The Issue The issues in this cause are as framed by an Administrative Complaint brought by the Petitioner against Respondent. Through this document it is charged that the Respondent attempted to obtain a license from the State of Florida pertaining to the practice of psychology and that he did so by actions of bribery or fraud, or fraudulent representation. See Section 498.009(2)(a), Florida Statutes.
Findings Of Fact Petitioner, State of Florida, Department of Professional Regulation, is charged with the responsibility of regulating the practice of those persons licensed as mental health counselors in the State of Florida. This authority is in pursuit of Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 490, Florida Statutes. Respondent, in all relevant time periods contemplated by this Administrative Complaint, was and is a licensed mental health counselor in the state of Florida. His license number is MH 0000294. On September 22, 1982, Petitioner received the Respondent's application to become a psychologist through exception. In turn, this was followed by an application for licensure based upon examination as received by the Department on October 4, 1982. Through the application process and in the interest of obtaining a license to practice psychology in Florida, Respondent indicated that he had received a doctorate (Psy D) in clinical psychology from the University of England at Oxford. It was further indicated by the Respondent that this school from which he obtained his doctorate was accredited by the European Accreditation Society. Further, Respondent indicated that he had received the degree in January 1981. One of the prerequisites for licensure in the State of Florida, as a psychologist, concerns the need to receive a doctorate in psychology from a psychology program which has been accredited by the American Psychological Association or, in the alternative, a degree which has been earned from an equivalent educational program. The University of England at Oxford not being an institution accredited by the American Psychological Association, it was necessary for the Respondent to demonstrate the equivalency of his academic achievement. The mechanical format which the Petitioner utilized in determining the question of equivalency was a form referred to as Psychology Program Analysis Form. A copy of this form as submitted by the Respondent in pursuit of his licensure as a psychologist may be found in the Petitioner's composite Exhibit 3 admitted into evidence. This item was received by the Department of Professional Regulation on September 16, 1983. The instructions for this form indicate that Part II shall be completed by the dean of the department from which the applicant had been awarded the doctoral degree. It is further indicated that this form should be mailed directly to the Board of Psychological Examiners of the State of Florida. In other words, it is the dean of the school who is responsible for the completion of the second portion of the form and for its submission to the State of Florida, directly. Furthermore, it was intended that the second part of the form, having been completed by the educator, should be signed by that person. Although an individual affiliated with the University of England at Oxford, one Anthony George Asquith, did sign the form dated December 1, 1982, Respondent is the person who completed the substance of this information provided to the Petitioner in Part II. That being so, Respondent acted contrary to the instructions given by the licensing agency and defeated the purpose related to having independent program assessment and verification offered by the officials within the University of England at Oxford. More importantly, for reasons as discussed subsequently, Respondent submitted this information in furtherance of his fraudulent attempt to gain a license to practice psychology in Florida. Among other misleading comments set out in the second part of the Psychology Program Analysis Form is the claim that the program at the University of England at Oxford is ". . . organized in a graded sequence of study designed by the psychology faculty responsible for the program." This program was not organized. In fact, there was no program. Instead, the University of England at Oxford was an organization having as its purpose the provision of phony degrees for those persons who had money to spend in obtaining bogus academic credentials. The less than genuine nature of the education allegedly provided by the University of England at Oxford was a fact which Respondent could easily discern. Consequently, his claim that he had received a doctorate from the University of England at Oxford, as an aid to getting a license to practice psychology in Florida, is patent fraud. Respondent, in furtherance of this fraudulent attempt, also submitted a document referred to as a transcript of grades for courses taken while a student at the University of England at Oxford. A copy of this transcript may be found in the Petitioner's composite Exhibit 3. Respondent was not involved in the course work depicted as being achieved while pursuing his studies at the University of England at Oxford. In actuality, Respondent did not pursue any courses at the University of England at Oxford. Respondent's involvement with the organization known as the University of England at Oxford began when he determined that he wished to obtain a doctorate degree in psychology without pursuing traditional course work. To this end, he wrote to the University of England at Oxford and received a catalog, a copy of which may be found as Petitioner's Exhibit 4 admitted into evidence. Respondent provided that organization with an enrollment fee. He also provided them with what the Respondent describes as a doctoral thesis. This doctoral thesis was not defended before the faculty at the University of England at Oxford. Indeed, the catalog for participation in the program offered by the University of England at Oxford did not require submission of a thesis to obtain a doctoral degree. All that was mandated was sufficient money to satisfy those persons within the University of England at Oxford that sufficient money had been paid to obtain the so-called doctorate degree. A copy of the alleged thesis may be found as Respondent's Exhibit 3 submitted into evidence. Although Respondent attempts to defend his actions in submitting his application for licensure as a psychologist based upon his argument that in his initial activities with the University of England at Oxford he had no reason to believe that the organization was less than genuine, this explanation is not credited. The facts demonstrate that from the inception, Respondent should have realized that the University of England at Oxford was not a legitimate academic institution and his utilization of the claimed degree from that organization constituted ill-gotten gains which he parlayed into an attempt to defraud the State of Florida in pursuit of licensure and, ultimately, the public who might be subjected to his practice as a psychologist. Dr. John Bear, an expert in assessing the bona fides related to non- traditional educational institutions, gave