/President Myrtle Grove, Inc., 1012 North 72nd Street Pensacola, Florida 32506 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Petitioner has grounds to terminate Respondent’s professional service contract as a classroom teacher, as alleged in the Administrative Complaint dated February 28, 2003.
Findings Of Fact The School Board of Monroe County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Monroe County, Florida, pursuant to Section 4(b) of Article IX of the Florida Constitution. The Superintendent of Schools (Superintendent) is authorized by law to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in the Florida Education Code at Chapter 1012. Respondent was hired by the School District of Monroe County, Florida, on or about November 11, 1986. At all times pertinent to this action, Respondent was employed pursuant to a professional service contract as a teacher at MMS. She taught eighth grade English to students who were generally 13 to 14 years of age. Respondent's formal job evaluations have been satisfactory or better. On October 26, 1989, Respondent committed the criminal offense of DUI by driving or being in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol to the extent that her normal faculties were impaired. Respondent was arrested and charged with committing the criminal offense of DUI. She submitted to a breath alcohol test, which indicated that her breath alcohol level was .19 grams of alcohol per 210 liters of breath. Pursuant to Section 316.193(1), Florida Statutes (1989), a person is guilty of driving under the influence if that person was in control of a car and had a breath-level alcohol reading of .10 grams or more. On December 11, 1989, Respondent entered a plea of guilty to the criminal offense of DUI with regard to her arrest on October 26, 1989. The County Court of Monroe County, Florida (the Court), adjudicated Respondent guilty of DUI, sentenced her to six months' probation, and suspended her Florida driving privileges for six months. Additionally, Respondent was required to pay a $250.00 fine and $222.50 in court costs. Her sentence also required her to perform 50 hours of community service and to complete DUI School. On October 14, 1992, Respondent committed the criminal offense of DUI by driving or being in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol to the extent that her normal faculties were impaired. Respondent was arrested and charged with the criminal offense of DUI. Respondent submitted to two breath alcohol tests, which indicated that her breath alcohol level was .261 and .256 grams of alcohol per 210 liters of breath. Pursuant to Section 316.193(1), Florida Statutes (1992), a person is guilty of driving under the influence if that person was in control of a car and had a breath-level alcohol reading of .10 grams or more. On January 25, 1993, Respondent entered a plea of nolo contendere to DUI with regard to her arrest on October 14, 1992. The Court adjudicated Respondent guilty of DUI, sentenced her to ten days in jail, 12 months' probation, and suspended her Florida driving privileges for five years. She was also required to pay fines and court costs in the amount of $1,266.00, to perform 50 hours of community service, and to complete the Multiple DUI Offender Program. On August 1, 1994, the Florida Commissioner of Education (COE) filed an Administrative Complaint against Respondent, which alleged that her Florida teaching certificate should be disciplined based on her DUI convictions in 1989 and 1992. The Administrative Complaint alleged that Respondent was guilty of gross immorality and/or an act involving moral turpitude. On August 3, 1994, Respondent entered into a Settlement Agreement with the COE whereby she elected not to contest the allegations set forth in the Administrative Complaint. Based on the Settlement Agreement between Respondent and the COE, the EPC entered a Final Order on September 22, 1994, which approved the terms of the Settlement Agreement executed by Respondent on August 3, 1994. Pursuant to the terms of the Final Order, the EPC issued to Respondent a written reprimand, dated September 23, 1994, which stated, in pertinent part, that: [A]s a teacher you are required to exercise a measure of leadership beyond reproach. By your actions [i.e., 1989 and 1992 DUI convictions], you have lessened the reputation of all who practice our profession. Your actions cannot be condoned by the profession nor by the public who employ us. The Education Practices Commission sincerely hopes it is your intention to never allow this situation to occur again or indeed, to violate any professional obligation in fulfilling your responsibility as an educator. To violate the standards of the profession will surely result in further action being taken against you. A copy of the written reprimand was placed in Respondent's state certification file and a copy was sent to the School Board for placement in Respondent's personnel file. In addition to the reprimand, the Final Order placed Respondent’s teaching certificate on probation for a period of two years and ordered her to: (1) submit to an examination and consultation with a licensed substance abuse counselor; undergo a program of substance abuse counseling and treatment until such time as she was released from such treatment by a licensed substance abuse counselor; and submit proof of successful completion of the substance abuse counseling program to the EPC. Respondent did not comply