The Issue Whether Petitioner, Bans N. Persaud, should be awarded a passing grade on the "Financial Accounting" part of the Certified Public Accounting examination given on May 7-8, 1997.
Findings Of Fact Petitioner, Bans N. Persaud, took the Certified Public Accountant Exam in May of 1997. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated August 4, 1997, that he had earned a score of 75.00 which was a passing grade on three parts of the exam: Audit, Accounting & Reporting, and Law Exam. The report informed him that, "CREDIT ON PASSED PARTS HAS BEEN GRANTED." The report also informed Mr. Persaud that he had failed the Financial Accounting Part of the exam. On that part, he received a score of 62.00 when a minimum passing score was 75. Petitioner, "very certain that [he] passed this examination," filed a letter of appeal with the Department, treated by the Department as request for a formal administrative hearing. During the course of pre-hearing procedures, Mr. Persaud requested that he be allowed to audit the grading of the examination. The Department responded by pointing to Section 455.217(2), Florida Statutes, which states in pertinent part, The board . . . shall make available an examination review procedure for applicants . . . . Unless prohibited or limited by rules implementing security or access guidelines of national examinations, the applicant is entitled to review his examination questions, answers, papers, grades, and grading key . . . and the following language of Rule 61-11.012(6), Florida Administrative Code: In order to preserve the security and integrity of the examination, such candidate shall be permitted to review only the questions and answers missed on the examination. Furthermore, the Department pointed to the following excerpt of Section 119.07(3)(a), a provision of the public records law, Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt from the provisions of subsection (1) and s.24(a), Art. I of the State Constitution [provisions which require disclosure of public record]. In light of the response, the ruling was made at hearing that the Department was not required to allow Petitioner to conduct the requested audit. In fact, it was determined that the requested audit was a prohibited act under the force of law through the operation of Rule 61-11.012(6), Florida Administrative Code. Mr. Persaud claimed that without an audit, he would not be able to prove that he had, in fact, passed the examination. The examination was developed by the American Institute of Certified Public Accountants, a national organization of certified public accountants whose function it is to develop, prepare and grade the "in-force CPA exam." (Tr. 74). As such, the exam is considered a "national examination," id., developed by a national organization. About such exams, the following is stated in the rules of the Department of Business and Professional Regulation, Bureau of Testing: If the examination being challenged is an examination developed by or for a national board, council, association or society, (hereinafter referred to as national organization) the Department shall accept the development and grading of such examination without modification. Rule 61-11.012(1), Florida Administrative Code. The examination consisted of six questions, two of which (Questions five and six) were essays. Mr. Persaud received 36 points out of the 60 points available for question one, 2.15 out of five points available for question two, 4.38 out of five available for question three, 3.68 out of five for question four, 8.5 out of ten for question five, and 5.5 out of ten for question six, for a total of 62 points. Mr. Persaud pointed to his background as a person of Indian descent (that is, from the subcontinent of India) who immigrated from Georgetown, Guyana, to the United States where, in 1984, he received U.S. citizenship. Mr. Persaud felt that lack of points on the essay for English composition, grammar and expression were due to prejudice and incorrect because of the excellent state of his English. During the hearing, it was obvious that Mr. Persaud's spoken English, although at times difficult to understand because of pronunciation, is otherwise of high quality. Whatever the state of his written English, however, had he received all points available for the essay questions he still would have failed the Finance and Accounting part of the exam with a score of 68 when a passing score of 75 was necessary. It was therefore incumbent on Mr. Persaud to show more than just that improper grading of English (which he did not show) in the essay portion of the exam led to the failing grade. Mr. Persaud made no attempt to do so. To the contrary, Mr. Persaud did not show that the examination was faulty, or that it was arbitrarily worded, or that the answers to challenged questions were capriciously graded or that he was arbitrarily denied credit through a grading process of the challenged questions devoid of logic or reason. In fact, Mr. Persaud does not appear to have ever identified the questions among those that he missed that were under challenge. He simply insisted that he had passed the exam. Rather than challenge specific questions for which he was not given credit or the grading of the answers to those questions, Mr. Persaud took a different tack. He testified that immediately after passing parts 3 and 4 of the CMA in 1996, he was suddenly bombarded on a daily basis by the noise of planes from the international Airport who were assisted in some way by a Village Inn not far from his house. When he complained to the authorities, they stated that they did not fly anywhere near his house. He complained of other noises and pressures to which he was subject while trying to study and identified them as "[p]lanes at four o'clock," (Tr. 48) and a "12 part air conditioner." Id. He also complained that his computer had been sabotaged and produced documents he had composed where the word "and" appeared in a sentence when his choice, and the more appropriate word, would have been "but." (Tr. 55). After this line of the challenge to the exam had been exhausted at hearing, Mr. Persaud was asked to identify the questions among those he missed that he now challenges as well as any of their answers. Aside from testimony about written English on the Essay questions, Mr. Persaud made no reference to individual questions. He chose to maintain his position that he had passed the test.