testimony at the final hearing. His familiarity with the University of England at Oxford goes so far as arriving at the door of the organization, only to find that the business being conducted there was that of a place where mail was received. In London, England, at the address given for the University of England at Oxford, he found a man seated behind a desk and when he asked of this person whether this location was the University of England at Oxford, the man replied, "We receive their mail here." There was no campus. There was no faculty. The facility was only a mail- receiving service address. In assessing Petitioner's Exhibit 4, Dr. Bear did not find the catalog to depict a legitimate school. His opinion concerning the legitimacy of the University of England at Oxford is accepted when he describes the school as clearly not being legitimate. Some of the observations which he had which lead him to those conclusions, and which are accepted as factually correct, concern the lack of a telephone number, the fact that the organization calls itself the University of England at Oxford, when it is located in London and the university town of Oxford is some distance away, and the fact that the literature within the catalog indicates that it is not necessary to do anything to receive a degree other than submit a resume. The lack of necessity to provide a thesis is an item which Dr. Bear feels that no legitimate doctoral program would allow for. Dr. Bear was struck by the fact that the only things necessary were submission of the resume and payment, and that the resume need only be brief and to the point. He indicates that the catalog points out that the person obtaining the so-called degree need not be concerned with meeting traditional standards of experience and that any resume or thesis provided would be favorably regarded. He points out that the fact that the catalog indicated that a 20 percent discount would be provided for those persons wishing to earn two or more degrees at once. This pertains to a 20 percent discount on the second degree and any degree thereafter. This, in Dr. Bear's thinking, is unheard of in legitimate education. The method of payment for the degree through money order, as opposed to checks, and the fact that the money orders would be made out to ISP is found to be irregular. Dr. Bear is struck by the fact that the catalog states that the degrees would be backdated to any year the applicant chooses, back to the year 1918. The year 1918 is the year indicated as being the founding year of the University of England at Oxford. Again, this backdating of a degree is unheard of in legitimate education, according to Dr. Bear. He points out that the degree can be received within six weeks, which seems inordinately short. He points out that no faculty is listed within the catalog. When he attempted to obtain a list of faculty from the University of England at Oxford, he received another catalog. His subsequent investigation revealed that there was no faculty, as mentioned before. He points out the fact that a fifty dollar charge is made for the receipt of transcripts from the University of England at Oxford. He found this to be unusual in that no courses are taken or grades received, and yet a transcript can be provided upon the payment of fee. In response to a question by Petitioner's counsel, Dr. Bear believes that the University of England at Oxford is a "phony-degree mill." He believes this to be so, given that the institution awards degrees without reason for doing anything other than paying money. There are no educational standards and there is no education being provided. Finally, Dr. Bear feels that any reasonably intelligent person could have perceived that the University of England at Oxford was not a legitimate educational institution. This insight includes the Respondent, and it is found that Respondent recognized or should have recognized that the University of England at Oxford was not legitimate. Other incidents which point out the scope of the fraud perpetrated by the Respondent in his attempt to gain licensure as a psychologist would include the submission to the Board of Psychology of the State of Florida a letter dated September 28, 1981, from Nelson Corcoran, the purported Dean of Students at the University of England at Oxford, directed to David A. Schriemer, who was a mental health program coordinator with the State of Florida, Department of Health and Rehabilitative Services. The correspondence, which the Respondent had knowledge of, indicates his attending classes at the University of England at Oxford, which he did not. The letter makes reference to the faculty at the University of England at Oxford, which Respondent had never met, nor had he met any students at the University of England at Oxford as the letter suggests. In the course of the hearing, Respondent alludes to a letter from the World Education Services, Inc., dated August 26, 1981, Respondent's Exhibit 1 admitted into evidence. This letter was obtained in Respondent's pursuit of an employment position which required doctoral level education. This correspondence was unrelated to the attempt at gaining licensure to practice psychology. The letter from World Education Services, Inc., indicates that the University of England at Oxford awards degrees equivalent to doctor's degrees in the United States, related to the field of psychology. The World Education Services, Inc., is an accrediting organization. If the Respondent was only conversant with the remarks of World Education Services, Inc., in their August 26, 1981, letter, a stronger argument might be made in his favor, although that argument would not overcome the clear import found within the catalog of the University of England at Oxford pointing out the unacceptability of that alternative form of education. Nonetheless, it was made abundantly clear to the Respondent on November 3, 1981, in correspondence from an official within the World Education Services, Inc., that it retracted its comments on the legitimacy of the doctoral program at the University of England at Oxford. A copy of that correspondence of November 3, 1981, is found as Respondent's Exhibit 2 admitted into evidence. Again, this is correspondence related to Respondent's employment situation, not in pursuit of the attempt to gain licensure as a psychologists. This latter correspondence from World Education Services, Inc., was never submitted in his attempts to gain employment at a doctoral level. This withholding of the information from his employer at that time, the State of Florida, Department of Corrections, was further evidence of the fact that the Respondent recognized the problems associated with the degree that he had obtained from the organization known as the University of England at Oxford. The November 3, 1981, correspondence clearly withdraws any statement of accreditation when it says that the doctor of psychology degree which the Respondent obtained in 1981 would not be considered in England or the United States for employment or academic purposes and that Respondent had not completed education in England which was equivalent to a doctoral degree in the United States.
