The Issue The issue for consideration is whether the Petitioner, Donna B. Lopez, is qualified to sit for the examination as a mental health counselor in Florida by virtue of her education and experience.
Findings Of Fact In April, 1985, the Petitioner, Donna B. Lopez, filed an application with the Florida Board of Psychological Examiners, (Bgard), to sit for examination as a mental health counselor. In paragraph 7 of the application, which called for a listing of all post-secondary psychology related education, Petitioner indicated that she received a degree as psychologist with a major course of study in psychology from the Universidad Nacional de Rosario, Esquela de Psicologia, in Rosario, Argentina, which school was accredited by the Universidad Nacional del Litoral in the Republic of Argentina. Petitioner graduated from that school on December 30, 1971. When the application was received by the Board, it was evaluated by Ms. Biedermann, who determined Petitioner did not qualify to sit for the requested examination because the university from which she received her degree was not accredited in accordance with state requirements that the applicant have a Master's degree from a university accredited by an agency approved by the United States Department of Education. To make the evaluation, Ms. Biedermann used two documents to determine accreditation; the 1981-1982 edition of Accredited Institutions of Post Secondary Education (Programs/Candidates), a directory of accredited institutions and programs published for the "Council on Post-Secondary Education" of the American Council on Education and Accredited Post-Secondary Institutions and Programs, published by the United States Department of Education in September, 1980. Supplements to the latter are published in the Federal Register and during the evaluation, Ms. Biedermann considered not only the basic document but also the then current edition of the Federal Register. Petitioner's university was not listed as an accredited university by any of the documentation either at the time of evaluation of the application or at the time she graduated in 1971. Consequently, Ms. Biedermann advised Petitioner that her application to sit for the examination had been denied. Another reason for rejection of Petitioner's application was that Ms. Biedermann was unable to determine if Petitioner's degree was equivalent to a Master's degree in the United States. Included with Petitioner's application was a translation into English of a Spanish language document which constitutes a description of her course work, but it is not an official transcript. Nonetheless, Ms. Biedermann called the United States Department of Education to inquire if there were any schools in Argentina accredited by United States approved agencies and was advised that there were not. Petitioner attended undergraduate school in Rosario, Argentina, graduating from a five year course of study with the degree of Psychologist in 1971. Thereafter, she completed a three year internship in a mental health center in Buenos Aires during which time she did a series of rotations throughout the different departments of the center. From there she went into private practice in Buenos Aires and was a member of a psychiatric team in a hospital from 1973 through 1978. During this time she was supervised by a psychiatrist who is a member of the American Psychiatric Association. In 1979 she settled in Miami, becoming an American citizen in 1986. After her arrival, she applied to the Dade County Board of Psychologists, then the accrediting agency, and was issued an occupational license as a psychologist in late 1979 or 1980. She thereafter practiced as a psychologist in Dade County until 1981 when the Florida Legislature passed the current statute, (Section 490.005) governing the licensing of psychologists and various sub-disciplines. In the 1950's, the original Chapter 490 of Florida Statutes licensed psychologists at the Doctorate level only. In 1979 this statute sunsetted and from 1979 to 1981, at least in both Dade and Broward Counties the county occupational license was issued to almost anyone applying for it without a prior demonstration of qualification. In the memory of Dr. Jospeh R. Feist, who was instrumental in the process designed to cure this situation, approximately 800 occupational licenses were issued in the first six months of this period: a figure the same as the total number of licenses issued statewide under the prior licensing statute in the prior twenty years. In 1979, the Dade County Commission passed an ordinance to revoke the occupational licenses issued during the hiatus period and established qualifications for licensing. It also created a board to review applicants. Dr. Feist was appointed as Secretary of the board which was made up of six members, all of whom were Ph.D's. In the course of this service, Dr. Feist became acquainted with Petitioner who applied sometime during 1980. The board recommended approval of her application. In Dr. Feist's opinion, Petitioner's course work was at or beyond the Master's level in