The Issue The issue is whether Petitioner Walton County School Board (Petitioner) had good cause to reject Superintendent Jack Bludworth's (Superintendent) nomination of Respondent Linda Rushing (Respondent) for an annual administrative contract to fill the position of Exceptional Student Education (ESE) Coordinator.
Findings Of Fact Respondent holds Florida teaching certificate number 595971. She is certified in elementary education, emotionally handicapped education, and school guidance. She received a Bachelor of Science degree in emotionally handicapped education from the University of West Florida and a Master of Education degree in mental health counseling from Troy State University. She is currently seeking a Doctorate of Education in Alternative Education/At Risk Education from the University of West Florida. Respondent has six years of classroom experience as a teacher of emotionally handicapped students. She served as a guidance counselor for three years, two of which included working with ESE students. Respondent served as Petitioner's ESE Coordinator from March 16, 1998, to June 30, 1999. Prior to that time, she had no experience working as an administrator. As ESE Coordinator, Respondent was responsible for the administration of Walton County School District's (the district) special education department. Her duties included the direct supervision of employees assigned to that department. She was required to work with teachers and special education professionals throughout the district to identify ESE students who were eligible for services pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Additionally, she was responsible for ensuring that the district provided each ESE student with an appropriate education under an individual education plan (IEP) as required by IDEA and Section 504. The failure to follow state and federal regulations to properly identify and educate ESE students could result in significant financial repercussions for the district. Therefore, Respondent was required to interact with the Superintendent and Petitioner to make sure that the district complied with these regulations. The Superintendent took office in November 1996. Jerry Jones, Donnie Richardson, and Darrell Barnhill were elected to the five-member school board in November 1998. Susan Adkinson and Mark Davis retained their positions as school board members, having been elected in a previous election. After the November 1998 election, Petitioner elected Mr. Jones to serve as its chairman. Ms. Bebe Whitehead was in charge of the ESE department for several years until she retired early in 1998. Upon her retirement, Ms. Cindy Jeselnik, formerly the ESE staffing specialist for secondary students, became the interim ESE director. Ms. Jeselnik is certified by the Department of Education (DOE) in the areas of health education, school guidance, and administration and supervision. She has a Master of Education degree in administration and supervision. Ms. Jeselnik has worked for the district for approximately 13 years. After Ms. Whitehead's retirement, Ms. Nancy Holder continued to work in the ESE department, as the district's only school psychologist. Ms. Holder had served in that position for approximately 16 years. Her prior work experience includes 11 years as a teacher of emotionally handicapped students in Holmes County. She has a bachelor's degree in intellectual disabilities, a master's degree in school psychology, a specialist degree in educational leadership, and a specialist degree in curriculum instruction. She needs to take three classes and write a dissertation in order to receive a doctorate degree. As a certified school psychologist, Ms. Holder was employed under an administrative salary schedule, earning approximately $50,000 annually. When Ms. Whitehead retired, Ms. Cecilia Bishop Jones continued to serve as the district's ESE Pre-Kindergarten Coordinator. Her duties included working as the Child Find specialist and providing direct instruction to pre-kindergarten ESE students as a speech teacher. She played an integral role in the referral process to determine the eligibility of pre- kindergarten students for participation in the ESE program. At times she signed IEPs as the speech pathologist. She had served in that capacity since 1994, when James King, the district's superintendent from June 27, 1994, through November 18, 1996, nominated her to fill an approved position as a speech/language pathologist. 1/ Her prior work experience included working for the district as an elementary school teacher. Ms. Jones has a Bachelor of Arts degree in elementary and early childhood education. She is certified to teach in those areas. After her transfer to the ESE department, she began taking classes towards an undergraduate degree in speech pathology. In order to be certified as a speech pathologist, one needs to have a master's level degree in that area. A target selection committee interviewed applicants to fill the position vacated by Ms. Whitehead. This committee was composed of education professionals from outside the area. The committee recommended Ms. Jeselnik, Ms. Holder, and Respondent as the number one, number two, and number three candidates, respectively. Presented with these three names, the Superintendent chose to nominate Respondent for ESE Coordinator. Petitioner approved the Superintendent's nomination on March 16, 1998. Ms. Jeselnik was visibly upset when Respondent was hired as ESE Coordinator. For the remainder of the 1997/1998 school year, Ms. Jeselnik avoided contact with Respondent whenever possible. On May 27, 1998, Respondent performed Ms. Jeselnik's "annual evaluation." Ms. Jeselnik complained to the Superintendent that it was the lowest evaluation she had ever received. In August 1998, the Superintendent granted Ms. Jeselnik's request for a lateral transfer to the position of Student Services Coordinator. In her new position as the head of the student services department, Ms. Jeselnik was no longer under Respondent's supervision. When Respondent became ESE Coordinator, she became concerned that Ms. Jones was functioning as an uncertified speech pathologist in violation of state and federal regulations. Due to that concern, Respondent informed Ms. Jones that she would no longer serve as a speech teacher/therapist. Respondent immediately restricted Ms. Jones' duties to assisting with referrals to the ESE pre-kindergarten program. For the duration of the 1997/1998 school year, Ms. Jones worked in the ESE department as a Child Find specialist. Respondent performed an "annual evaluation" of Ms. Jones in June 1998. Shortly thereafter, Ms. Jones requested a lateral transfer to the student services department. The Superintendent granted this request in August 1998. Ms. Jones' new title became Resource Teacher for Early Childhood, Child Find, and Home Education. Primarily she continued to serve as a Child Find specialist. There was no established position for a Child Find specialist in the ESE department or the student services department. Therefore, Ms. Jones' transfer created some confusion concerning the person responsible for performing her evaluations. On May 27, 1998, Respondent sent the Superintendent a memorandum requesting that he place a revised school psychologist position description, together with terms of employment, on Petitioner's agenda for the upcoming meeting. The position description required the school psychologist to have a current Rank II teaching certificate and to be a specialist in the field. The position description required the school psychologist to be responsible for all psychological testing in grades pre-kindergarten through 12, including all testing of ESE students. The proposed terms of employment that Respondent submitted with the revised position description provided for a 12-month annual contract. The proposed salary was based on a range from $33,000 to $36,000, depending on the school psychologist's degree level and expertise in the field. A school psychologist with a master's degree would earn a base salary of $33,000. The salary range was not on a published salary schedule for instructional, administrative, or non- instructional personnel. Petitioner considered the Superintendent's recommendation and approved the revised position description and terms of employment on June 9, 1998. Petitioner also authorized the Superintendent to advertise for a school psychologist to fill the position. The person hired to fill the position would have provided the district with a second school psychologist because Ms. Holder continued to hold her position in that capacity. On or about July 15, 1998, Ann Farrior applied for the position of school psychologist as advertised pursuant to the revised position description. Ms. Farrior received her master's degree in school psychology in 1990. However, she did not complete a school psychology internship because one was not required for certification in Florida at that time. Ms. Farrior worked exclusively in private clinical practice until Petitioner hired her on an as-needed basis in 1996/1997. Under the 1996/1997 contract with Petitioner, Ms. Farrior was a member of the child study team and acted as a referral agent for ESE students. On July 20, 1998, Respondent and Ms. Holder interviewed Ms. Farrior for the school psychologist position. Ms. Farrior revealed that she was not certified in school psychology because she lacked 6 required courses and an internship. She also revealed that it would take approximately two years for her to achieve certification. Ms. Farrior stated that she held a two-year temporary certificate to teach in the subject area of psychology from July 1, 1996, through June 30, 1998. The interview team understood that Ms. Farrior was eligible to renew this two-year temporary certificate upon her employment with the district. The interview team noted that they needed to check with DOE regarding Ms. Farrior's credentials. After the interview, Respondent and Ms. Holder agreed that they would recommend Ms. Farrior for the school psychologist position. They chose Ms. Farrior over two other applicants. One of those candidates was certified in school psychology but had no work experience in the field. Respondent offered and Ms. Farrior accepted the job with a $33,000 annual salary. On August 4, 1998, the Superintendent nominated Ms. Farrior for the new school psychologist position. The Superintendent believed Ms. Farrior was certified or eligible for certification when he made this nomination. Petitioner approved her employment effective retroactively to July 28, 1998. On July 1, 1998, Zane Sunday became the district's personnel director. 2/ Soon after Ms. Farrior's employment, she requested that Mr. Sunday assist her in renewing her temporary certificate in psychology. 3/ Ms. Farrior wrote several memos to the district's personnel department regarding the request for issuance of her new temporary certificate from DOE. However, DOE never received such a request. Shortly after assuming the position of ESE Coordinator, Respondent entered into negotiations with Vantage Healthcare Corporation, d/b/a Destin Health Care and Rehabilitation Center (DHC) for the provision of contract services, including speech/language pathology services and supervision, physical therapist services, and occupational therapist services. The three written contracts state that the district shall pay $55.00 dollars per hour for all services provided. The services for a speech/language pathologist included "supervision of personnel, for speech therapy and related services which include the writing of IEP's [sic], attending staffings, and IEP review at assigned school." The services for a physical therapist and an occupational therapist included "administration and coordination of services, on-site services rendered, and education of personnel and families." All three contracts state that the district will reimburse DHC for mileage at .29 per mile. During the negotiation of the contracts, Respondent reached a separate oral agreement with DHC that, in addition to the services specified in the contracts, the $55.00 per hour rate would include all time spent by the therapists in traveling from school to school. The written contracts did not express this separate oral agreement. Respondent presented the written contracts to the Superintendent and Petitioner's attorney for their approval. She did not explain to them that the $55.00 per hour charge included the travel time of the DHC service providers. On the Superintendent's recommendation, Petitioner approved the three contracts on August 11, 1998. The contracts were effective August 1, 1998, through June 30, 1999. Beginning in August 1998, DHC regularly submitted invoices to the district for payment that, without Petitioner's knowledge, included charges at the rate of $55.00 per hour for the driving time of DHC service providers. Respondent had the responsibility to review the invoices to ensure payment according to the contracts prior to submitting them to the finance department. On or about August 10, 1998, Respondent gave Mr. Sunday a personnel action form for Ms. Farrior. The form related to a "[n]ew" position needed due Board action on June 9, 1998. Ms. Farrior's position description and terms of employment were attached to the form. The terms of employment stated that the employment contract was for 12 months with a base salary of $33,000 for a master's level degree. Mr. Sunday informed Respondent that the position description did not allow for a negotiated salary and that Petitioner could not have approved it as such. Mr. Sunday also said that Ms. Farrior was not entitled to an incremental increase in pay based on her experience because she was not a full-time employee when she worked for the district in 1996/1997. Ms. Farrior eventually agreed to work for $23,000 under a published instructional salary schedule. In September 1998, Ms. Holder became the ESE department's Program Specialist/Staffing Specialist. The change in her job description was due to Ms. Jeselnik's transfer to the student services department. In her new capacity, Ms. Holder no longer functioned as a school psychologist. Thereafter, Ms. Farrior was responsible for all testing and diagnostic services in the district. Ms. Frieda White-Crenshaw was a DHC speech pathologist. Pursuant to one of the contracts between Petitioner and DHC, Ms. White-Crenshaw's duties included supervising the district's speech therapists. In the fall of 1998, Ms. Jones was required to work with Ms. White-Crenshaw to determine whether pre-kindergarten students required additional referral services. Ms. Jones met with Ms. White-Crenshaw and parents in Child Find screenings and ESE eligibility meetings. Respondent was present during some of these meetings; she did not approve of Ms. Jones' attitude toward Ms. White-Crenshaw in these meetings. On October 6, 1998, Mr. Sunday prepared a list of employees who were teaching or working in a field for which they were not certified. He compiled this list based on information furnished by school principals, supervisors, and department heads. Respondent did not report that Ms. Farrior was working as an out-of-field school psychologist. Mr. Sunday personally added Ms. Farrior's name to the list. Neither he nor Respondent contacted DOE to check Ms. Farrior's certification status. One week later, Petitioner approved the list based on the Superintendent's recommendation. Petitioner was unaware that Ms. Farrior was functioning as an uncertified, out-of-field school psychologist. Jim McCall has been the district's Finance Officer for 15 or 16 years. He is responsible for the district's financial accounts, including budget and payroll. He is also responsible for paying invoices as Director of Purchasing. Occasionally, school board members request Mr. McCall to answer questions regarding the district's financial accounts. Petitioner is required to approve monthly voucher reports and the annual financial report. The Superintendent and Petitioner's chairman co-sign checks issued by the district. Usually a signature machine imprints their signatures on each check. The Superintendent has always followed this practice. When Mr. Jones first became Petitioner's chairman, he elected to sign each voucher personally. He also reviewed each invoice or statement before signing his name to a check in payment of a bill. On November 17, 1998, Mr. McCall sent Respondent a memorandum requesting copies of all ESE telephone and fax logs for the period beginning August 1, 1998 through November 17, 1998. Mr. McCall made the request on behalf of a school board member. Subsequently, Mr. McCall informed Respondent that the school board member making the request was Mr. Jones. Mr. McCall also informed Respondent that Mr. Jones had not requested similar records from any other department. However, it was a routine practice for Mr. McCall to request administrators to furnish other types of records in order to satisfy concerns of individual school board members. On November 18, 1998, the speech therapist at Butler Elementary School (BES) went on emergency maternity leave. Respondent and BES's principal could not locate a substitute speech therapist. In order for there to be no interruption of speech therapy services at BES, Respondent and DHC entered into a oral agreement for DHC to provide those services for $440.00 per day, inclusive of all expenses. On November 23, 1998, Respondent wrote a memorandum to Mr. McCall refusing to provide the ESE department's telephone and fax logs to Mr. Jones unless Petitioner's attorney or Petitioner, as a collective body, directed her to comply with the request. Respondent quoted Petitioner's policy regarding the lack of authority for school board members to act individually, including as a district administrator. Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. On November 23, 1998, Respondent sent the Superintendent a memorandum requesting that he place a proposed contract with DHC on the agenda for Petitioner's next meeting. The purpose of the contract was to fill a vacancy at West DeFuniak Springs Elementary School (WDSE) due to the sudden resignation of the speech/language pathologist. The proposed contract stated that the district would pay DHC $300.00 per day for all services provided by DHC's certified speech pathologist. The contract did not include any reference regarding the district's obligation to pay mileage expense. The contract stated that it was effective beginning October 5, 1998, through May 28, 1999. On November 24, 1998, Respondent wrote an addendum to her prior memorandum regarding Mr. Jones' request for the ESE department's telephone and fax logs. This document states: On the date of November 23-24, 1998 I communicated with Mr. Mike Dill, Regional Director of the Federal Bureau of Investigation regarding your request for 'a copy of all telephone and fax logs for the time period of August 1st - November 17th, 1998.' I was directed by Special Agent Dill not to release these records. Therefore, I will comply with Mr. Dill's recommendation. In addition, independent legal counsel will be contacted for representation at this time, as well. (emphasis in original) Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. In a subsequent public meeting, Mr. Jones questioned Respondent about her November 24, 1998, memorandum. She responded orally, stating that she had talked to a Federal Bureau of Investigation (FBI) agent. According to Respondent, the FBI agent had directed her not to release the records sought by Mr. Jones. On November 30, 1998, DHC's speech pathologist provided one day of speech therapy to the students at BES. These services were provided under the oral contract between Respondent and DHC. On or about December 7, 1998, the speech therapist on emergency maternity leave from BES was granted additional maternity leave. Her maternity leave was extended through February 15, 1999. DHC's speech pathologist continued to provide speech therapy at BES under the oral contract. Respondent knew that DOE staff would perform an audit to determine the district's compliance with state and federal regulations under IDEA and Section 504 during the 1997/1998 school year. The audit was scheduled for sometime in April 1999. Respondent was concerned because many ESE records for the prior year were deficient, showing that the district had not followed proper procedures in identifying and educating ESE students. In an effort to prepare for DOE's audit, Respondent requested technical support from a DOE pre-audit team. On December 8, 1998, Judith Smith and Cathy Bishop, DOE staff members, performed the pre-audit. During their one- day visit, they examined the records of six ESE students at Freeport High School and two ESE students at Walton Middle School. On or about December 8, 1998, school board member Darrell Barnhill signed a memorandum regarding a proposed amendment to the proposed contract with DHC for speech pathologist services at WDSE. In pertinent part, Mr. Barnhill's proposed amendment inserted additional language to clarify that the $300.00 per day charge included full payment for mileage expenses and any other incidental expenses associated with DHC's provision of the services. By way of background, Mr. Barnhill noted that an emergency need for speech therapy services had existed at WDSE since October 5, 1998. He concluded that consideration of the contract was presented to Petitioner in an untimely fashion. Sometime thereafter, Petitioner approved this contract as revised. On December 14, 1998, Respondent sent the Superintendent, Mr. Jones, and FBI agent Mike Dill, a memorandum regarding the request for her to produce copies of the ESE department's telephone and fax logs. For the first time, Respondent explained that she did not comply with the request immediately because she was attempting to seek expert advice concerning the confidentiality of information related to ESE students and their families. The memo states in pertinent part: During this time period, I was misinformed through a third party that FBI agent Mike Dill had issued a directive to not release the requested logs - I acted on this information. I was informed on December 11, 1998, by Special Agent Dill that he had never issued those instructions and that, in fact, it was not a FBI matter. In the memorandum, Respondent agreed to produce the records on December 16, 1998, after redacting all confidential information. 4/ She also apologized to Agent Dill and the members of the school board for any inconvenience or embarrassment that she may have caused. Respondent made this apology after Petitioner's attorney contacted the FBI and determined that Agent Dill had never communicated with Respondent. On December 15, 1998, Mr. Jones made a walk-in visit to DOE's teacher certification office in Tallahassee, Florida. The purpose of the visit was to inquire about Ms. Farrior's certification status. By letter dated December 17, 1998, Cathy Bishop, DOE's Director of Program Administration and Evaluation, provided Respondent with a report relative to the December 8, 1998, pre- audit of ESE records. The letter listed specific deficiencies in the student records reviewed by the pre-audit team. The deficiencies noted were not limited to those created during the 1997/1998 school year. The report discussed all compliance issues observed in the records, including violations of state and federal regulations occurring in the fall of 1998 after Respondent became ESE Coordinator. Sometime during the December 1998 school holidays, Mr. and Ms. Jones met in Marianna, Florida with Gregg Centers, a member of the Auditor General's staff. The purpose of the visit was to make inquiries concerning certain DHC invoices. Mr. Jones had obtained the invoices in his capacity as a school board member. On a subsequent trip to Tallahassee, Florida, Mr. and Mrs. Jones met with Wayne Blanton regarding these same invoices. Mr. Blanton is associated with the Florida School Board Association in some capacity. During the December 1998 school holidays, or soon thereafter, Mr. Jones requested Mr. Sunday to call DOE's certification office regarding Ms. Farrior's certification. Mr. Sunday's subsequent call to DOE revealed that Ms. Farrior could not perform intelligence testing of ESE students because she was not certified as a school psychologist. By letter dated December 28, 1998, David Mosrie, Director of DOE's Division of Public Schools and Community Education, advised the Superintendent that his staff had observed significant deficiencies in IEPs developed during the 1997/1998 school year. He noted that the district had corrected some of the deficiencies. He also noted that the district's staff had been proactive in addressing concerns about violations of IDEA. Nevertheless, Mr. Mosrie specifically directed the district to "take action to conduct IEP meetings to correct any IEPs that do not contain present level statements, goals, objectives, and evaluation procedures, as soon as possible." In a memorandum dated January 4, 1999, Respondent requested the Superintendent to place a proposed contract with DHC on the agenda for Petitioner's next meeting. The proposed contract stated that DHC agreed to provide substitute speech/language therapy to the students at BES for $440.00 per day for all services, including all travel time between schools and mileage. The proposed contract stated that it was effective November 30, 1998, through February 15, 1999. Respondent's delay in presenting this proposed contract to Petitioner was caused in part by difficulty in negotiating the contract during the reallocation of corporate responsibilities between DHC and a new corporation, Beverly Health and Rehabilitation Services, Inc. On or about January 5, 1999, Respondent contacted the DOE certification office by telephone to inquire about Ms. Farrior's certification status. She learned that according to DOE's records, Ms. Farrior needed to complete specialization requirements. As ESE Coordinator, Respondent's responsibilities required her to review and verify the accuracy of invoices sent to the district by vendors who provided goods and services to the ESE department. She was expected to review DHC invoices to determine whether the charges were consistent with services provided under contracts approved by Petitioner. Respondent had a certain amount of funds in her budget for discretionary expenses. She had sufficient funds to send someone to represent the district at an autism conference. Respondent elected to send Ms. White-Crenshaw to the conference. As stated above, Ms. White-Crenshaw was a DHC speech pathologist who provided supervisory speech and language services to ESE students in the district. DHC sent the district the following four invoices: (a) an invoice dated November 30, 1998, in the amount of $440.00, for Barbara Carter's services on November 30, 1998, at BES, approved by Respondent on December 7, 1999; (b) an invoice dated October 6, 1998, in the amount of $6,454.29, for Frieda White-Crenshaw's services as a supervisor during the month of September 1998, approved by Respondent on November 20, 1998; (c) an invoice dated November 3, 1998, in the amount of $8,845.66, for Frieda White-Crenshaw's services as a supervisor during the month of October 1998, approved by Respondent for payment in the amount of $8,680.66; and (d) an invoice dated December 3, 1998, in the amount of $5,596.83, for Frieda White- Crenshaw's services as a supervisor during the month of November 1998, approved by Respondent on December 7, 1998. Respondent sent these invoices, which total $21,173.78, to Mr. McCall's office for payment on or about December 9, 1998. Mr. Jones reviewed these invoices and refused to pay them. He listed the dollar amounts that could not be paid for each invoice pursuant to the written contracts. Mr. Jones requested that Mr. McCall verify the charges in relation to the DHC contracts. Mr. McCall subsequently compared the invoices to the DHC contracts and the "outsourcing therapy labor logs" maintained by DHC staff. At the request of Mr. Jones, Mr. McCall arranged a meeting with the school board attorney; Mr. Jones; the Superintendent, and Respondent. Mr. Jones refused Respondent's request to invite DHC to the meeting. Based on advice of counsel during the meeting, Mr. McCall concluded that the district had to reduce payment to DHC for the invoices in question by $14,135.00. During the meeting, Respondent was advised that the district would not honor future DHC invoices to the extent that the invoices included charges at $55.00 per hour for the service providers' school-to-school travel time because travel time was not covered under the DHC contracts. In fact, future DHC invoices would be reduced for any service provider's time not reflected in sign-in/sign-out logs maintained at the individual schools or sites where the services were provided. Respondent agreed to inform DHC of the reasons for the reductions. At the request of Mr. Jones, she also agreed to inform DHC that its staff would have to sign-in and sign-out on logs maintained by the individual schools or sites where services were provided. Respondent created a form for DHC staff to sign because not all schools maintained sign-in/sign-out logs. These types of logs are usually kept as "site-based management decision," and not pursuant to Petitioner's policies. Mr. Jones did not request that any other vendor sign a site-based log. This caused Respondent some concern because one other ESE contract vendor did not have to keep on-site time logs. In a memorandum dated January 7, 1999, Mr. McCall directed his staff to pay $7,038.78 for services rendered by DHC staff as reflected on the four DHC invoices referenced above. According to Mr. McCall, the amount paid to DHC was reduced for the following reasons: (a) there was no contract between Petitioner and DHC for Barbara Carter to provide services at BES during the month of November 1998; (b) contracts between Petitioner and DHC that were in place did not authorize payment for school-to-school travel time of DHC employees; and (c) contracts between Petitioner and DHC did not cover expenses incurred by DHC staff for attending an autism conference. Despite this reduction in payment, DHC continued to provide uninterrupted services pursuant to the written contracts. During a school board meeting on January 12, 1999, Petitioner rejected the Superintendent's recommendation to revise the job description for a school psychologist for ten months plus two additional months (10+2) on an instructional salary schedule. Petitioner approved the Superintendent's request to advertise for a full-time ESE teacher in the Options Alternative School (Options), the district's second/last chance program. Additionally, Petitioner discussed the following matters without taking any action: (a) Mr. Jones' concern that Ms. Farrior was not a certified school psychologist and therefore could not administer intelligence tests to ESE students; (b) the approval and payment of DHC invoices; and (c) the proposed DHC contract for services at BES. During the school board meeting on January 12, 1999, Respondent stated that Ms. Farrior only lacked one course, for which she was currently enrolled, in order to be eligible for certification as a school psychologist. This information was incorrect. Ms. Farrior took no course work toward fulfilling her certification requirements during the first semester of the 1998/1999 school year. The second semester Ms. Farrior took two of the courses required for certification. In January 1999, she needed to complete those two courses, take one other course, and complete an internship. At that time, Ms. Farrior had not applied for enrollment in an accredited school psychology internship program or registered for the final academic course. In January 1999, Ms. Farrior also needed to send transcripts of courses that she had taken in prior years at Troy State University to the DOE certification office. Additionally, DOE did not have a record of some of Ms. Farrior's required examination scores. Some of the scores were missing because Mr. Sunday's office had not forwarded them to DOE. One other score was missing because Ms. Farrior had not taken the exam. Finally, Respondent misled Petitioner by stating that Ms. Farrior could be employed as "out-of-field teacher" even though she lacked certification as a school psychologist. While Petitioner's rules authorize teachers, under appropriate circumstances, to