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying Petitioner's challenge to the grade he received on the Financial Accounting part of the CPA Exam administered in May of 1997. DONE AND ORDERED this 16th day of September, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 16th day of September, 1998. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Bans N. Persaud 310 Ninety-Second Avenue North St. Petersburg, Florida 33702 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Martha Willis, Executive Director Division of Certified Public Accounting Department of Business and Professional Regulation 4001 Northwest 43rd Street, Suite 16 Gainesville, Florida 32606
The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Professional Regulation's Division of Real Estate and the Florida Real Estate Commission were the state agencies in Florida responsible for the licensing of real estate professionals and the regulation of the real estate profession in this state. Respondent was licensed as a real estate salesperson under license number SL 0566467. Mr. Brennan was licensed in Florida as a salesperson in 1990, and his initial license expired on March 31, 1992. It was renewed on time and due to expire a second time on March 31, 1994. Consistent with Florida Real Estate Commission requirements, a real estate salesperson is required to complete no less than 14 hours of continuing professional education in the two years prior to license renewal. Of these, 11 hours of course work can be in a specialized area, but at least 3 of the 14 hours must consist of core law, legal information designed to update the salesperson on the changes to Commission rules and policies and changes in the law as it relates to the practice of real estate in the interim since the prior renewal. Licensees periodically are put on notice of the requirement for continuing education and what it must entail, and with or before application for renewal, must certify as to the taking, testing and passing of the required courses. If a licensee certified compliance with the continuing education requirement but, in fact, was not in compliance, that individual would be in violation of the Commission rules even if the required fees were paid. On January 27, 1994, Respondent applied for renewal of his salesperson's license which was due to expire on March 31, 1994. Along with his application for renewal, Respondent submitted his check for $68.50 made payable to the Department, and affirmed he had completed the required 14 hours of continuing education for the license period beginning April 1, 1994. The license was renewed. By letter dated June 15, 1995, Respondent was notified by Barbara Rohloff, a records supervisor for the Department, that his 1994 renewal application had been selected for audit. As a result of that audit it was determined that Respondent had completed the required 11 hours of specialty education and an additional 3 hours in "Agency: Choices, Challenges and Opportunities," also a specialty course but not approved for credit toward the required "core law" portion of the continuing education requirements. Therefore, though Respondent had completed 14 hours of continuing education as required, that 14 hours did not include the required 3 hours of core law. The 11 hours of specialty education Respondent took was course number 100 of the Realtors Institute Course and was approved by the Florida Association of Realtors. The 3 hour course was taken through the Coldwell Banker School of Real Estate in Sarasota in November 1993, and was also an approved course, but it did not meet the requirements for the 3 hour core law course. As a result of this discovery, a determination was made to charge Respondent with misconduct as alleged in the Administrative Complaint. Respondent contends he took the above-described courses in the misinformed opinion that by doing so he was meeting the Commission requirements. When he was first licensed, he was advised he must take and pass 14 hours of continuing education every two years. The 11 hour course was taken in 1991, in advance of the renewal period, upon the representation of the Century 21 instructor with whom the course was taken that was acceptable. When Respondent went to take that 11 hour course, along with his wife, also licensed as a real estate salesperson, a representative of the Sarasota Board of Realtors advised them that the 11 hour course was acceptable toward the continuing education requirements and that they would need an additional 3 hours. When the real estate brokerage with which the Brennans had placed their licenses was sold to another brokerage, Coldwell Banker, they moved their licences to the new brokerage and went to work with that firm. Coldwell Banker offered the 3 hour course which Respondent took and which has been determined not to be acceptable, and Respondent claims the representative of Coldwell Banker advised him, wrongly, it would appear, that the 3 hour course in issue would meet the Commission's requirements. Though this allegation is self- serving to the Respondent, it was not contradicted and is accepted. Respondent denies any intent to mislead or misrepresent. He gained no advantage by taking the