the United States. The Board, however, did not inquire into whether Petitioner's university was properly accredited here. Dr. James E. Gorney is a clinical psychologist who is also an assistant professor of psychiatry at Cornell University Medical Center. As a part of his duties, he participates in the training program for post-doctoral psychologists and for 11 years or so, has examined the transcripts of numerous individuals possessing both Master's and Doctor's degrees in psychology. He got to know the Petitioner when they were both selected to serve on a prestigious international panel in New York City made up of university teaching psychologists hand picked by the conference leaders. Dr. Gorney has reviewed Petitioner's course work and based on it and his personal knowledge of her work and experience, he is of the opinion that she possesses the equivalent of a Master's degree from Cornell. Her program far exceeds any program for a Master's degree in psychology Dr. Gorney has seen anywhere in the United States and is the equivalent of a Doctoral program. It surpasses many programs approved by the American Psychiatric Association. Every area is covered and many related areas normally covered in Doctoral programs are included providing a very broad range of experience. Dr. Gorney's opinion is reinforced and supported by the deposition testimony of Dr. Muller whose experience with Petitioner and evaluation of her credentials leads him to conclude that her course work is the equivalent of at least a Master's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's application to take the examination for licensure as a mental health counselor be denied. RECOMMENDED this 28th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1987. COPIES FURNISHED: John L. Britton, Esquire BRITTON & KANTNER, P.A. Barnett Bank Building, Suite 1203 One East Broward Boulevard Fort Lauderdale, Florida 33301 Phillip B. Miller, Esquire Robert D. Newell, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Linda Biedermann, Executive Director Board of Pschological Services 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated May 7, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Raymond J. Agostino, holds Florida Educator Certificate No. 385460, covering the areas of educational leadership, elementary education, and English to Speakers of Other Languages, which is valid through June 30, 2005. At all times relevant to this proceeding, Mr. Agostino was employed as an assistant principal at North Fort Myers High School in the Lee County School District. On the morning of May 16, 2003, at about 5:34 a.m., a 911 emergency call was received by the Cape Coral Police Department. A female voice could be heard screaming on the line. The 911 operator asked the caller to state the nature of the emergency. The caller did not identify herself but could be heard screaming, "Get the fuck off of me! Get the fuck off of me!" Michael Carroll, the 911 operator who received the call, testified that when he answers an emergency call, his equipment provides a readout of the caller's phone number and address. Mr. Carroll relays the call to the police department's dispatcher, who in turn dispatches officers to the indicated address. In this instance, the caller identification equipment indicated that the call came from a telephone with the number "458-5077." At the time, this was the phone number of Mr. Agostino and his wife, Pamela Agostino. They resided at 1943 Northeast Fifth Terrace in Cape Coral. Officers Don Donakowski and Jason Matyas of the Cape Coral Police Department were dispatched to the Agostino house at about 5:35 a.m. on May 16, 2003, and arrived in separate cars at about 5:39 a.m. From outside the house, they observed a shirtless male, later identified as Mr. Agostino, in the living room area. They did not see Mrs. Agostino. They knocked on the front door, and Mr. Agostino answered. The officers identified themselves, told Mr. Agostino why they had been sent to the house, and asked him what happened. Mr. Agostino told the officers that he and his wife had been arguing over financial matters but denied that there had been any kind of physical confrontation. Officer Matyas noted that Mr. Agostino was reluctant to provide details of the incident. The officers noted no visible injuries on Mr. Agostino. While talking to Mr. Agostino in the doorway, they observed Mrs. Agostino emerge from the master bedroom. Officer Donakowski went inside the house to speak with Mrs. Agostino, who appeared very emotional, scared, and crying. Officer Donakowski observed that she appeared to have been in a physical altercation. There were scratches and a lump over her right eye and dried blood in her hair. Mrs. Agostino told Officer Donakowski that she and her husband had an argument. She told Officer Donakowski that her husband was bipolar and sometimes would go on binges, including spending money he didn't have. Mrs. Agostino told Officer Donakowski that her husband asked her for a $500 check to pay the mortgage. She told him she didn't have the money, and he became angry and