teach classes outside the areas for which they are certified, DOE rules do not permit one who is certified only to teach psychology to administer intelligence tests as an "out- of-field" school psychologist. During a January 19, 1999, school board meeting, Mr. Jones expressed his concern regarding the backlog of students requiring psychological testing. He also discussed Ms. Farrior's inability to administer intelligence tests under DOE rules. Petitioner subsequently voted to approve a contract with Florida State University's (FSU) Multidisciplinary Center for the provision of services, including intelligence testing and re-evaluations of ESE students formerly tested by Ms. Farrior. The Superintendent approved of contracting with FSU to test the ESE students. He was aware of one complaint from one parent about the backlog in testing students. However, the Superintendent was not of the opinion that the testing backlog was due to Ms. Farrior's not being certified as a school psychologist. He felt that it was a problem that Respondent inherited when she became ESE Coordinator. The Superintendent did not believe the district could eliminate the backlog until it hired a second school psychologist to fill the position formerly held by Ms. Holder. Respondent was not in favor of contracting with FSU. She wanted to allow Ms. Farrior to continue administering all tests except intelligence tests. She was willing to perform Ms. Holder's duties so that Ms. Holder could perform any re- evaluations of ESE students that were necessary. Under that arrangement, Ms. Holder eventually re-tested 24 ESE students. The test results from Ms. Holder's re-evaluations were not significantly different from the intelligence testing performed by Ms. Farrior. There were no changes in the placement of any ESE students after the re-evaluations were performed. The re-testing of the students did not result in any additional cost to the district, but it increased the workload of the ESE department. By letter dated January 20, 1999, Shan Goff, Chief of DOE's Bureau of Instructional Support and Community Services, advised the Superintendent of the following: (a) only a certified school psychologist could administer intelligence tests to ESE students; (b) an uncertified examiner could not administer the test even if a licensed individual "signed-off" on the test as supervisor; and (c) under certain conditions, an intern in an approved course of study could perform intelligence testing provided the testing was performed under the supervision of a qualified individual. Ms. Goff's January 20, 1999, letter set forth the following specific actions that the district needed to take in order to be in compliance with IDEA: Re-test all students whose tests of intelligence were administered by the non- certified individual and prepare and "addendum" or a comprehensive psychoeducational report. Please note that school psychology practices may require that a different test be used for re-testing purposes than the instrument originally administered. Determination about what tests should be administered will need to be made on an individual student basis. Make a determination about parental involvement. We believe it advisable to notify parents of the situation and the purpose of the re-test. In instances where the original testing took place some time ago, you may want to secure parental consent. Review the results of the re-testing to determine whether there are significant changes that would impact on the students' eligibility for services and/or the content of the students' IEPs. In each instance where eligibility for services and/or content of the students' eligibility or the content of the IEP would be affected, conduct a new eligibility staffing and/or IEP meeting. Please note that all state and federal requirements relative to the conduct of staffings and IEP meetings must be adhered to. Determine whether any students were counted for FTE purposes in October and/or the December 1 child count who were subsequently determined to be ineligible for exceptional student education services. Adjust these counts as necessary. In those instances where a child tested under these conditions has transferred from Walton County School Districts, provide follow-up with the receiving school district to provide guidance in corrective actions necessary for that district to be in compliance. All District School Superintendents received a letter dated January 26, 1999, from Mr. Mosrie, Ms. Goff's superior. Mr. Mosrie's letter reviewed the rules and regulations regarding qualified examiners of intelligence tests. By memo dated January 26, 1999, Greg Centers, advised the Superintendent about the Auditor General's questions concerning Ms. Farrior's employment based on a pre-audit review of the district's records. Mr. Centers noted that Ms. Farrior's temporary teaching certificate expired on June 30, 1998, and had not been renewed. According to Mr. Centers, the district's records did not indicate that Ms. Farrior was otherwise qualified for the school psychologist position. The Superintendent signed this memo on January 29, 1999, acknowledging that the Auditor General's understanding regarding Ms. Farrior's employment status was correct. By letter dated January 29, 1999, Charles Lester, Auditor General, requested the Superintendent to submit a written explanation within 30 days concerning the findings of preliminary audit findings. Attached to the letter was a finding that the district had hired a school psychologist when the district's records did not indicate the basis upon which the employee was determined to be qualified for that position. The Auditor General requested that the district provide an explanation or take corrective action to provide a certified school psychologist for administering tests and assessing placement for ESE students. After receiving the Auditor General's letter, the Superintendent met with Respondent and Ms. Farrior. During the meeting, he asked Ms. Farrior to resign. She refused to comply with his request. Terrica Carlock became the new ESE classroom teacher at Options in January 1999. The district's ESE department was responsible for evaluating and writing new IEPs for ten or twelve of Options' students who needed to be placed in the new classroom on a resource or special assignment basis. Prior to that time, ESE students at Options had been mainstreamed and provided ESE services only on a consultation basis. The IEP meetings at Options needed to be scheduled immediately in order to complete the IEPs before the state conducted a Full Time Equivalent (FTE) count in the first week of February. The district's state funding depends in part on the FTE count. In order to expedite the process, Respondent sent the necessary IEP forms to the principal at Options, on January 25, 1999. She directed the principal to schedule IEP meetings and to notify parents about the meetings. Respondent did not give the principal specific directions about the IDEA notice procedure. The principal of Options sent notices to parents about the IEP meetings by giving the notice forms to the ESE students. Ms. Carlock advised the principal that IDEA required the school to give parents a second notice to determine whether parents wished to participate in the IEP meetings or waive that right. On January 27, 1999, Ms. Carlock assisted the principal in making those calls to parents who did not sign and return the written notice. Very few parents were able to attend the IEP meetings on such short notice. The IEP meetings at Options were scheduled for January 27-29, 1999. Respondent intended to serve as the Local Education Agency (LEA) representative at the meetings. However, she was unable to attend several of the IEP meetings because of a scheduling conflict. Respondent told Ms. Carlock to continue with these meetings despite the absence of an LEA representative. Respondent told Ms. Carlock to complete the LEA's IEP paperwork even though Ms. Carlock had not been trained for that responsibility. As to the IEP meetings that Respondent was able to attend, she occasionally left the meetings to answer phone calls, directing Ms. Carlock to continue the meetings in her absence. By memorandum dated January 29, 1999, Ms. Carlock advised Respondent that she did not approve of the way the Options' IEPs were conducted. Specifically, Ms. Carlock complained that parents did not have sufficient notice of the meetings. Ms. Carlock did not feel comfortable conducting the meeting without an LEA representative as required by IDEA. She did not think she was qualified to complete the IEP paperwork, which according to Respondent was the responsibility of the LEA representative. Ms. Carlock sent a copy of her memorandum to the Superintendent and Petitioner's members. By memorandum dated January 30, 1999, Respondent attempted to explain to the Superintendent why she had not been present at the Options' IEP meetings. She accused Ms. Carlock of providing the Superintendent with erroneous information. Respondent criticized Ms. Carlock for complaining to the Superintendent and Petitioner without following the proper grievance procedure. Respondent requested that the Superintendent reprimand Ms. Carlock for making misrepresentations of fact. The Superintendent subsequently advised Ms. Carlock to stay within the chain of command when filing complaints. By letter dated February 2, 1999, Patricia Howard, DOE's consultant for School Psychology, advised the Superintendent that he had two options for providing intellectual evaluations to ESE students. First, he could employ a full-time, certified psychologist or contract with a privately licensed psychologist/school psychologist to administer and interpret all tests, including intellectual, achievement, process, emotional, and adaptive behavior. Second, he could employ a part-time, certified school psychologist or privately licensed psychologist/school psychologist to administer and interpret all tests of intelligence. In the latter case, the intellectual test results could be merged with assessments administered by other staff members that the district determined to be qualified to administer achievement, process, emotional, and adaptive behavior assessments. On February 5, 1999, the Superintendent sent the DOE certification office a letter requesting the issuance of Ms. Farrior's second two-year temporary certificate in the subject area of psychology. The letter stated that the request was based on the fact that Ms. Farrior did not graduate from an approved teacher education program. By letter dated February 8, 1999, Respondent requested Tom Gallagher, Commissioner of Education, to assist her with problems she was having as the district's ESE Coordinator. On February 9, 1999, DOE issued Ms. Farrior's temporary/non-renewable certificate to teach psychology in grades six through twelve. The certificate was effective retroactively to July 1, 1998, through June 30, 2000. On February 9, 1999, Ms. Carlock was in the ESE building at the close of the school day. She was sitting in the office of Samantha Nelson, an ESE Resource Specialist. Ms. Nelson was checking her electronic mail when Ms. Carlock noticed Respondent's husband standing in the doorway to the office. Respondent's husband was holding a video camera. The camera was pointed toward Ms. Carlock and Ms. Nelson; the red recording light on the camera was blinking. Ms. Nelson confronted Respondent's husband regarding his violation of her privacy. She and Ms. Carlock then reported the incident to the Superintendent. The Superintendent immediately went to the ESE building to talk to Respondent's husband. Respondent's husband explained that he had not intentionally taped the conversation of Ms. Carlock and Ms. Nelson. According to Respondent's husband, he was testing his video equipment in preparation for taping the school board meeting that evening. Upon learning that Respondent was not present and had no knowledge of her husband's activities, the Superintendent advised Respondent's husband that videotaping of district employees in their offices was not allowed. He told Respondent's husband to wait in Respondent's office in the future. Ms. Nelson subsequently provided the Superintendent with a written complaint, informing him that she intended to file a grievance concerning the matter. As a result of that grievance, the Superintendent agreed that he, and not Respondent, would evaluate Ms. Nelson's job performance. At the school board meeting on February 9, 1999, the Superintendent recommended that Petitioner contract with FSU for $200.00 per intellectual evaluation. The Superintendent wanted Petitioner to authorize 49 evaluations. Petitioner approved this request for an unlimited number of evaluations. At the February 9, 1999, school board meeting, Petitioner rejected the Superintendent's request to advertise for an additional school psychologist pursuant to an approved position description with an annual salary of $50,000.00. By memorandum dated February 11, 1999, Respondent advised the Superintendent that a copy of her husband's February 9, 1999, videotape would not be made available until an attorney had an opportunity to review Ms. Nelson's complaint. Respondent subsequently provided the Superintendent with a copy of the videotape. The Superintendent never reviewed the tape because he believed he had effectively resolved the matter. By letter dated February 17, 1999, Respondent requested the Superintendent to join her in seeking Commissioner Gallagher's assistance in investigating the problems she faced as ESE Coordinator. Respondent enclosed a copy of her letter to Commissioner Gallagher. On or about February 15, 1999, the speech therapist on maternity leave from BES elected not to return to work. DCH continued to provide speech therapy services even though Petitioner had not yet approved a contract for those services. DHC sent the district the following invoices: (a) invoice dated December 28, 1998, in the amount of $4,390.35, for Fredda White-Crenshaw's services as a supervisor during the month of December 1998, approved by Respondent in the amount of $3,620.35; (b) invoice dated December 28, 1998, in the amount of $2,100.00, for the services of Marilyn Marshall at West Defuniak Elementary during the month of December 1998, approved by Respondent as submitted; (c) invoice dated December 28, 1998, in the amount of $4,066.85, for the services of Julie Lange during the month of December 1998, approved by Respondent in the amount of $2,980.60; and (d) invoice dated December 28, 1998, in the amount of $2,553.02, for the services of Kathy Lafever during the month of December 1998, approved by Respondent in the amount of $1,466.77. The total amount invoiced by DHC for December services was $13,109.87. Respondent reviewed these invoices and compared them to the "outsource therapy labor logs" maintained by DHC staff. She approved or made adjustments on February 11, 1999, verifying payment due to DHC in the total amount of $10,167.72. She then sent the invoices to Mr. McCall's office for payment. Upon receipt of the invoices, Mr. McCall compared them to the sign-in/sign-out logs maintained by the individual schools or site where DHC provided services. He determined that DHC's service providers recorded more time related to student services on their "outsource therapy labor logs" than was reflected on the sign-in/sign-out logs maintained by the schools. Mr. McCall reduced the payment for DHC's December 1998 services to the amount reflected on the sign-in/sign-out site- based logs. By memorandum dated February 19, 1999, Mr. McCall directed his office staff to pay DHC for its December invoices in the total amount of $7,674.39, or $2,493.33 less than the total amount approved by Respondent. Despite these reductions in payment, DHC continued to provide services to ESE students pursuant to the contracts. By letter dated February 25, 1999, John A. Stewart, Deputy Commissioner for Educational Programs, responded to Respondent's letter to Commissioner Gallager. Mr. Stewart stated that DOE's Bureau of Instructional Support and Community Services would continue to work with the district to address compliance and programmatic issues previously identified. As to Respondent's concerns