instant 3 hour course over the required course. He saved no time or money, it would appear, and there appears to be no reason for him to have intentionally taken the wrong course or to mislead the Commission. Through all his post-audit communication with the Commission, he relates, he was never advised, in a way he understood, just what he should have done in place of what he did, until the day of the hearing when it was explained to him by Petitioner's counsel. Respondent now admits that he did not have the required hours in the correct course, but adamantly asserts he did not, at the time, know or understand what was the problem. That would appear to be the case, and it is so found. The Petitioner presented no evidence to demonstrate an intent to mislead or to misrepresent by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against the Respondent, Edward John Brennan. DONE and ENTERED this 3rd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1996. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32803-1900 Edward John Brennan 4114 Pro Am Avenue Bradenton, Florida 34203 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Petitioner Samuel J. Pomeranz holds a "Rank 2" certificate issued by the Florida Department of Education. Petitioner Samuel J. Pomeranz obtained an advanced certificate in Educational Administration and Supervision in June 1970, from City College of New York. He obtained a Bachelor of Arts Degree in 1957 and a Master of Arts Degree in Education in 1959. Petitioner was licensed as a teacher in the State of New York and served as head of Curriculum Development in a senior high school in New York, New York. At the time of the hearing, he had not taught school in the State of Florida. Petitioner applied for a "Rank 1A" teaching certificate from the Respondent Department of Education Certification Section, but certification as "Rank 1A" was denied. Florida Administrative Code Rule 6A-4.049(1)(b) 1. requires that an applicant hold a "sixth year postmaster's level degree." Applicant received a certificate rather than a degree at the conclusion of his postmaster's work.
Recommendation Affirm the Respondent's action in denying Petitioner's request for "Rank 1A" certificate. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: William L. Boyd, Esquire Post Office Box 5617 Tallahassee, Florida 32303 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. The Florida Board Examination is also known as the FLEX examination. In an effort to meet that prerequisite, the Petitioner has already taken the FLEX examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. The issue of whether Section 458.311(2), Florida Statutes, had the effect of limiting the number of times the Petitioner could take the FLEX exam was first considered by the Board of Medicine in 1992. In response to an earlier application by the Petitioner, by letter dated March 11, 1992, the Petitioner was advised by Board staff that Section 458.311(2), Florida Statutes, appeared to apply to her application and that the matter would be considered by the Board at the next meeting of the Board. Thereafter, by letter dated May 7, 1992, Board staff advised the Petitioner that her application would be considered by the Board's Credentials Committee, and that the Petitioner was required to attend the meeting of that committee on May 27, 1992. At the May 27, 1992, meeting, the Board's Credentials Committee, following perfunctory advice of counsel, and without discussion by the committee members, voted to recommend that the Petitioner be allowed to take the FLEX exam a sixth time after 1986, even though she had previously failed the exam five times since 1986. The committee recommendation was adopted by a majority of the Board of Medicine, and the Petitioner was allowed to take the FLEX examination for a sixth time since 1986. The Petitioner failed the FLEX examination for a sixth time since 1986. The Petitioner has reapplied for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), and seeks to take the FLEX exam for a seventh time since 1986. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's pending licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examinatiion be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M-22.020(1), Florida Administrative Code, by adding to it new subsections specifically addressing the issue of how many times applicants under subsections (8) and (10) of Section 458.311, Florida Statutes, may take the licensure examination. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendments described above. For reasons unknown to the Board's Executive Director, the Board's legal counsel did not file the proposed rule amendment for adoption until March of 1993. The March 12, 1993, issue of the Florida Administrative Weekly contains notice of the Board's intention to adopt the rule amendments described above. The full text of the proposed rule is as follows: 21M-22020 Western Hemisphere Exile Requirements. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Section 6, Chapter 86-245, Laws of Florida, (codified at Subsection 458.311(8)(9)(a), Florida Statutes (1992 Supp))(1988 Supp), the following shall apply: (a) - (c) No change (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Chapter 89-266, Chapter 89-541 and Chapter 92-53, Laws of Florida, (codified at Subsection 458.311(10), Florida Statutes (1992 Supp.)(1991)), the following shall apply: (a) - (g) No change. (h) The phrase "successful completion of the licensure examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. It is the consistent practice of the Board of Medicine to apply the provisions of Section 458.311(1)(a)-(d), (4), and (5), Florida Statutes, to all applicants seeking licensure under Section 458.311(8), which last-mentioned section is also known as the "Cuban Exile Program."