began screaming at her. Fearing for her safety, she ran into the bedroom and locked the door. When Mr. Agostino broke down the door to get to her, Mrs. Agostino grabbed the bedroom telephone and dialed 911. Mrs. Agostino told Officer Donakowski that when her husband saw her dialing 911, he threw her down, knocked the phone out of her hand, gouged at her eyes, and pulled out a handful of her hair. It was during this attack that she screamed at her husband to get off of her. Mrs. Agostino told Officer Donakowski that she was then able to escape her husband's grasp and run into another room. She also told Officer Donakowski that her husband had attempted to strangle her in a confrontation on the previous day. Mrs. Agostino told Officer Donakowski that she would not give a written statement because she feared retaliation from her husband. After he interviewed Mrs. Agostino, Officer Donakowski went outside and spoke with Mr. Agostino, while Officer Matyas conducted his interview with Mrs. Agostino. Mr. Agostino told Officer Donakowski that the only thing that happened was an argument, though he did admit to breaking down the bedroom door. Mr. Agostino stated that he had never physically abused his wife in seven years of marriage. Officer Matyas noted that Mrs. Agostino was visibly upset and shaken. He observed fresh bloody scratches and swelling around her right eye, as well as blood in her hair near the scratches. Officer Matyas also noted several broken panels in the master bedroom door. When Officer Matyas asked Mrs. Agostino what had happened, she told him that she and her husband had been in the living room. Mr. Agostino asked her for a $500 check to pay the mortgage, because he had spent $600 on a sprinkler system. She told him that she could not give him the money because she needed it for a car payment. Mr. Agostino became angry and verbally abusive. Mrs. Agostino became fearful and locked herself in the bedroom. Mr. Agostino began banging on the bedroom door. As Mrs. Agostino picked up the phone to call 911, Mr. Agostino broke through the door and entered the bedroom. He forced Mrs. Agostino's head down to the floor while gouging at her eyes with his fingers and thumbs. She agreed to give him the money and he let her up. Mrs. Agostino told Officer Matyas that there had been a physical confrontation on the previous day in which her husband attempted to strangle her. She believed her husband was bipolar, though he had not been medically diagnosed. She told Officer Matyas that she did not want to press charges because her husband could be fired from his job. Based on the physical evidence and witness statements, the officers arrested Mr. Agostino and charged him with Battery--Domestic Violence. Officer Donakowski took photographs of Mrs. Agostino's injuries, the broken door, and a clump of hair that Mrs. Agostino stated had been pulled from her head by Mr. Agostino. The photographs were admitted into evidence at this proceeding. The charges against Mr. Agostino were subsequently dismissed. The Lee County School District investigated allegations of misconduct against Mr. Agostino arising from his arrest. At his predetermination conference, Mr. Agostino denied that any physical confrontation took place between his wife and him. The school district concluded that there was no probable cause to impose discipline on Mr. Agostino. At the hearing in this matter, Mrs. Agostino testified that on the morning of May 16, 2003, it was, in fact, she, who attacked her husband. She testified that at the time, she was taking medication for petit mal seizures that made her very agitated, violent, and confused. She stated that the medication also caused her hair to fall out in clumps, accounting for the hair observed by the police officer. The medication named by Mrs. Agostino was Keflex. In fact, Keflex is a marketing name for cephalexin, a cephalosporin antibiotic unrelated to treatment of seizures. However, the symptoms described by Mrs. Agostino are consistent with common reactions to seizure medications. It is within reason that Mrs. Agostino, who is not a medical professional, simply confused Keflex with another medication she was taking for seizures. Mrs. Agostino testified that on the morning of May 16, 2003, she was attempting to confront Mr. Agostino about their finances, but he would not talk to her. Mrs. Agostino testified that his silence infuriated her, and she became violent. Mr. Agostino retreated into the bedroom. She broke through the door and attacked him, hitting him with the telephone, then throwing the telephone at him. Mrs. Agostino testified that she did not know how the 911 call was made. She theorized that the speed-dial may have been activated when she threw the phone at Mr. Agostino. She also had no idea how the scratches appeared around her eye, unless she hit her head on the bedroom door as she broke it down. Mrs. Agostino testified that she told the police officers that her husband attacked her because she was mad at him. At the hearing, Mr. Agostino testified that he and his wife were arguing about money. Mrs. Agostino