over working conditions that were unsatisfactory, Mr. Stewart stated that the DOE could not intervene in personnel matters, which are within the purview of local officials. The Superintendent wrote a letter to Commissioner Gallagher on or about March 1, 1999. The letter refers to the pre-audit critique requested by Respondent and performed by DOE's two-member team in the fall of 1998. The letter refers to significant deficiencies in IEPs developed during the 1997/1998 school year. The Superintendent requested a "task force of supplementary pre-audit personnel" to provide technical assistance in preparing for an upcoming audit of ESE records from the 1997/1998 school year. In a memorandum dated March 22, 1999, DOE advised Ms. Farrior that she needed the following in order to be certified as a school psychologist: (a) 27 additional semester hours of graduate credit in school psychology; (b) graduate credit should include six semester hours in a supervised school psychology internship, approved by DOE, at an elementary or secondary school; and (c) official documentation of a passing score on the school psychologist subject area test. At the time that Ms. Farrior received the March 22, 1999, statement of eligibility from DOE, she had not submitted her updated transcript from Troy State University, showing graduate credit received in 1992 and 1993. It did not include the graduate courses at the University of West Florida and Capella Distance Learning University, in which she was then enrolled. Therefore, DOE was not aware that Ms. Farrior had completed some of the required graduate credit course work. In March of 1999, Ms. Holder helped Ms. Farrior complete her application packet for enrolling in Capella Distance Learning University's school psychology internship program. Ms. Holder agreed to act as intern supervisor for Ms. Farrior. On March 23-25, 1999, George Pesta, Juvenile Justice Education Specialist at FSU, conducted a quality assurance review at North American Family Institute (NAFI) in Walton County. NAFI is a private, not for profit, Level Six and Level Eight facility. It provides juvenile delinquents enrolled in the Serious Habitual Offender Program with residential services in an Intensive Halfway House. NAFI provides these services pursuant to a contract with the Department of Juvenile Justice. NAFI provides its clients with educational services under a contract with the district. The district provides ESE services to NAFI's clients. Mr. Pesta's review included an audit of NAFI's ESE records. Respondent had signed five IEPs for NAFI students; these IEPs were in compliance with IDEA. One IEP that was developed before Respondent became ESE Coordinator was incomplete; it lacked goals and objectives. At a school board meeting on March 30, 1999, the Superintendent requested Petitioner's approval to advertise for a certified school psychologist for ten months plus one month (10+1) with a base salary of $33,000.00. Petitioner approved the recommendation with the base salary subject to the collective bargaining agreement. In 1999, the parent company of DHC created a new corporation to provide outsourcing therapy services. The new corporation, Beverly Health and Rehabilitation Services, Inc. (Beverly Rehabilitation), assumed DHC's obligations under the written contracts with Petitioner. In March 1999, Beverly Rehabilitation gave notice that it would no longer provide Petitioner with physical therapy and occupational therapy services. It was not economically feasible for Beverly Rehabilitation to provide these services under Petitioner's interpretation of the written contracts. Beverly Rehabilitation continued to provide Petitioner with a speech pathologist supervisor and speech therapy services pursuant to the approved written contracts. In a memorandum dated April 5, 1999, Respondent requested the Superintendent to rehire Ms. Farrior as an ESE staff employee for the 1999/2000 school year. Respondent wanted Ms. Farrior to continue working as an "evaluation specialist" until she could perform all of the functions of a certified school psychologist or an intern in an approved school psychology internship program. Respondent knew there was no position description for an evaluation specialist approved by Petitioner. She also knew that the Superintendent could not recommend the hiring of a staff member for which there was no approved position. Respondent did not request the Superintendent to recommend that Petitioner create such a position. At a school board meeting on April 15, 1999, the Superintendent recommended that Petitioner rehire Ms. Farrior as an ESE employee. Neither the Superintendent nor Respondent, who was present at the meeting, informed Petitioner that they were attempting to have Ms. Farrior rehired for a position that did not exist. The Superintendent's intent was for Ms. Farrior to fill the school psychologist position for which she was not certified. The Superintendent understood that Ms. Farrior would be enrolled in an internship program during the 1999/2000 school year. He also understood that until Ms. Farrior could fulfill the duties of a school psychologist, other members of the ESE staff would have an increased workload. Petitioner voted to reject the Superintendent's recommendation. Sometime after April 16, 1999, Petitioner approved the contract for Beverly Rehabilitation to provide BES with a speech/language therapist. The contract terms were accepted as originally proposed with Petitioner paying $440.00 per day for all services including travel time and mileage. In a memorandum dated April 18, 1999, Respondent advised the Superintendent that due to Petitioner's failure to renew Ms. Farrior's annual contract, the district would not have a staff member filling the school psychologist position at the end of the school year. Respondent stated that the district was in "dire need of hiring two individuals [as school psychologists] in order to adequately serve the needs of the ESE students of Walton County." Respondent stated that she intended to address this need at the next school board meeting. However, Respondent never requested the Superintendent to nominate a specific individual to be employed as school psychologist other than Ms. Farrior. Respondent admits that it was her duty to make this recommendation to the Superintendent. On April 19, 1999, Respondent sent the Superintendent a memorandum inquiring about the current position status of Ms. Jones. Respondent needed the information in order to prepare an organizational chart requested by the Superintendent. Respondent did not know whether Ms. Jones was a member of the ESE department or the student services department. Respondent's memorandum stated that Ms. Jones was serving in the capacity of Child Find Specialist in a position that Petitioner had not approved. In May 1999, Capella Distance Learning University approved Ms. Farrior's application to enroll in its school psychologist internship program with Ms. Holder as her supervisor. The internship program was scheduled to begin the next quarter on October 4, 1999. On May 12, 1999, Respondent sent the Superintendent a memorandum concerning Ms. Jones' annual job performance evaluation. Respondent did not want to write the annual evaluation as requested because Ms. Jones was not an ESE staff member under the organizational chart. Respondent recommended that Ms. Jones be transferred to a position with no connection to ESE students. At the May 13, 1999, school board meeting, the Superintendent recommended that Petitioner approve a position description for a school psychologist for ten months plus one month (10+1) under a salary schedule. The Superintendent requested permission to advertise for this position the following Monday. The Superintendent reminded Petitioner that the district was entitled to two school psychologists and that he would like to advertise for both of them. After much discussion, Petitioner voted to approve the advertisement of two school psychologist positions for ten months plus two months (10+2) under a salary schedule, one to be filled immediately and one to be filled later. At the May 13, 1999, school board meeting, Petitioner voted to terminate the contract with Beverly Rehabilitation for a speech/language pathologist supervisor. Ms. White-Crenshaw had been providing this service. At the May 13, 1999, school board meeting, Petitioner rejected the Superintendent's recommendation to renew Respondent's annual contract for the position of ESE Coordinator by a vote of three to two. Ms. Atkinson and Mr. Davis voted to rehire Respondent. Mr. Jones rejected Respondent's nomination based on her conduct as follows: (a) Respondent's failure to provide telephone and fax logs in a timely fashion; (b) Respondent's misrepresentation regarding Special Agent Dill's directive not to release the requested records; (c) Respondent's failure to explain the details of her oral agreement with DHC regarding charges for the service providers' travel time before recommending that Petitioner approve the contract; (d) Respondent's failure to verify the charges on the second batch of DHC invoices by comparing them with the site-based sign-in/sign-out logs; (e) Respondent's failure to check Ms. Farrior's certification credentials before recommending that Petitioner employ her for the 1998/1999 school year; (f) Respondent's recommendation that the Superintendent nominate Ms. Farrior for employment in the 1999/2000 school year when Respondent knew that Ms. Farrior was not certified as a school psychologist; and (g) Respondent's failure to recommend a certified school psychologist for the 1999/2000 school year after learning that Ms. Farrior would not be rehired. Mr. Richardson voted not to renew Respondent's contract based on her conduct as follows: (a) Respondent's recommendation of an uncertified school psychologist for the 1998/1999 school year; (b) Respondent's recommendation of the same uncertified school psychologist for the 1999/2000 school year; (c) Respondent's failure to verify the accuracy of the charges in the first and second batch of DHC invoices; and (d) Respondent's failure to provide telephone logs in a timely fashion and subsequent misrepresentation regarding Special Agent Dill's directive not to release the records. Mr. Barnhill voted to reject Respondent's nomination. He based his vote on Respondent's failure to present the proposed DHC/Beverly Rehabilitation contract for speech services at BES in a timely fashion. At the school board meeting on May 25, 1999, the Superintendent made a second attempt to nominate Respondent as ESE Coordinator for the 1999/2000 school year. Petitioner rejected her nomination for the second time. On June 30, 1999, Respondent's and Ms. Farrior's annual contracts expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rejecting the Superintendent's nomination of Respondent as ESE coordinator for the 1999/2000 school year. DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background By application dated March 29, 1989, petitioner, Stuart B. Novick, sought licensure by examination as a psychologist. The application was filed with respondent, Board of Psychological Examiners (Board), which has statutory authority to license and regulate the psychologist profession. In action taken act its August 1989 meeting, the Board voted to deny the application on the ground petitioner did not satisfy the educational and work experience requirements imposed by statute and rule. In addition, the Board concluded that Novick had not submitted proof of completion of an educational course concerning HIV and AIDS, as required by agency rule. This decision was conveyed to Novick in an order issued by the Board on September 15, 1989. This proceeding involves petitioner's challenge of that preliminary decision. The specific objections to licensure will be dealt with separately in the findings below. Educational Requirements The Board's preliminary decision made the following findings pertinent to petitioner's education: Your doctoral program was not completed at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education or an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada. In addition, your doctoral program was not approved by the American Psychological Association as required by Chapter 490.005(1)(b), Florida Statutes and Chapter 21U-11.006(1)(b)1., 9., and 10., Florida Administrative Code. Petitioner received a bachelor of arts in political science from the University of California - Los Angeles in December 1970. He then obtained a masters degree in educational psychology and guidance from California State University Northridge in January 1974. In the summer of 1977 he enrolled at California Graduate Institute (CGI), an institution of higher learning in Los Angeles. After attending CGI fulltime for approximately five years, Novick was awarded a doctorate in psychology in October 1982. At issue in this case is whether CGI and its psychology program meet the requirements of the law for licensure. According to applicable statutory requirements, petitioner was required to submit satisfactory proof that he had received a doctoral degree with a major in psychology from a program which at the time petitioner was enrolled and graduated was accredited by the American Psychological Association (APA). As to this requirement, Novick conceded that when he attended CGI from 1977 until 1982, that institution was not fully accredited by the APA. Therefore, petitioner did not meet that requirement. In lieu of satisfying the requirement described in the preceding paragraph, petitioner was authorized by law to submit satisfactory proof that he received a doctoral degree in psychology from a program which at the time petitioner was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the APA. In this regard, the more persuasive evidence, including the program analysis form submitted by petitioner with his application, shows that petitioner's doctoral program did not require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. The foregoing educational requirements are embodied in Rule 21U-11.006(1)(b)10., Florida Administrative Code, and must be satisfied in order to show comparability. In view of these deficiencies, it is found that petitioner failed to satisfy this part of the requirements for licensure. In addition to the foregoing comparability requirement, petitioner was obligated to show that his education and training in psychology wash received in an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. As to this requirement, petitioner conceded that CGI's psychology program was not accredited by a recognized regional accrediting body. That admission is corroborated by a letter dated May 15, 1989 from the chairperson of CGI's department of psychology to the Board. Therefore, this criterion was not met. Work Experience In its proposed agency action, the Board cited the following concerns with petitioner's work experience: You have not completed the two years or 4000 hours of supervised experience in the field of psychology as required by Chapter 490.005(1)(c), Florida Statutes, and Chapter 21U-11.006(1) (c), Florida Administrative Code and in compliance with Chapter 21U-17, Florida Administrative Code. The experience under Dr. Milana was experience as a marriage and family therapist, rather than as a psychological resident in compliance with Chapter 21U-17, Florida Administrative Code. As explained further at hearing by the Board's executive director, although petitioner's "supervising psychologist verification form" facially complied with the required work experience in the field of psychology, the Board was concerned with the fact that Novick has been licensed as a marriage and family therapist (MFT) since September 1986, was employed as a MFT when much of the work experience was obtained, and may have rendered services in that capacity rather than as a psychological resident. After graduation from CGI, petitioner was employed as an outpatient therapist by Northside Centers (the center), a mental health clinic in the Tampa area. During the course of that employment, petitioner obtained approval from Dr. Suzette Milana, a licensed psychologist, to train under her supervision as a psychological resident at the