The Issue The issues for determination in this proceeding are whether Respondent fraudulently or dishonestly completed the professional orientation program required for teachers holding two year temporary certificates and, if so, what, if any, disciplinary action should be taken against Respondent's teaching certificate.
Findings Of Fact Respondent was employed as a teacher at Hickory Tree Elementary School ("Hickory Tree") in the Osceola County School District during the 1990-1991 and 1991-1992 school years. Respondent holds Florida Teaching Certificate 684324 in psychology. Respondent's teaching certificate is a two year nonrenewable certificate. All teachers certified in Florida must complete a professional orientation program before receiving a five year professional educator certificate. Teachers who do not complete the program the first year are not entitled by right to a second year to complete the program. However, they may be granted an additional year to complete the program at the discretion of the assistant principal. Credit received by a teacher in the first year is not cumulative. A teacher who does not complete the professional orientation program in the first year must satisfy all of the requirements in the program during the second year. Respondent failed to complete the professional orientation program during the 1990-1991 school year. Respondent was granted an additional year to complete the program. There are 27 Florida Essential Generic Competencies which must be satisfied in order to complete the professional orientation program. A teacher complies with each item by submitting a written document which is kept in a portfolio during the school year and evaluated by a supervisor and the assistant principal. Item 24 requires a teacher to construct or assemble classroom tests to measure student achievement of objectives. A teacher must create his or her own test to evaluate what students learned from a lesson given by the teacher in the classroom. A teacher is not permitted to use form tests or tests prepared by other teachers to satisfy this requirement. The test must be the teacher's original work. During his first year of teaching, Respondent satisfied item 24 in the professional orientation program by submitting a test that demonstrated his competency to construct or assemble classroom tests. During the second year, however, Respondent submitted a different test. Respondent submitted a test on simple machines during his second year in the professional orientation program. The test was substantially identical to a test written by Ms. Margaret Ann Walek, another teacher at Hickory Tree at the time. Ms. Walek wrote the simple machines test in a previous year to satisfy her own professional orientation program requirement. The simple machines test was written by Ms. Walek to evaluate third grade students on concepts such as pulleys, levers, and basic functions of machines. It was created solely by Ms. Walek in her handwriting and transcribed by her mentor-teacher for the ditto master before being submitted to Ms. Walek's students. Ms. Walek used the simple machines test the following year in typed form. Respondent used a copy of the same test to satisfy item 24 in his professional orientation program. The similarity in the two tests was not detected by Respondent's supervisor or the assistant principal at the time Respondent submitted the simple machines test. Respondent received a satisfactory score for successfully completing the professional orientation program during the 1991-1992 school year. In December, 1992, the assistant principal was reviewing all of Respondent's records as a result of a charge of discrimination filed by Respondent against the assistant principal after his employment was terminated for reasons not at issue in this proceeding. The assistant principal called Ms. Walek to the office. Without knowing the purpose of the inquiry, Ms. Walek identified a copy of both the ditto version of the simple machines test and the typed version as her original work. Respondent submitted evidence during the formal hearing that the allegations against him were made in retaliation for his charge of discrimination. However, Ms. Walek is no longer employed as a teacher in the Osceola County School District. She is employed in the private sector and has no discernible secondary gain for testifying on behalf of Petitioner. Her testimony on behalf of Petitioner during the formal hearing was credible and persuasive and was corroborated by competent and substantial evidence. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means. He converted the work of another teacher and submitted it as his own in order to complete the professional orientation program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of obtaining his teaching certificate by fraudulent and dishonest means, within the meaning of Section 231.28(1)(a) and Florida Administrative Code Rule 6B- 1.006(5)(a) and (h), and suspending Respondent's teaching certificate for two years from the date of Respondent's termination of employment. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact All of Petitioner's proposed findings of fact are accepted in substance. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire 411 East College Avenue Tallahassee, Florida 32301 Joseph Egan, Jr., Esquire P.O. Box 2231 Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact By letter dated February 4, 1976, the Board denied the Petitioner's application for licensure as a psychologist in the State of Florida (Petitioner's Exhibit 1). As grounds for its denial the Board stated that the Petitioner's doctoral degree does not meet the requirements of Florida Statutes Chapter 490.19(1)(d). Petitioner received a master's degree in clinical psychology from the University of Tennessee, Knoxville, Tennessee in March, 1949. A transcript of the Petitioner's record at the University of Tennessee was received in evidence as Petitioner's Exhibit 2. Petitioner took two academic quarters of course work at the University of Tennessee, Knoxville, and two quarters at the University of Tennessee, Memphis, School of Medicine, Department of Psychiatry. While at Knoxville the Petitioner completed, inter alia the following courses: Philosophy 401, a course in esthetics; Psychology 431 and Psychology 432, courses in clinical psychology with an emphasis on testing materials; and Psychology 542, a course in advanced statistics. While at Memphis the Petitioner completed the following courses: Psychiatry 403, a course in fundamentals of human behavior; Psychology 461, a course in applied psychological psychology; Psychology 651, a course in which clinical practices were demonstrated and discussed; Psychology 681, a practicum course in testing, diagnosis, and evaluation of patients at the psychiatric hospital; Psychology 594, a course in advanced testing techniques; and Psychology 682, an additional practicum course. In addition to the course material Petitioner completed a thesis, and oral examinations. The Petitioner then completed an internship at the University of Tennessee, Department of Psychiatry, which is called the Gailor Psychiatric Hospital. Following her internship the Petitioner joined the staff at the Gailor Psychiatric Hospital, where she worked for four years. During the fall of 1967 the Petitioner attended George Washington University. A transcript of her record at George Washington University was received in evidence as Petitioner's Exhibit 4. Petitioner took the following courses: Learning Problems and Disabilities, a course on how to teach and handle misbehaving, disturbed children; and the Adolescent in School and Work, a course dealing with behavioral adjustment of adolescents. Before she could complete a degree program at George Washington, the Petitioner's husband was relocated, and she moved to Las Alamos, New Mexico. During 1970 the Petitioner enrolled in the University of New Mexico in Albuquerque, New Mexico. Petitioner entered the College of Education, Department of Guidance and Counselling. Petitioner was seeking a degree in clinical psychology. There is a Department of Psychology at the University of New Mexico, but the program in that department dealt almost exclusively with experimental psychology, a program in which the Petitioner had no interest. The transcript of the Petitioner's record at the university of New Mexico was received in evidence as Petitioner's Exhibit 5. During the spring academic quarter of 1970, the Petitioner took a workshop course which focused upon working with children who have learning disabilities. During the summer academic quarter of 1970 Petitioner took a course dealing with the treatment of special education children in the regular classroom, and a seminar which dealt with education and treatment of neurologically impaired children. During the fall, 1970 academic quarter Petitioner took a course in group techniques for guidance; a course dealing with the education of emotionally disturbed children; and an advanced course dealing with education and treatment of neurologically impaired persons. During the spring academic quarter, 1971 the Petitioner took a course in techniques of counselling, an advanced practicum course in guidance and counselling, and an additional course in working with physically and neurologically impaired persons. During the summer quarter, 1971 Petitioner took a course titled "Research Design and Statistics". During the fall quarter of 1971, the Petitioner took a course on techniques of parent and teacher counselling, and a course on advanced theories of counselling and psychotherapy. During the spring quarter of 1972, the Petitioner took an additional advanced practicum in counselling and guidance. In addition to her course work the Petitioner completed a dissertation. The Petitioner's dissertation was a study of the way school counsellors view their work, both as they actually perform it and as they ideally perceive it; and the way students view what counsellors do, both in reality and ideally. Petitioner received a Doctor of Philosophy degree from the University of New Mexico. Her degree was labeled a degree in Pupil Personnel Services, which is an umbrella degree for all doctoral programs in the School of Education. Petitioner's major field of study was titled Counselling Psychology. No program in the University of New Mexico School of Education was approved by the American Psychological Association at the time that Petitioner was at the University of New Mexico, and no program has been approved since that time. The course of study undertaken by the Petitioner at the University of New Mexico is not a program with a standard of training comparable to universities having programs approved by the American Psychological Association. Petitioner's program was primarily limited in scope to one specific facet of a general program in psychology, that being school guidance and counselling. Some of the courses taken by the Petitioner included aspects of a general course in psychology, but the courses were not designed to provide a comprehensive background in psychology. The post-graduate programs pursued by the Petitioner prior to her enrolling in the University of New Mexico do not adequately fill the void. Petitioner's course work at the University of Tennessee, and at George Washington University does not provide her with a comprehensive academic background in psychology.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
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