became very agitated and started to become violent. Mr. Agostino retreated to the bedroom, closing and locking the door behind him. Mrs. Agostino "came through the door" and attacked Mr. Agostino, who put out his hands to fend her off. Mrs. Agostino started hitting him with the telephone. Mr. Agostino tried to get away, and she threw the phone at him. Mr. Agostino went into the living room. Mrs. Agostino followed and continued screaming at him. Mr. Agostino kept the couch between himself and his wife. At that point, the police knocked at the front door. Steven DeShazo, the principal of North Fort Myers High School, testified that he has worked with Mr. Agostino for eight years. Mr. DeShazo has had conversations with Mr. Agostino about scratches and abrasions on the latter's arms, presumably caused by Mrs. Agostino. Mr. DeShazo testified that he has had conversations with both Agostinos about their need for counseling, but that Mr. Agostino did not want to discuss his family problems. Mr. DeShazo discussed the May 16, 2003, incident with Mr. Agostino a few days after the events. Mr. Agostino told him that Mrs. Agostino had attacked him, and he had tried to fend her off. Mr. DeShazo had no personal knowledge of the events of May 16, 2003. The testimony of the Agostinos at the hearing completely contradicted the statements that Mrs. Agostino gave to the police on the morning of May 16, 2003, as well as Mr. Agostino’s admission to Officer Donakowski that he broke down the bedroom door. Only one version of these events can be true. It is found that the version of events related by Mrs. Agostino to the police officers was the truth. The police officers were at the Agostino house within four minutes of the 911 call. They observed that Mr. Agostino was pacing the living room floor and was out of breath. Both officers observed that Mrs. Agostino was very emotional, crying, scared, and upset. These observations lead to the finding that Mrs. Agostino was still suffering under the stress of the attack, and in her emotional state did not have time to contrive a false story. This finding is supported by the fact that Mrs. Agostino's statements to the police officers were consistent with all the other evidence: the 911 call, the broken door, the clump of hair, her own physical injuries, and the fact that she was in the bedroom when the police arrived. At the hearing, Mrs. Agostino attempted to make her new story comport with the physical evidence but was far from convincing. The clump of hair was plausibly explained as a reaction to medication, but she had no explanation at all for the scratches above her eye. Mr. Agostino's testimony hinted that he might have scratched her eye while trying to fend her off. Mrs. Agostino theorized that throwing the telephone might somehow have caused it to speed-dial 911. Even if the undersigned accepted the phone-throwing theory, there is no explanation for why the female voice on the 911 call was screaming, "Get the fuck off of me," if Mrs. Agostino was the aggressor and Mr. Agostino's only physical reaction was to fend her off. There is also no explanation for why Mrs. Agostino was in the bedroom when the police arrived. Mr. Agostino testified that she was in the living room when the police knocked on the front door, directly contradicting the testimony of both police officers. At the hearing, Mr. Agostino testified that he told the police and school officials that there was no physical confrontation in order to protect his wife, who is also an employee of the Lee County School District. He feared that she would lose her job if it became known that she attacked him. Given the evidence presented at the hearing, it is far more likely that Mrs. Agostino changed her story in order to protect her husband’s job. The evidence presented is sufficient to establish that Mr. Agostino committed an act of moral turpitude when he broke down the bedroom door, forced his wife's head down to the floor and gouged her eyes, releasing her only when she agreed to give him the money he wanted. This was an act of serious misconduct in flagrant disregard of society's condemnation of violence by men against women. The evidence presented is not sufficient to establish that Mr. Agostino attempted to strangle his wife on May 15, 2003. In this instance, there was no physical or other evidence to corroborate Mrs. Agostino’s hearsay statement to the police officers that her husband had attempted to strangle her. Although the evidence establishes that Mr. Agostino committed an act of moral turpitude, the only evidence offered regarding any notoriety arising from the May 16, 2003, incident was Mr. DeShazo's testimony that there was news coverage of the arrest. Mr. DeShazo stated that several students approached him expressing concern about Mr. Agostino and their hope that he would be allowed to remain at the school. Mr. DeShazo testified that no parents came to him expressing concern about the incident. There was no evidence to prove that Mr. Agostino's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Agostino's service in the