center. According to petitioner, as confirmed by Dr. Milana's testimony as well as documents in his application file, he worked, at least part of the time, under Dr. Milana's supervision from July 1984 until the application was filed. The supervising psychologist verification form completed by Dr. Milana reflects that Novick was supervised for 228 weeks, rendered approximately 2200 hours of psychological services to clients, and was employed by the center for a total of 4880 hours. According to Dr. Milana, petitioner is now competent to perform without supervision adult, adolescent and child treatment. Doctor Milana verified that, during his supervised period of employment, petitioner participated in the following activities: evaluation and assessment, intake activity, formulation of treatment plans, treatment intervention, case management and crisis intervention, all being activities normally engaged in by psycholgical residents. However, Novick did no psychological testing since the clinic already had an employee assigned to that job. Even so, there was no evidence to establish that psychological testing is a current required part of a resident's work experience. Doctor Milana described petitioner's supervision to be the same that she received when she was fulfilling her work experience requirement for licensure. By agency rule effective October 3, 1985, the Board imposed the requirement that, during one's training period, an applicant shall be known by the title "psychological resident". In addition, a requirement was added that all business cards, signs, stationery and the like naming the applicant must also bear the name and affiliation of the supervisor/associate. Finally, each resident is obliged to advise each client at the time services are initiated of his status as a resident, the requirements of a supervised status and of the name of his supervisor. The requirement concerning the disclosure of the supervisor's identity is necessary since the supervisor must ultimately take full responsibility for the resident's patients and their treatment. During the period after October 1985 and until the application was filed, petitioner continued to use business cards issued by the center which reflected his title as being a "marriage and family therapist" and did not disclose the name of his supervisor. According to petitioner, he never indicated on any reports or insurance forms that he was a psychological resident. Further, Dr. Milana did not co-sign any reports. Although petitioner told all of his patients that he was an outpatient therapist or a MFT, he told only "some" that he was working under the supervision of Dr. Milana. Except as to these departures from the rule, petitioner's training was in conformity with the Board rule. Course in HIV and AIDS The Board's order noted that Novick had not furnished "proof of completion of an educational course concerning HIV and AIDS in compliance with Chapter 21U-21, Florida Administrative Code". According to Rule 21U- 21.001, Florida Administrative Code (1989), each person applying for licensure subsequent to July 1, 1989 shall be required to complete an educational course approved by the Board and consisting of education on the transmission, control treatment and prevention of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome with emphasis on appropriate behavior and attitude change. Novick did not submit proof of completion of such a course with his initial application. However, at hearing he stated he had completed a Board approved course at a local hospital in April 1989 and shortly thereafter forwarded a copy of his diploma to the Board. Although no documentary proof was submitted at hearing to support this claim, it was not contradicted by the Board, and it is accordingly found that Novick has satisfied this part of the licensure requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner for licensure as a psychologist by examination be DENIED. DONE and ORDERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1236 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990.
The Issue The issue posed for decision herein is whether or not the Petitioner meets the educational requirements for entitlement to licensure as a psychologist. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and consideration of the Respondent's proposed memorandum, I hereby make the following relevant:
Findings Of Fact Petitioner made application to Respondent to obtain a psychology license by exception pursuant to the provisions of Section 1 of Chapter 81-235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) At Petitioner's request, Respondent (herein sometimes referred to as the Board of Psychological Examiners or Board) reconsidered his application. It was reaffirmed that his doctoral degree was not from a program primarily psychological in nature because the program did not include at least one course in biological bases of behavior, cognitive-affective bases of behavior, individual behavior, or methodology for the application of psychological knowledge as required by sub-paragraphs (a), (b), (4), and (f), of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) Respondent presented the testimony of board member Edward Murray, Ph.D., who was received as an expert in these proceedings in the subject matter of psychology. In order to receive a license in Florida, an applicant, pursuant to Chapter 490, Florida Statutes, must receive a degree from a program primarily psychological in nature. The Board, in carrying out the statutory requirements, promulgated Rule 21U-11.05 to determine whether or not a program was primarily psychological in nature. In so doing, the Board has set forth a requirement that a full course be devoted entirely to the content of the following areas: (a) biological bases of behavior; (b) cognitive-affective bases of behavior; (c) social bases of behavior; (d) individual differences; (e) statistics; and (f) methodology and application of psychological knowledge. (TR-49) Without reciting the Petitioner's testimony, in hoc verba, it suffices to say that the Petitioner has taken several courses which touch upon some of the areas required in the above-referred rule (21U-11.05, Florida Administrative Code). However, Petitioner failed to establish that he had taken a class which was primarily in the "biological bases of behavior" as was required. Additionally, Petitioner failed to establish that he had taken a course which primarily dealt with the cognitive bases of behavior which was required in order to satisfy the requirements of subsection (2)(b) of Rule 21U-11.05, Florida Administrative Code. Further, Petitioner, while having taken several sociology courses, failed to satisfy the requirement of having taken a course which dealt primarily with individual behavior. Finally, Petitioner failed to satisfy the requirement of establishing that he had taken a course to satisfy the requirement of research methodology for the application of psychological knowledge. The Board requires one individual course in each specific area set forth in Rule 21U-11.05 and does not permit an applicant to piece together parts of several courses to satisfy the requirements. (Testimony of Dr. Murray, TR 51-54) Respondent's Position Respondent graduated from the University of Illinois with a Ph.D. in Social Psychology. Respondent's position is that, based on the numerous courses that he has taken, both graduate and post-graduate, including his years of experience in the counseling and advisory areas, he more than satisfies the requirements of Rule 21U-11.05, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a psychologist by exception be DENIED. RECOMMENDED this 29th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1983.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Employment Charge of Discrimination (Complaint) filed on March 17, 2016.
Findings Of Fact The record in this case is somewhat sketchy. Petitioner is a 51-year-old African-American female. In 2015, Petitioner was a client of Career Source Central Florida, a temporary employment agency which has a contract with Manpower, a staffing agency, to place clients in jobs on a temporary basis. Respondent is a corporation which provides a variety of services in the mental health field. The company employs persons of all national origins. One source of employees is persons referred by Manpower. Ms. Guzman is Respondent's Mental Health Targeted Case Manager Program Manager/Executive Consultant who interviewed Petitioner for a temporary position with her company. On October 19, 2015, Petitioner was hired by Respondent for 90 days as an intern in human resources. Under the terms of employment, Respondent could terminate Petitioner at any time, even the first day, if she was not performing in a satisfactory manner. If Petitioner was deemed to be a good candidate for employment, Respondent had the option to employ her on a permanent basis after her probationary period ended. Petitioner acknowledges that during her tenure with Respondent, her salary was paid by Manpower. However, Manpower was not named as a co- respondent in the Complaint. When she interviewed for the position, Petitioner was told by Ms. Guzman that the organization was bilingual, all employees were required to speak English, but she would hear a lot of Spanish being spoken. Petitioner informed Ms. Guzman this would not be a problem. She also informed Ms. Guzman that she did not speak Spanish. Ms. Guzman told her this would not be a problem. On December 8, 2015, Ms. Guzman informed Petitioner she was being terminated. According to Ms. Williams, she was told by Ms. Guzman that she was being terminated because she could not speak Spanish and her rate of pay did not match her level of experience. She was also told her job performance was less than satisfactory. Ms. Williams was upset because she had not been previously warned that her job performance was less than satisfactory or that speaking Spanish was a requirement. She also observed several other employees, including one medical doctor, who did not speak Spanish, but were allowed to use other employees as interpreters, when needed. According to Ms. Guzman, the reason for Petitioner's termination was poor job performance, and not her inability to speak Spanish. For example, Ms. Guzman noted that Petitioner had difficulty in spelling English words and she frequently needed assistance from other employees in completing her job- related tasks. Discharging Petitioner for this reason was consistent with her original terms of employment. There was no evidence, direct or circumstantial, that Petitioner was terminated because she was an African-American or because of her national origin, or that Respondent's decision to terminate Petitioner was motivated by unlawful discriminatory intent. Petitioner is currently employed by the Osceola County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 27th day of March, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 27th day of March, 2017.
The Issue Whether Petitioner's application for licensure as a psychologist should be approved, pursuant to Chapter 490, Florida Statutes. This proceeding arose as a result of Respondent's provisional denial of Petitioner's application for licensure by endorsement as a psychologist under Chapter 490, Florida Statutes, and Chapter 21U-11, Florida Administrative Code, based upon Respondent's determination that Petitioner did not hold a license in another state which was obtained by requirements substantially equivalent or more stringent to requirements for licensure as a psychologist in the State of Florida. At the commencement of the hearing, Petitioner was advised of his rights in administrative proceedings. He indicated his understanding of such rights and elected to represent himself at the hearing. Petitioner testified in his own behalf and submitted 4 exhibits in evidence. Respondent presented the testimony of Dr. Frank Biasco, a member of the Board of Psychological Examiners. Joint Exhibit 1 representing the application file of Petitioner was also received in evidence.
Findings Of Fact Petitioner Henry S. Tugender, Morganville, New Jersey, filed an application for licensure by endorsement as a psychologist with Respondent Board of Psychological Examiners on February 22, 1982. By letter of November 4, 1982, the Board's executive director informed Petitioner that his application had been denied by the Board pursuant to Rule 21U-11.04, Florida Administrative Code, because he did not hold a license in another state obtained by requirements substantially equivalent or more stringent to requirements for licensure as a psychologist in the State of Florida. Petitioner thereafter requested an administrative hearing. (Testimony of Tugender, Joint Exhibit 1) Petitioner received a master's degree in clinical psychology from Long Island University in 1959. He pursued doctoral studies in the clinical psychology program of Arizona State University from 1962 to 1964. In 1970, he obtained a Doctor of Philosophy degree from East Coast University, Dade City Florida, with a major in psychology. He was in an "external" degree program that involved a minimum residency during two summers and and submission of a dissertation. The university was not accredited by the American Psychology Association (APA) and is no longer in existence. (Testimony of Tugender, Joint Exhibit 1, Petitioner's Exhibit 1) Petitioner is licensed to practice psychology in three states and the District of Columbia. He was licensed in New Jersey in 1968, Illinois in 1971, Pennsylvania in 1975, and the District of Columbia in 1973. At the time of licensure, none of the three states or the District of Columbia required a doctoral degree to obtain a license. He qualified in each instance by having a master's degree, plus a varying number of years of experience. (Testimony of Petitioner, Joint Exhibit 1) At the time Petitioner was licensed in New Jersey, Pennsylvania, Illinois and the District of Columbia, the licensure requirements of those states were not substantially equivalent to or more stringent than those now contained in Chapter 490, Florida Statutes, in that they did not require a doctoral degree with a major in psychology from a school with an APA approved program, or from a school maintaining a standard of training comparable to those universities having programs approved by the APA or the doctoral psychology programs of the state universities. Rifle 21U-11.04(2)(a), Florida Administrative Code, sets forth criteria that must be met in all respects in order to demonstrate that the doctoral program meets the comparability requirements established by the rule. Petitioner presented no evidence concerning the content of his doctoral program at East Coast University, but conceded at the hearing that the program did not meet a number of the requirements specified in the rule. (Testimony of Petitioner, Biasco) Petitioner seeks to relocate to Florida for professional and health reasons. He currently is in private practice in New Jersey. He specializes in hypnosis and has been active in that field over many years. At the time of hearing, he held a valid Florida Department of Education teacher's certificate in psychology. He is also a certified school psychologist in the states of Pennsylvania and New Jersey. He is affiliated with a number of professional organizations and is listed in the National Register of Health Service Providers in Psychology. In 1974-75, he served as a consultant to the Florida Parole and Probation Commission, and in the Department of Corrections. (Testimony of Petitioner, Joint Exhibit 1, Petitioner's Exhibits 1-4)
Recommendation That Petitioner's application for licensure as a psychologist by endorsement be DENIED. DONE and ENTERED this 14th day of July, 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 14th day of July, 1983. COPIES FURNISHED: Jane Raker, Executive Director Board of Psychological Examiners 130 North Monroe Street Tallahassee, Florida 32301 Randy Holland, Esquire Department of Legal Affairs The Capitol - 1601 Tallahassee, Florida 32301 Henry S. Tugender 35 Wickatunk Village Morganville, N.J. 07751
The Issue Whether Respondent violated Section 490.009(2)(c), Florida Statutes (2000).