Findings Of Fact Petitioner is an Instructor of Social Studies presently teaching History of Law and Law and Society at Coral Gables Senior High School in Dade County, Florida. Petitioner has been an Instructor of Social Studies at Coral Gables High School since August, 1963. Petitioner received a Bachelor of Arts degree from the University of Miami in 1963. Petitioner was awarded a Juris Doctor degree from the University of Miami College of Law in May, 1974. Prior to July 1, 1974, the Petitioner had been certified as a Rank III teacher in the elementary and secondary schools. On August 20, 1974, the Respondent issued a Rank II Teacher's Certificate to the Petitioner. The effective date of the certificate was July 1, 1974. Petitioner was certified to teach social studies in secondary schools, English in junior high school, and to teach in the junior colleges. On October 25, 1974, the Respondent issued a Rank I teacher's certificate for teaching in junior college to the Petitioner. In July and August, 1975, the Petitioner sought certification as a Rank I teacher. This request was denied by the Respondent by letter dated September 2, 1975. (See: Petitioner's Exhibit F). This action followed the denial of Rank I status. A Juris Doctor degree is the initial legal degree that is available. The Juris Doctor degree is considered the terminal professional legal degree in that no additional degrees are necessary in order to engage in the practice of law. Advanced legal degrees are available at some, but not all, law schools. These degrees are an L.L.M., or Master of Law degree, and a J.S.D. or S.J.D., or Doctor of Juridical Science degree. The J.D., or Juris Doctor degree, is of fairly recent vintage. The initial legal degree at most law schools was, until the past ten or twenty years, designated an L.L.B., or Bachelor of Law degree. The J.D. designation has become popular due to added prestige add recognition that it provides. A J.D. degree is not in any way substantively different from an L.L.B. degree. A J.D. degree is in fact a Bachelor's degree in the specialized field of law.
Findings Of Fact Dwight S. Cenac, Respondent, holds certificate No. 3639 as a Certified Public Accountant in the State of Florida. On 2 September 1977 he requested an exemption from the continuing education program required of public accountants to retain their certificate (Exhibit 2). Therein he stated he was not practicing public accounting, the exemption was granted and Respondent's registration card has been endorsed with a statement that Respondent's certificate to practice public accounting in Florida is inoperative. Following his graduation from college in 1970 Respondent worked for the accounting firm of Ernst and Ernst for two years and attained his certificate in 1973. He was employed with Blue Cross of Florida from 1973 until 1977 when he was employed by a health care provider in Puerto Rico to help set up their procedures to improve Medicare and Medicaid payments for services they provided. His understanding of the Medicare regulations and procedures acquired while working at Blue Cross, coupled with the conditions he found in Puerto Rico, led Respondent to believe that many health care providers had need for special consulting in conjunction with their financial record keeping. Health Care Management Consulting, Inc. (HCMC) was formed in 1977 with Respondent as the sole shareholder. In order to acquaint providers with the services he proposed, Respondent prepared a proposal (Exhibit 1) which was sent to health care providers. As a certified public accountant he could not do this without violating the laws and regulations proscribing solicitation by Florida practitioners. In order to overcome this potential problem, Respondent, on 2 September 1977, (by Exhibit 2), notified Petitioner that he was no longer performing public accounting. As the owner and principal operator of HCMC, Respondent does not hold himself out as a CPA, such information is not included in his letterhead or business cards, office or telephone directory or in any public place. His certificates as a Certified Public Accountant are hanging on the wall of his office, but none of his clients ever visit his office. In addition to Respondent, HCMC employs two other consultants who previously worked for Blue Cross, as well as a secretary. Neither of the other two consultants is a certified public accountant, but both perform services for clients similar to those services performed by Respondent. They, as well as Respondent, obtained the special expertise they offer to health care providers while working in the intermediary field between the government and the provider. HCMC provides specialized services not provided by public accountants such as setting up books and records for health care providers, preparing cost reports, providing assistance in setting rates and general familiarity with Medicare rules and regulations. Many of the services provided by HCMC, inasmuch as they involve financial records, are the same type services provided by Florida practitioners. Respondent, by submitting the HCMC Proposal to hospitals, nursing homes and other health care providers is both advertising and soliciting business. HCMC has submitted copies of its Proposal (Exhibit 1) to over 300 hospitals in Florida, and has obtained business previously performed by Florida practitioners. In the Proposal (Exhibit 1) HCMC offers services on a contingent fee basis. These services offered include reimbursement and recoupment of Medicare funds, and the fee paid HCMC is a percentage of the additional funds obtained as a result of the services provided by HCMC. Many of HCMC's services involve increasing reimbursement to the health care provider from Medicare and Medicaid sources. No audits unrelated to Medicare or Medicaid are performed, and financial statements prepared by HCMC do not refer to generally accepted accounting principles and generally accepted auditing standards, nor do they purport to express or disclaim an opinion as to the fairness of the presentation. The work performed by Respondent as an employee of HCMC would not constitute the practice of public accounting if performed by a non-certified person. The other employees of HCMC providing consulting services to health care providers similar to that provided by Respondent, are not in violation of Chapter 473, Florida Statutes.