with these conditions of her probation. Respondent did not submit to an examination and consultation with a licensed substance abuse counselor who was mutually acceptable to the EPC and was, consequently, unable to tender proof to the EPC that she had successfully completed such a substance abuse counseling program. The EPC notified Respondent of her failure to comply with the settlement and final order by letter dated September 10, 1997. The EPC closed her probation file with the notation that she had not satisfied the conditions of probation. There was no evidence that further disciplinary action was taken against Respondent for her failure to successfully complete the terms of her probation. On January 17, 2003, Respondent committed the criminal offense of DUI by driving or being in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol to the extent that her normal faculties were impaired. Respondent submitted to two breath alcohol tests, which indicated that her breath alcohol level was .207 and .206 grams of alcohol per 210 liters of breath. Pursuant to Section 316.193(1) a person is guilty of driving under the influence if that person was in control of a car and had a breath-level alcohol reading of .08 grams or more. Respondent was aware that it is unlawful for an individual to drive or be in actual physical control of a vehicle while under the influence of alcohol when affected to the extent that the individual’s normal faculties are impaired and/or while having a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath. On January 17, 2003, Respondent was arrested and charged with the criminal offense of DUI. On May 12, 2003, Respondent entered a plea of nolo contendere to the criminal offense of DUI with regard to her arrest on January 17, 2003. The court adjudicated Respondent guilty of that criminal offense and sentenced her to serve 30 days in jail, or in the alternative, to serve 30 days in an approved in-patient substance abuse rehabilitation facility, followed by 12 months of probation. She was also required to pay fines and court costs in the amount of $2,393.00, to perform 150 hours of community service, to complete an Advanced DUI offender course, and to refrain from using alcohol during probation. Respondent’s Florida driving privileges were suspended for a period of ten years. Respondent chose to serve her time in jail in the Monroe County Jail located in Key West. She did not want to attend the state-sponsored rehabilitation program because it was a 61-day program and she believed the 30-day private rehabilitation program she wanted was too expensive. Respondent's arrest for DUI on January 17, 2003, and the fact she had been convicted of DUI on two prior occasions became common knowledge and a topic of conversation in Marathon, which is a relatively small community. Students at MMS and MHS were aware of these facts about Respondent, as were parents of students, Respondent's colleagues, and the community in general. On or about January 28, 2003, the Key West Citizen, a local newspaper in the Florida Keys, reported the news of Respondent’s January 17, 2003 arrest for DUI and identified her as a teacher at MHS (sic). The Monroe County Sheriff’s Office web site reported Respondent’s DUI arrest, the fact that she was a teacher at MMS, and a copy of her booking photograph. This information was readily available via the Internet. Students at MMS displayed Respondent’s DUI booking photograph and information as wallpaper on the computers in the school library. Respondent's acts are wholly inconsistent with Petitioner's efforts to teach students to say no to drugs and alcohol and to the efforts of such school-sponsored groups as Students Against Drunk Driving. During the school year 2002/2003, Dr. Colvard was principal of MMS and MHS. At the time of the final hearing, he was retired. Dr. Colvard received a letter from one parent and an e-mail from another condemning Respondent's behavior. Respondent's arrest for DUI on January 17, 2003, and the fact that it became common knowledge among her students and in the community that she had two prior DUI convictions, were of such notoriety to impair both her effectiveness to the school system and her service in the community.1 Mr. Lannon has been an educator in the Monroe County School system since 1973 and became Superintendent in 1996. Mr. Lannon recommended that the School Board terminate Respondent's employment because Respondent had, by her misconduct, lost credibility and effectiveness with students, parents, and the community. Subsequent to Respondent's arrest on January 17, 2003, a beginning teacher was arrested for DUI. That teacher was disciplined with a reprimand. Mr. Lannon testified, credibly, that the beginning teacher's case was appropriately distinguished from Respondent's because that case did not generate the notoriety that Respondent's generated and because that was the first offense for the beginning teacher. At all times pertinent to these proceedings, Respondent was aware of the Code of Ethics/ Principles of Professional Conduct and had been provided with and signed for copies of those documents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that sustains the suspension of Respondent’s employment without pay and terminates her professional service contract of employment as a classroom teacher effective March 11, 2003. DONE AND ENTERED this 3rd day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of October, 2003.