Findings Of Fact The Department is the state agency charged with regulating the practice of psychology pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 490, Florida Statutes. Respondent, during all times material to these proceedings, was a licensed psychologist in the State of Florida. He continues to be licensed in the State of Florida. His license identification is PY 2079. He practices psychology in Pensacola, Florida. Respondent went to the Bahama Bay Club, a condominium located in Gulf Breeze, Florida, on July 19, 2000. In the vicinity of the swimming pool located on the condominium premises, he removed his penis from his trousers and began shaking it in the presence of two women who were in or near the pool. Respondent whistled at the two women who then observed him. One of the women was Beth Rico, who is an airline pilot. The other woman was Ms. Rico's 19-year-old niece who is a student at Louisiana Tech University. Ms. Rico yelled at Respondent who thereafter placed his penis in his trousers and retreated. Ms. Rico told Respondent to get off the property and subsequently pursued Respondent. By chance, Sergeant Stephen Neff of the Gulf Breeze, Florida, Police Department, was in the immediate area of Ms. Rico and Respondent. Ms. Rico told Sergeant Neff that Respondent had exposed himself to her niece and to herself. Sergeant Neff pursued Respondent off the premises of the Bahama Bay Club. Respondent dove into some azalea bushes. Sergeant Neff attempted to apprehend Respondent by grabbing him. Respondent attempted to extricate himself. The two eventually exited the azalea bushes into the parking lot of a shopping plaza. There was a continuing struggle which ended only after officers arrived from the Gulf Breeze Police Department subsequent to calls for help made by citizen bystanders. It is apparent that Respondent's motivation was to escape rather than harm Sergeant Neff. However, as a result of Respondent's efforts to resist arrest, Sergeant Neff received abrasions and cuts to his hands, knees, elbows, and feet. On December 20, 2000, during an appearance before the Circuit Court of Santa Rosa County, Respondent was placed on probation for a period of one year subsequent to pleading guilty to the misdemeanor of battery and resisting a law enforcement officer without violence and after pleading nolo contendere to the misdemeanor of indecent exposure in a public place. Adjudication was withheld for the offense of battery and resisting a law enforcement officer without violence. He was adjudicated guilty of indecent exposure in a public place. Expert testimony Carolyn Stimel, Ph.D., is a psychologist in Tallahassee, Florida. She is board-certified in forensic psychology. She is an expert in the field of psychology and is an expert in treating sexual predators. Prior to testifying, she reviewed the Administrative Complaint, the response to the investigative complaint, and a copy of a psychological evaluation on Respondent prepared by Dr. Larry Neidigh completed on June 11, 2001. She also reviewed the investigative report prepared by the Agency for Health Care Administration (AHCA). She did not personally examine Respondent. Dr. Stimel noted that Dr. Neidigh diagnosed Respondent as being afflicted with exhibitionism. Exhibitionism is a subset of paraphilia and describes someone who derives sexual excitement or satisfaction from displaying their genitals to unsuspecting or unwilling observers. Dr. Stimel opined that exhibitionism may be treated but recidivism is high. There are some people who do not respond at all to treatment. About 40 percent of persons with one paraphilia, such as exhibitionism, are likely to have another, but different paraphilia. However, Dr. Stimel stated that there was no evidence of this in the case of Respondent. It is Dr. Stimel's opinion that a psychologist needs integrity, good judgment, and emotional stability in order to properly perform the duties of a psychologist. It is Dr. Stimel's opinion that Respondent is not mentally fit to practice psychology at this time. Dr. Stimel believes that someone having psychological, emotional, or sexual problems which affect their ability to work effectively with patients is not mentally fit to properly practice psychology. It is Dr. Stimel's opinion that there is a nexus between the practice of psychology and a conviction of indecent exposure and a diagnosis of paraphilia. The expert testimony of Dr. Stimel, taken as a whole, is credible. Larry Neidigh, Ph.D., of Orange Park, Florida, conducted a psychological evaluation of Respondent on June 6, 2001, and made a report dated June 11, 2001. Dr. Neidigh reviewed documents pertinent to the matter and administered a five-hour battery of psychological tests to Respondent. Dr. Neidigh's diagnostic impression was exhibitionism. He opined that there were no indications of any mental abnormality or psychopathology which would indicate that he is not competent to perform his duties as a psychologist. It is Dr. Neidigh's opinion that the conviction does not directly relate to the practice of his profession or his ability to practice his profession. The report of Dr. Neidigh is succinct. It is also helpful, but Dr. Neidigh did not appear at the hearing and all of the factual underpinnings which caused him to formulate his conclusions were not available. Additionally, there is a substantial question as to whether certain of the tests administered by Dr. Neidigh were helpful in understanding Respondent's situation. Accordingly, the information supplied by Dr. Neidigh is considered less persuasive than that provided by Dr. Stimel. James Burt Meyer, Ph.D., is a psychologist who also has a law degree. He has done post-doctorate work in two different areas of psychology. He practices forensic psychology, and he is a professor at Florida State University. He frequently conducts training workshops addressing ethical issues in psychology, and has worked in the area of assessing and treating juvenile sex offenders. He is an expert in psychology. Dr. Meyer did an extensive document review in the case of Respondent and conducted interviews of both the Respondent and his wife. He engaged in a very careful review of the Florida Psychological Services Act with specific reference to Section 490.009(2)(p), Florida Statutes, which addresses the issue of a psychologist's fitness to practice the profession. Dr. Meyer believes there are three areas which should be considered in Respondent's case. The first area addresses whether the offender admitted that he had committed a sexual offense and whether he accepted responsibility for that act. Dr. Meyer believes that acknowledging that one has a problem is an indication that rehabilitation is probable. He noted that Respondent acknowledged that he had exposed himself. The second area is whether Respondent expressed a desire to stop his behavior. Respondent expressed remorse for his behavior and said that he wished to make amends. He informed Dr. Meyer that he had written letters to the two women and the police officer expressing his regret. The third area is whether the offender expressed a desire for treatment. Dr. Meyer did not discuss what, if any, treatment Respondent sought nor is there any evidence in the record which indicated that Respondent sought treatment. In an effort to formulate an opinion as to whether the act in which Respondent engaged on July 19, 2000, was directly related to the practice of psychology, he also consulted the McGrath article, consulted his own library of psychology law and ethics, and reviewed the definition of serious crimes in the National Registry of Health Service Providers (National Registry). Upon a review of all of the foregoing material and after considering all of the other information available to him, Dr. Meyer concluded that Respondent's behavior did not rise to a level where a chronic abuse of power between patient and therapist might occur. He opined that there was no direct relation between Respondent's exhibitionism and his practice of psychology. Dr. Meyer further noted that indecent exposure was a misdemeanor and was not the type of crime that would cause a psychologist to be removed from the National Registry. While he opined that Respondent's behavior suggested a great lapse in moral consciousness, it did not extend to exhibiting a depraved mind. Dr. Meyer agreed with Dr. Stimel when she stated that the recidivism rate for exhibitionism ranges from zero to 70 percent. Dr. Meyer also opined that a person could compartmentalize his behaviors and stated that Respondent could compartmentalize his professional life and his personal life so that aberrant behavior in his personal life might not affect his performance in his professional life. Dr. Meyer further noted that exhibitionism is a crime usually committed by young men, that men over 40 rarely practiced exhibitionism, and that since Dr. Meyer is about 55 years of age, he is less likely to engage in that kind of behavior than are younger men. In discussing the McGrath article, it was pointed out that about 35 percent of incarcerated rapists and child molesters engaged in hands-off aberrant sexual behavior, like exhibitionism, prior to moving into hands-on offenses such as rape. Dr. Meyer stated that he did not believe that would be the case with Respondent. Dr. Meyer's testimony was informative; however, he stated that a key indicator of rehabilitation was seeking treatment, but there was no evidence that Respondent sought treatment subsequent to the events of July 19, 2000. Moreover, Dr. Meyer could not adequately address the propensity of certain exhibitionists to move on to more heinous sexual activities. As a result, Dr. Meyer's opinion that there is no direct relation between Respondent's exhibition and his practice of psychology, is rejected. Character witnesses Dr. Henry E. Roberts is Respondent's pastor at United Methodist Church. He knows Respondent and his wife. He stated that Respondent is an active church member, a man of integrity, and is respected in the community. Flurett Fontaine is Respondent's office manager and has been for six years. She has been in a position to observe him closely. She stated that Respondent is a Christian, an ethical, and moral man. She chose Respondent to counsel her son when her son was arrested. She would not work for anyone she could not trust. Robin Steed is a sign language interpreter for the deaf or hard of hearing for the Department of Education, Vocational Rehabilitation, and has known Respondent for 15 years. She works with him when he evaluates and counsels deaf or hard of hearing persons. She believes Respondent to be sincere, generous, and trustworthy. George Custred was a patient of Respondent before Respondent's arrest and continues to be a patient of Respondent. Mr. Custred stated that he had experienced serious emotional problems and that he would not be alive absent the professional help he received from Respondent. Bradford Guy is a vocational rehabilitation counselor and has been for 25 years. Mr. Guy said that Respondent was a dedicated and thorough psychologist. Kenneth Donnalley is a vocational rehabilitation counselor who has known Respondent for nine years both personally and professionally. Mr. Donnalley said that Respondent is an honest, caring person to whom he refers his more clinically fragile clients because of Respondent's understanding and because of the thoroughness of his evaluations. He referred his 19-year-old daughter to Respondent and would do so again, if necessary, despite his knowledge that Respondent had been arrested. Dr. Bill Spain is a chiropractor who has known Respondent for about 20 years. They both attend the same church and are members of a Wednesday morning bible class. He said that Respondent is a fine Christian. Bonnie Brown is Respondent's second wife. She is a middle school teacher and has known Respondent since 1985. She married him in 1991. She said they enjoyed an excellent marriage and stated that their relationship has grown stronger since Respondent's arrest.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Psychology enter a final order finding that Respondent committed a violation of Section 490.009(2)(c), Florida Statutes, by being convicted or having been found guilty of a crime which directly relates to the practice of his profession or the ability to practice his profession, and that his license be suspended for one year, or a lesser period of time should he demonstrate to the Board of Psychology that he is rehabilitated. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 27th day of February, 2002. COPIES FURNISHED: Paul Watson Lambert, Esquire 1203 Governors Square Boulevard Magnolia Centre, Suite 102 Tallahassee, Florida 32311-2960 Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39 Tallahassee, Florida 32308 Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner is a longtime Florida resident, having moved to the state when she was five, and thereafter was reared and educated in Dade County Florida. Petitioner received an AA degree from Dade County Junior College, a BA from Florida Atlantic University in Boca Raton, Florida, and a Masters Degree from Lone Mountain College in San Francisco, California via an external program based in the Miami/Dade area. In pursuit of a Ph.D. in psychology, Petitioner applied to Union was accepted and matriculated there from 1981 through 1953, and received her Ph.D. in psychology on June 29, 1953. Upon receipt of her Ph.D. degree in psychology, Petitioner was required to fulfill a one-year post-doctoral supervision prior to applying for certification to take the psychology licensure examination. Section 490.005, Florida Statutes (1953). Petitioner satisfied this requirement from June 30, 1953 to June 30, 1954 by engaging in psychotherapy under the supervision of Dr. Ted Aidman. Petitioner then applied to the Board for certification to take the psychologist licensure examination. Petitioner applied to take the examination under the provisions of Section 490.OO5(1), Florida Statutes (1953) and in pertinent part is quoted below: Any person desiring to be licensed as a psychologist shall apply to the department to take the licensure examination. The department shall license each applicant who the board certifies has: * * * (b) Submitted proof satisfactory to the Board that he has received a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or that he has received a doctoral degree in psychology from a university or professional school maintaining a standard of training comparable to the standards of training of those universities having programs approved by the American Psychological Association or the doctoral psychology programs of the state universities. The Board adopted Rule 21U-11.06, Florida Administrative Code, to implement Section 490.005, Florida Statutes (1983) and essentially codified the criteria for American Psychological Association (APA) approved programs for the first time in this rule. The rule took effect on April 5, 1984. The pertinent part of the rule is quoted below: In order to be certified by the Board as eligible for examination pursuant to Section 490.005(1), Florida Statutes, an applicant must: * * * Submit proof of the completion of a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or a doctoral degree in psychology from a university or professional school maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association. For the purpose of determining whether an applicant's doctoral degree in psychology was received from a university or professional school maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association the Board will apply the following criteria: (emphasis supplied) Education and training in psychology must have been received in an institution of higher education accredited by one of the regional accrediting bodies recognized by the Counsel on Postsecondary Accreditation. * * * 5. The doctoral program must be an organized, integrated sequence of study designed by the psychology faculty responsible for the program. The American Psychological Association Accreditation Handbook, Criteria For Accreditation of Doctoral Training Program and Internship in Professional Psychology (Handbook), adopted in January 1979 and amended in January 1950, sets out criteria that the doctoral programs must meet to be eligible for accreditation by APA and in pertinent part are listed below: A. Training in professional psychology is doctoral training offered in an institution of higher education accredited by one of the six regional accrediting bodies recognized by the Council of Postsecondary Accreditation (COPA). * * * The faculty of the program must have clear authority and primary responsibility for all aspects of the program (even if the program cuts across institutional administrative lines). The program must include an integrated, organized plan of study and must ensure a breadth of exposure to the field of psychology. In the Introduction of A Handbook of Accreditation (Petitioner's Exhibit 7, page 1) accreditation is defined as both a process and a result and in pertinent part is quoted below: As a process, it is a form of peer review in which educational institutions establish a set of criteria and procedures by which they and their fellows are judged. As a result, it is a form of certification by which the qualify of an educational institution, as defined by the accrediting body's criteria, is affirmed. The forms of Affiliations are discussed in A Handbook of Accreditation and in pertinent part quoted below: Postsecondary educational institutions may be affiliated with the Commission on Institutions of Higher Education, and through it with the Association, in either two ways. One is membership, which is synonymous with accreditation; the other is candidacy, a preaccreditation status. [page 3] . . . an institution continues its candidacy for accreditation for a fixed period of time - usually no longer than six years - until it either fulfills the Criteria for Accreditation or has its affiliation with the Commission terminated. [page 3] . . . Candidacy indicates that an institution meets the Criteria for Candidacy for Accreditation and is progressing toward accreditation; it does not, however, auto- matically assure eventual accreditation . . . [page 3, 4] The North Central Association of Colleges and Schools' evaluative criteria for candidacy highlight that such standards differ from accreditation standards. A Handbook of Accreditation explains the second evaluation criteria as follows: This criteria differs from the second evaluative criterion for accreditation in that it speaks of a candidate's accomplishing its immediate purposes. The difference is meant to acknowledge that a candidate is not yet fully developed to the point at which it has the ability to accomplish all of its purposes. [page 19] The fourth criteria for candidacy status indicates that candidacy status is not equivalent to accreditation. The fourth evaluative criteria reads in pertinent part: 4. The institution has the potential to achieve accreditation within the candidacy period. In making this judgment, the candidate's present condition, its plans and its timetable for developing to the point where it meets the Criteria for Accreditation must be examined. Candidacy is of a limited duration, and the Commission seeks to determine through this criterion that the candidates current plans are likely to allow it to achieve accreditation within this limited period. [page 20] Union received formal accreditation on February 25, 1985 by the North Central Association for Colleges and Schools, Commission on Institution of Higher Education ("Commission"), a regional accrediting body recognized by the Counsel on Postsecondary Accreditation. During Petitioner's matriculation at Union, and at the time she graduated, Union was in a candidacy status or a preaccreditation status. Union was in candidacy status from 1979 to 1985, a period of six (6) years which is considered the maximum period without special Commission action for extension. Union had to satisfy all thirteen (13) general institutional requirements and all four (4) evaluative criteria to be granted candidacy status. To achieve accreditation, Union had to sustain and maintain the same thirteen (13) institutional requirements and satisfy a similar, but different group of four (4) evaluative criteria. The same general institutional requirements and basically the same evaluative criteria are required for both candidacy status and accreditation but candidacy and accreditation are not the same. In candidacy status the institution is trying to assure the Commission of its ability, financial and otherwise to maintain a viable program. In accreditation the certification has been affirmed. No evidence was presented to show that APA, in its approval process, would substitute candidacy status for accreditation status. In fact the evidence was conclusive that regional accreditation was an important standard and a reasonable criterion in the evaluation and approval of psychology programs by the APA. The evidence is clear that the accreditation requirement of the rule in question is comparable to the requirement of regional accreditation by APA in its approval process. To demonstrate that a program is able to produce qualified health professionals the APA requires that a program must articulate what the program is and what that program requires. A pertinent section in the Handbook under Training Models and Curricula, page 5, is quoted below: C. The foundation of professional practice in psychology is the evolving body of know- ledge in the discipline of psychology. While programs will vary in emphasis and in available resources, sound graduate education in general psychology is therefore essential in any program. The curriculum shall encompass the equivalent of a minimum of three academic years of full-time resident graduate study. Instruction in scientific and professional ethics and standards, research design and methodology, statistics, psychological measurement, and history and systems of psychology must be included in every doctoral program in professional psychology. . . (emphasis supplied) The requirement of a sequenced course of study is an important and essential criteria of the APA in the training of a psychologist. The evidence is clear that the requirements of Rule 21U- 11.06(1)(b)5., Florida Administrative Code, are comparable to the standards for APA approval of a doctoral program with regard to the design of study by the faculty even though the language "sequence of study" does not appear in the APA standards. Dr. Charles A. Brownfield graduated from Union, Antioch College receiving his Ph.D. in psychology on October 1, 1971 and was licensed by the Florida State Board of Examiners in 1973 under a statute with language similar to that of Section 490.005(1)(b), Florida Statutes (1983). The evidence is insufficient to show that APA was approving doctoral psychology programs in 1971 or, if it was, whether the standards used at that time were the same as those standards adopted by APA in 1979 and amended in 1980. The statute under which Dr. Brownfield was licensed was repealed, effective July 1, 1979, by Chapter 77-457, Section 1, Laws of Florida and he was then licensed by exception under the new statute in 1982. The evidence is insufficient to show that any person graduating from Union between 1979 when APA adopted its standards for approving doctoral psychology programs and the effective date of the rule on April 5, 1984 was permitted by the Board to take the examination for licensure.
Findings Of Fact Petitioner is a long-time Florida resident, having moved to the state when she was five, and thereafter was reared and educated in Dade County, Florida. Petitioner received an AA degree from Dade County Junior College, a BA from Florida Atlantic University in Boca Raton Florida, and a Masters Degree from Lone Mountain College in San Francisco, California via an external program based in the Miami/Dade area. In pursuit of a Ph.D. in psychology, Petitioner applied to Union, was accepted and matriculated there from 1981 through 1983, and received her Ph.D. in psychology on June 29, 1983. Upon receipt of her Ph.D. degree in psychology, Petitioner was required to fulfill a one-year post-doctoral supervision prior to applying for certification to take the psychology licensure examination. Section 490.005, Florida Statutes (1983). Petitioner satisfied this requirement from June 30, 1983 to June 30, 1984 by engaging in psychotherapy under the supervision of Dr. Ted Aidman. Petitioner then applied to the Board for certification to take the psychologist licensure examination. Petitioner applied to take the examination under the provisions of Section 490.005(1); Florida Statutes (1983) and in pertinent part is quoted below: Any person desiring to be licensed as a psychologist shall apply to the department to take the licensure examination. The department shall license each applicant who the board certifies has: * * * (b) Submitted proof satisfactory to the Board that he has received a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or that he has received a doctoral degree in psychology from a university or professional school maintaining a standard of training comparable to the standards of training of those universities having programs approved by the American Psychological Association or the doctoral psychology programs of the state universities. (Emphasis supplied) The Board adopted Rule 21U-11.06, Florida Administrative Coded to implement Section 490.005, Florida Statutes (1983) and essentially codified the criteria for American Psychological Association (APA) approved programs for the first time in this rule. The rule took effect on April 5, 1984. The pertinent part of the rule is quoted below: In order to be certified by the Board as eligible for examination pursuant to Section 490.005(1), Florida Statutes, an applicant must: * * * (b) Submit proof of the completion of a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or a doctoral degree in psychology from a university or professional school maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association. For the purpose of determining whether an applicant's doctoral degree in psychology was received from a university or professional school maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association the Board will apply the following criteria: (emphasis supplied) 1. Education and training in psychology must have been received in an institution of higher education accredited by one of the regional accrediting bodies recognized by the Counsel on PostSecondary Accreditation. * * * 5. The doctoral program must be an organized, integrated sequence of study designed by the psychology faculty responsible for the program. The American Psychological Association Accreditation Handbook, Criteria For Accreditation of Doctoral Training Program and Internship in Professional Psychology (Handbook), adopted in January 1979 and amended in January 1980, sets out criteria that the doctoral programs must meet to be eligible for accreditation by APA and in pertinent part are listed below: A. Training in professional psychology is doctoral training offered in an institution of higher education accredited by one of the six regional accrediting bodies recognized by the Council of Postsecondary Accreditation (COPA). * * * The faculty of the program must have clear authority and primary responsibility for all aspects of the program (even if the program cuts across institutional administrative lines). The program must include an integrated, organized plan of study and must ensure a breadth of exposure to the field of psychology. In the Introduction of A Handbook of Accreditation (Petitioner's Exhibit 7, page 1) accreditation is defined as both a process and a result and in pertinent part is quoted below: As a process, it is a form of peer review in which educational institutions establish a set of criteria and procedures by which they and their fellows are judged. As a results it is a form of certification by which the quality of an educational institution; as defined by the accrediting body's criteria; is affirmed. The forms of Affiliations are discussed in A Handbook of Accreditation and in pertinent part quoted below: Postsecondary educational institutions may be affiliated with the Commission on Institutions of Higher Education, and through it with the Association, in either two ways. One is membership, which is synonymous with accreditation; the other is candidacy, a preaccreditation status. [page 3] . . . an institution continues its candidacy for accreditation for a fixed period of time - usually no longer than six years - until it either fulfills the Criteria for Accreditation or has its affiliation with the Commission terminated. [page 3] . . . Candidacy indicates that an institution meets the Criteria for Candidacy for Accreditation and is progressing toward accreditation; it does not, however, automatically assure eventual accreditation . . . [page 3, 4] The North Central Association of Colleges and Schools' evaluative criteria for candidacy highlight that such standards differ from accreditation standards. A Handbook of Accreditation explains the second evaluation criteria as follows: This criteria differs from the second evaluative criterion for accreditation in that it speaks of a candidate's accomplishing its immediate purposes. The difference is meant to acknowledge that a candidate is not yet fully developed to the point at which it has the ability to accomplish all of its purposes. [page 19] The fourth criteria for candidacy status indicates that candidacy status is not equivalent to accreditation. The fourth evaluative criteria reads in pertinent part: 4. The institution has the potential to achieve accreditation within the candidacy period. In making this judgment, the candidate's present condition, its plans and its timetable for developing to the point where it meets the Criteria for Accreditation must be examined. Candidacy is of a limited durations and the Commission seeks to determine through this criterion that the candidates current plans are likely to allow it to achieve accreditation within this limited period. [page 20] Union received formal accreditation on February 25, 1985 by the North Central Association for Colleges and Schools, Commission on Institution of Higher Education ("Commission"), a regional accrediting body recognized by the Counsel on Postsecondary Accreditation. During Petitioner's matriculation at Union, and at the time she graduated, Union was in a candidacy status or a preaccreditation status but was not accredited. Union