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner is A graduate of the University of the East in Manila, Philippines. Petitioner is the holder of the state of Illinois C.P.A. Certificate No. 18012. On July 11, 1979, Petitioner filed an application to obtain a reciprocal certified public accountant certificate in Florida (licensure by endorsement) based upon his certificate issued by the State of Illinois. On December 14, 1979, the Board denied Petitioner's application for a reciprocal certificate for the reason that Petitioner had not graduated from an accredited four-year college or university and, accordingly, failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, now codified as Section 473.308(3)(b), Florida Statutes (1979) The University of the East in Manila, Philippines, is not recognized by the Board as an accredited university in Florida and was not so recognized at the time that Petitioner received his certificate as a certified public accountant in the State of Illinois. The University of the East is not listed among the institutions of post secondary education by the Council on Postsecondary Accreditation, the official listing of accredited colleges and universities adopted by the Board to ensure the minimum competence of public accounting practitioners. Additionally, the University of the East in Manila, Philippines, has not been accredited by any of the regional accrediting agencies recognized by the Board. Douglas H. Thompson, Jr., the Respondent's Executive Director since 1968, is the Board's chief executive officer and, as such, carries out the Board's functions respecting applications for licensure. Mr. Thompson examined Petitioner's application pursuant to Petitioner's Illinois certificate to ascertain whether Petitioner's certificate was issued under criteria substantially equivalent to Florida's licensing criteria and determined that the criteria were not substantially equivalent. Petitioner's application was considered by the Board on two occasions and was rejected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for a reciprocal certified public accountant certificate be denied. RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: Samuel Hankin, Esquire Commerce Building 226 South Main Street Gainesville, Florida 32602 Mr. Marianito Manalo Ilagan 9020 S.W. 56th Street Cooper City, Florida 33328 Ms. Nancy Kelley Wittenberg Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Batumane Shad Banto Kasanganay (Respondent), committed the offenses alleged in an Administrative Complaint issued June 24, 2008, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, as the Commissioner of the Florida Department of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate who are alleged to have violated the provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2008). At all times material to the allegations of this case, Respondent has held Florida Educator's Certificate No. 752042, covering mathematics, that is valid through June 30, 2010. From 1998 through the 2007 school year, Respondent was employed by the Palm Beach County School District as a math teacher at Bak Middle School (Bak). During his tenure at Bak, Respondent's students performed well on the Florida Comprehensive Assessment Test (FCAT) and the school became favorably ranked for its math achievement. Additionally, Respondent's students improved FCAT scores in mathematics over the course of his time with them. Prior to working with the students at Bak, Respondent worked in Okeechobee, Florida, and was teacher of the year one of the two years he taught at the Eckerd Learning Center, a school for juvenile offenders. Prior to the conduct complained of in this case, Respondent had no prior disciplinary concerns. Respondent had received satisfactory evaluations every year. Respondent, or "Mr. Kas" as he is also referred to in the record, came to the United States from central Africa. He spoke no English on his arrival but had received a degree in mathematics and physics from the Institute Alingea Studies. After moving to North Carolina, Respondent received a degree from Western Carolina University in Cullowhee, North Carolina, and became a United States citizen. Respondent travels under a S. passport and, at the time of the hearing in this cause, resides in Palmerston North, New Zealand. Respondent created a corporation named Mr. Kas, Inc., and opened "Mr. Kas Learning Center" in 2000 in order to better assist students with math anxiety to learn and improve mathematics skills. The learning center was a private business not affiliated with the Palm Beach County Schools where Respondent taught or tutored students from elementary school age through doctoral candidates to improve their math skills and to perform favorably on examinations. Respondent operated this "for profit" entity and received payment from those who participated in the after school program. The record is not clear as to whether Mr. Kas, Inc., was formally "doing business as" the "Mr. Kas Learning Center," but it is definite that only Respondent individually committed the acts complained of in the instant case. That is to say, all comments that were alleged to have been uttered were made by Respondent. No other individuals who may have attended or been associated with Mr. Kas, Inc., or the "Mr. Kas Learning Center" were involved. The alleged offending behavior was attributed solely to Respondent. None of the alleged behavior occurred during Respondent's work day at Bak. Respondent was a member of the Palm Beach County Classroom Teachers Association (CTA). It was customary for the CTA to provide workshops for its members and on several occasions Respondent was asked to conduct workshops. Additionally, Respondent assisted new teachers, members of the CTA, to pass the state certification examination. Respondent tutored/taught CTA members for compensation to pass the General Knowledge math portion of the certification examination. These sessions were generally group endeavors and Respondent was compensated based upon the number of persons in attendance. In addition to the foregoing, Respondent also worked with firefighters, police, nurses, and others who were required to pass a math competency section as part of their professional testing. Monday through Friday Respondent opened his learning center in the afternoon after school for school children. During this time he worked with students to complete their homework, prepare for tests, and study for exams. On Saturdays Respondent used the learning center to conduct group sessions to work with adults and professionals. The Department of Education publishes a preparation guide to address the General Knowledge test that must be passed for teacher certification in Florida. Respondent purchased the guide and used it and other questions he collected to develop a learning tool for persons who would take the Florida Teachers Certificate Examination and use his learning center for help to pass the math portion of the exam. Jennifer Tomko was a first year middle school teacher in Palm Beach County, Florida, during the 2006/2007 school year. Ms. Tomko applied for her teaching certificate with the Department of Education and was required to pass the General Knowledge examination, including the math section. On two occasions Ms. Tomko did not pass the math section. On her third attempt to pass, Ms. Tomko became distraught as she believed she had again failed to achieve a passing score on the math test. A test proctor observed Ms. Tomko's demeanor and suggested that she consider attending one of Respondent's tutor sessions at his learning center. Ms. Tomko had a "mentor teacher" at her school who had been tutoring her for several months. The mentor, Judith Warren, encouraged Ms. Tomko to attend Respondent's session. To that end, Ms. Tomko signed up for Respondent's Saturday math help session. When Ms. Tomko met Respondent and told him of her prior failed attempts to pass the math section of the exam, he assured her that with his help, she would pass the test. He remarked that it was her "lucky day." As part of his guarantee that she would pass the math section, Respondent provided Ms. Tomko with key phrases of the actual test questions along with the correct answer for the question. Respondent instructed Ms. Tomko to make flash cards to include the key phrase of the questions and to look for the answers he provided. Since Ms. Tomko did not have index cards with her, she used sheets of paper to make columns. The columns had the "key phrase" and the "answers" provided by Respondent. When Ms. Tomko got home, she copied the columns of information onto cards. The front of the card with the "key phrase" as provided by Respondent, the reverse of the card held the "answer." Respondent also gave Ms. Tomko a handout that included information regarding computing the distance between two cities. The information denoted in Respondent's handout contained real questions from the Florida teacher examination. These "live" questions were verbatim from the test and were sufficient to demonstrate Respondent had "collected" real information from the teacher examination in order to prompt his students with the correct answers. In fact, Respondent told Ms. Tomko to call him immediately after the test to let him know of any difficult questions. Respondent represented that with information regarding difficult questions, he could better assist future applicants taking the exam. Presumably, this is how Respondent was able to assemble the information he provided to Ms. Tomko and to assure her that she would pass the math examination. Obviously, by collecting real questions from test participants Respondent would be able provide answers that would allow success on the exam. According to Ms. Tomko during the tutoring session she attended, Respondent did not teach math strategies or formulas for completing the math section of the examination. Instead, Respondent offered questions (identified by the key phrases) and answers that the participants were to memorize. For example, if the question included something about a "toy in box" the answer was "13 feet." Actual examples of the test questions (or key phrases) along with the answers provided by Respondent are omitted here as they are confidential as a matter of law. See § 1008.23, Fla. Stat. (2008). Nevertheless, the key phrases and answers provided by Respondent were, in fact, actual questions from the math section of the examination. Respondent did not consider his assistance "cheating." Ms. Tomko, however, felt uncomfortable about memorizing the