was in candidacy status from 1979 to 1985, a period of six (6) years which is considered the maximum period without special Commission action for extension. Union had to satisfy all thirteen (13) general institutional requirements and all four (4) evaluative criteria to be granted candidacy status. To achieve accreditation, Union had to sustain and maintain the same thirteen (13) institutional requirements and satisfy a similar, but different, group of four (4) evaluative criteria. The same general institutional requirements and basically the same evaluative criteria are required for both candidacy status and accreditation but candidacy and accreditation are not the same. In candidacy status the institution is trying to assure the Commission of its ability, financial and otherwise, to maintain a viable program. In accreditation the certification has been affirmed. No evidence was presented to show that APA, in its approval process, would substitute candidacy status for accreditation status. In fact, the evidence was conclusive that regional accreditation was an important standard and a reasonable criterion in the evaluation and approval of psychology programs by the APA. The evidence is clear that the accreditation requirement of the rule in question is comparable to the requirement of regional accreditation by APA in its approval process. To demonstrate that a program is able to produce qualified health professionals the APA requires that a program must articulate what the program is and what that program requires. A pertinent section in the Handbook under Training Models and Curricula, page 5, is quoted below: C. The foundation of professional practice in psychology is the evolving body of knowledge in the discipline of psychology. While programs will vary in emphasis and in available resources, sound graduate education in general psychology is therefore essential in any program. The curriculum shall encompass the equivalent of a minimum of three academic years of full-time resident graduate study. Instruction in scientific and professional ethics and standards, research design and methodology, statistics, psychological measurement, and history and systems of psychology must be included in every doctoral program in professional psychology. . . (emphasis supplied) The requirement of a sequenced course of study is an important and essential criteria of the APA in the training of a psychologist. The evidence is clear that the requirements of Rule 21U-11.06(1)(b)5., Florida Administrative Code, are comparable to the standards for APA approval of a doctoral program with regard to the design of study by the faculty even though the language "sequence of study" does not appear in the APA standards. Rule 21U-11.06, Florida Administrative Code and the standards for approval of programs by the APA contemplated that a program designed to produce qualified health care professionals must articulate a plan of study for those future health care professionals that would achieve the objectives of training that are specified by the program. A plan, designed by the faculty responsible for the program, by which you get from here to there, which involves the faculty providing the student with a sequence of experience such as that one builds on the other in an orderly way; an organized integrated sequence of study. Petitioner failed to produce sufficient evidence to prove that Union's doctoral psychology program was an organized integrated sequence of study. Union has a committee on Psychology that is chaired by Dr. Harold Gollishan and an identifiable psychology faculty with members located in different areas of the United States. Union offers a single graduate degree -- the Doctor of Philosophy Degree. Union offers a self-directed program of studies for its students. There are no prescribed courses, although an individualized plan (Learning Agreement) may include the use of university courses (Petitioner's Exhibit No. 4, Pages 4 and 18). The process for obtaining a doctoral degree at Union is described in the Union Graduate School Learner Handbook (Learner Handbook) which applies to all doctoral degrees, not just psychology. The Learner Handbook does not state additional or specific requirements or what Union refers to as core requirement, for the Union doctoral psychology programs. The core requirement is not specifically addressed in USG Program Summary (Petitioner's Exhibit No. 6) which Petitioner presented as a prototype for a psychology program but was no more than a summation and documentation of one student's learning process at Union. Neither the Learner Handbook nor the Program Summary articulate an organized, integrated sequence of study designed by the psychology faculty of Union. Once admitted to Union's doctoral program the general process is for the student to: (a) attend a 10-day entrance colloquium; (b) form a doctoral committee; (c) develop a learning agreement; (d) fulfill the terms of the learning agreement through independent learning; (e) complete a Program Demonstrating Excellence (PDE); and (f) prepare a program summary. Although the testimony of Drs. Crawford and Benjamin was that the core requirements for the doctoral psychology program were articulated at this colloquium, the weight of the evidence shows that there are no specific core requirements for the Union doctoral psychology program as such but that the core requirements are determined at the colloquium after the students present their program to other students and faculty. This process does not constitute an organized integrated sequence of study designed by the faculty responsible for the program. The testimony at the hearing does not establish that the Union psychology program is memorialized in written documents. There is no formal written design of the Union psychology program. If there are any written documents of Union psychology program, they were not produced at the hearing. The Union psychology program's integrated sequence of study was never described at the hearing. The Union psychology program was variously described as a set of precedents, as a set of expectations, and as an "understanding of the faculty." The vague "expectations" or "understandings", absent a formal written program, are insufficient to constitute an organized integrated sequence of study. A psychology program based on "expectations" and "understandings" is particularly insufficient at a school, such as Union, where the faculty and students are spread out across the country, and meet together sporadically. The testimony of Dr. Aidman, an adjunct professor and Petitioner's doctoral committee chairman, highlights how little interaction there is between faculty. The testimony of Dr. Benjamin further reflects that much of the faculty does not know who, when, where or how the psychology program was designed. In the absence of a formal written psychology program, and in the absence of a cohesive, centrally located faculty and student body; the lack of an organized, integrated sequence of study designed by the faculty becomes apparent. A sequenced course of study is important in educating psychologists and is required by Rule 21U-11.06(1)(b), Florida Administrative Code. The psychology program at Union is not an organized, sequenced program. There are no psychology departments at Union. The Union has five psychology programs", plus individualized "programs" in general psychology. The five "programs" are Adlerian psychotherapy, Gestalt and clinical psychology, humanistic and clinical psychology, marriage and family therapy, and psychoanalysis. Petitioner was not in one of the above- named "programs", but was in an individualized, general "program" in psychology. There is no evidence that there is an organized integrated sequence of study designed by the faculty for any of the five named psychology "programs", and even less evidence that there is any organized integrated sequence of study for the individualized, general "program" in psychology. Petitioner's testimony at the hearing and before the Board on June 25, 1985 indicates that Petitioner was responsible for her doctoral psychology program at Union. Petitioner's Learning Agreement and Program Summary may have thrown some light on whether her individual program was an organized integrated sequence of study but neither was introduced into evidence. The record reflects that Petitioner wrote and designed her own program, which was then approved by her doctoral committee which she assembled. The Petitioner did not present evidence of a set of standards for the psychology programs of state universities of Florida. The Petitioner did demonstrate that Union does have some similarities with psychology programs of the state universities. There is evidence that the psychology programs of the state universities are in regionally accredited institutions, and that they constitute organized, integrated sequences of study designed by the faculty. The Petitioner avoided comparison between Union and the state university programs in these areas. The Petitioner did not graduate from a psychology program of the state universities. Dr. Charles A. Brownfield graduated from Unions Antioch College, receiving his Ph.D. in psychology on October 1, 1971 and was licensed by the Florida State Board of Examiners in 1973 under a statute with language similar to that of Section 490.005(1)(b), Florida Statutes (1983). The evidence is insufficient to show that APA was approving doctoral psychology programs in 1971 or, if it was, whether the standards used at that time were the same as those standards adopted by APA in 1979 and amended in 1980. The statute under which Dr. Brownfield was licensed was repealed, effective July 1, 1979, by Chapter 77-457, Section 1, Laws of Florida and he was then licensed by exception under the new statute in 1982. The evidence is insufficient to show that any person graduating from Union between 1979 when APA adopted its standards for approving doctoral psychology programs and the effective date of the rule on April 5, 1984 was permitted by the Board to take the examination for licensure.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the board enter a final order DENYING Petitioner, Melodie K. Moorehead, certification to sit for the licensure examination in psychology. Respectfully submitted and entered this 8th day of January 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3782 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings f Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1 with last sentence rejected as unnecessary. Adopted in Finding of Fact 2 with last two (2) sentences rejected as unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5 with the quoted language of subsections 1(a)(c)(d) deleted as unnecessary and the last sentence rejected as a legal argument. Adopted in Finding of Fact 6. Rejected as not based upon competent substantial evidence. There was no evidence in the record that April 5, 1984 was the first time accreditation was an absolute prerequisite to taking the examination or that prior to that time applicants from schools in candidacy status were allowed to take examinations. Adopted, but clarified in Finding of Fact 12. Sentence 1-3 rejected as unnecessary and immaterial. Sentence 4 adopted in Finding of Fact 12. Sentence 5 rejected because the more competent evidence shows 6 years as maximum period of candidacy (Petitioner's Exhibit 7, page 22). Sentences 6-7 adopted in Finding of Fact 13. Sentences 8-10 adopted but clarified in Findings of fact 10 and 14. Sentence 11 rejected as unnecessary and immaterial. Adopted in Findings of Fact 10 and 14 but clarified. Rejected as cumulative, immaterial and unnecessary. Sentence 1 adopted in Findings of Fact 9, 10 and 12 but clarified. Sentences 2 and 3 rejected as legal argument. Rejected as not supported by substantial competent evidence. The first paragraph rejected partly as hearsay and partly as not supported by substantially competent evidence. The second paragraph rejected partly as hearsay and partly as immaterial. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Rejected as not supported by substantial competent evidence. Sentence 1 rejected as not supported by substantial competent evidence. The evidence was insufficient to prove "established policy of the Board." Sentence 2 adopted in Finding of Fact 20 but clarified to show Brownfield's graduation from Union, Antioch College not as Union exists presently. Sentence 3 rejected as not supported by substantial competent evidence. No evidence that Union, Antioch College was not accredited, only that Union, in its status before February 25, 1985, was not accredited. Sentences 1 and 2 and the quoted statutory language not listed as a finding of fact but covered in the conclusion of law and mentioned as language similar to the present statute in Finding of Fact 20. Sentence 3 rejected as immaterial due to repeal of statute and changed facts. Sentence 1 rejected as immaterial because of changed fact. Sentences 2 and 3 rejected as arguments. Graduates from schools other than Union may also be denied on same circumstances. Covered in Background. Rejected as not supported by substantial competent evidence. Rejected as legal argument. Rejected in part as legal argument and in part as not supported by substantial competent evidence. Paragraphs 1, 2, 3, 4; 5 (except for first sentence which is adopted in Findings of Fact 22), 6, 8, 9, 10, 11 (except for first sentence which is adopted in Finding of Fact 23) and 12, (except first sentence which is adopted in Finding of Fact 23), are rejected as immaterial, cumulative and unnecessary. Paragraph 7 is rejected as not supported by substantial competent evidence. Paragraphs 1 and 2 rejected as immaterial. Paragraphs 3 and 4 adopted in part by Finding of Fact 24, otherwise rejected as immaterial. Paragraph 1 and the first and last sentences of paragraph 2 rejected as not supported by substantial competent evidence. The second sentence of paragraph 2 rejected as immaterial. The first part of paragraph 3 adopted in Finding of Fact 23 but otherwise rejected as not supported by substantial competent evidence. Rejected as not supported by substantial competent evidence. Rejected as immaterial. Rejected partly as a conclusion of law and partly as a legal argument. Sentences 1 and 2 rejected as not supported by substantial competent evidence. The last sentence rejected as a legal argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Covered in Background and in Findings of Fact 4 and 5. Covered in Background. Covered in Background. Covered in Background. Covered in Background. Adopted in Finding of Fact 6. Adopted in Finding of Fact 12. Adopted in Finding of Fact 8 and 9. Adopted in Finding of Fact 10 and 11. Adopted in Finding of Fact 7. Adopted in Finding of Fact 12 and 15. Adopted in Finding of Fact 6. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Findings of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 23. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. COPIES FURNISHED: Linda Biedermann, Executive Director Department of Professional Regulation Board of Psychological Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Randall A. Holland, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301 Melissa Fletcher Allaman, Esquire Post Office Box 1170 Tallahassee, Florida 32302-1170