answers based upon the key phrases. According to Ms. Tomko, whose testimony has been deemed credible, Respondent instructed her to take the computer and not the written version of the test. Respondent told Ms. Tomko to memorize the card information previously described and to not finish too quickly in order to avoid suspicion. Ms. Tomko felt Respondent's words and behavior were contrary to her moral code and violated her responsibility as an educator to be a role model for students. Because she was offended, the evening after the Saturday tutor session with Respondent, Ms. Tomko contacted her mentor who then encouraged her to take the matter to their principal. The principal reported the case to the Department of Education and the instant administrative action ensued. The flash cards produced by Ms. Tomko contained real, "live" questions from the Florida Educational Certificate examination. All of the flash cards were constructed using the information from Respondent. DOE is charged with the responsibility of maintaining the examination questions and answers in a secure manner. The questions and answers are confidential and are not to be made public. The development of the examination questions cost over $300,000 and involved the efforts of DOE staff as well as private contractors who assist in the preparation of test questions. The examination is maintained in a locked vault with limited access to even DOE employees. Although test questions may be circulated indefinitely, different versions of the examination with different questions included are developed so that the same exact version is not repeatedly given. Nevertheless, by circulating the "key phrase" of a question with its answer, it would be possible for someone to circumvent the version differences among the exams since the questions themselves would remain the same. Once the instant case was referred to the DOE, Respondent became aware that he was under investigation. Respondent resigned his position with the Palm Beach County School District at the end of the 2006/2007 school year. Respondent's learning center was also closed near that time. Subsequently, Respondent left the country and currently resides in New Zealand. Respondent's claims regarding the closure of his learning center, the loss of records pertaining to the tutoring efforts made on behalf of CTA members, and other conflicting stories pertinent to this case result in the inescapable conclusion that Respondent was not forthright regarding his learning center and the materials and information he personally supplied to persons taking the teacher certification examination. In this case Respondent was charged with the following statutory violations: COUNT 1: Respondent is in violation of Section 1008.24(1), Florida Statutes, in that Respondent knowingly and willfully violated test security rules adopted by the State Board of Education for mandatory tests administered by or through the State Board of Education or Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 1008.22. COUNT 2: Respondent is in violation of Section 1008.24(1)(a), Florida Statutes, in that Respondent gave examinees access to test questions prior to testing. COUNT 3: Respondent is in violation of Section 1008.24(1)(b), Florida Statutes, in that Respondent copied, reproduced, or used in any manner inconsistent with test security rules all or any portion of any secure test booklet. COUNT 4: Respondent is in violation of Section 1008.24(1)(d), Florida Statutes, in that Respondent made answer keys available to examinees. COUNT 5: Respondent is in violation of Section 1008.24(1)(g), Florida Statutes, in that Respondent participated in, directed, aided, counseled, assisted in, or encouraged any of the acts prohibited in this section. COUNT 6: Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 7: Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Additionally, Respondent was charged with the following rule violations: COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(b), Florida Administrative Code, in that Respondent revealed, copied or otherwise reproduced tests or individual test questions. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(e), Florida Administrative Code, in that Respondent provided answer keys to examinees. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.042(1)(f), Florida Administrative Code, in that Respondent has participated in, directed, aided, counseled, assisted in, or encouraged an activity which could result in the inaccurate measurement or reporting of examinees' achievement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner and the Education Practices Commission enter a Final Order that suspends Respondent's teaching certificate for a period not to exceed one year, imposes an administrative fine in an amount not less than $2,000.00, and requires Respondent to take remedial instruction regarding the ethics applicable to educators in the State of Florida at his own expense before his certification can be reinstated. DONE AND ENTERED this 19th day of June, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 19th day of June, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, 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 Joan Stewart, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316