community. There was insufficient evidence presented to establish that Mr. Agostino's performance as a teacher and an employee of the Lee County School District was diminished as a result of the May 16, 2003, incident and its aftermath. Mr. DeShazo testified that Mr. Agostino is the assistant principal for student affairs, which he described as the most high pressure, stressful job at the school. Mr. Agostino has never lost his temper at work, even in situations in which he has been hit and spat upon by unruly students. Mr. DeShazo testified that Mr. Agostino has been at work every day and has handled this uncomfortable situation with complete professionalism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Section 1012.795(1)(c), Florida Statutes (2003). It is further RECOMMENDED that a final order be issued placing Respondent on a two-year period of probation, subject to such conditions as the Commission may specify, including the requirement that Mr. Agostino undergo a full psychological evaluation and receive any necessary counseling to ensure that he is fully capable of performing his assigned duties with no further incidents such as those of May 16, 2003. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004. COPIES FURNISHED: Robert B. Burandt, Esquire Roosa, Sutton, Burandt, Adamski & Roland, LLP 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
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
The Issue This issues to be resolved in this proceeding concern whether the doctoral program in psychology at the Fielding Institute, headquartered in Santa Barbara, California met the requirement of Rule 21U-11.006(1)(b)5., 7., 9., and 10B., Florida Administrative Code during the period 1981 through 1986 when the Petitioner was enrolled in and completed that program and consequently whether the Petitioner meets the standards for application for licensure by examination as a graduate of that program.
Findings Of Fact The Fielding Institute was organized in 1974 with administrative headquarters in Santa Barbara, California. Its mission is training psychologists through its doctoral degree program in psychology. The Petitioner, Dr. Kenneth Gordon, was enrolled in the Fielding Institute's doctoral degree program from 1981 through 1986 and successfully graduated from that program with a doctor's degree in psychology. The Fielding doctoral program (program) was designed for "adult learners" or "midlife career professionals" who have training and experience in psychology and related fields and who seek to further their higher education, but who are unable to re-locate to a traditional, geographical campus-based doctoral degree psychology program for the requisite three to five years required to complete such a program. The American Psychological Association (APA) is an accrediting agency for graduate programs in psychology. It does not mandate a single model of training for doctoral psychology programs and students but rather recognizes various models of training. The Fielding doctoral psychology program was designed to encompass the traditional areas of training and psychology within a non-traditional, multi-locational system of training. Fielding psychology students and faculty are disbursed throughout the country, where they are fully engaged in the educational program of the institute, which is developed and supervised at the Fielding administrative headquarters in Santa Barbara, California. During the period 1981 to 1986, the relevant period in this proceeding, when the Petitioner was a student with the Fielding Institute, Fielding's geographically disbursed doctoral students attended periodic regional seminars and sessions with faculty and students at various locations around the country. The doctoral program at Fielding is not accredited by the APA. It was not accredited by that agency during the time the Petitioner was enrolled in and graduated from the program. The Petitioner applied to the Board for licensure by examination in Florida. The Board denied that application finding that the program at Fielding was not comparable to programs accredited by the APA because the program at Fielding failed to meet certain specified requirements of Rule 21U-11.006(1)(b), Florida Administrative Code. The Petitioner requested a formal hearing challenging that denial and the subject proceeding ensued. Student Enrollment and Core Curriculum The students and the faculty enrolled in and conducting the Fielding degree program are dispersed throughout the country. The admission procedure for the school commences with a written application and a field interview with a geographically available faculty member. Selected applicants are then invited to come to the Santa Barbara headquarters of the institute for a mandatory week long dialogue with other faculty members concerning the specifics of the doctoral degree program and the expectations regarding the student's participation in it. Fielding admitted students into the doctoral degree program three times a year using this process. During 1981 through 1986 the Fielding program had an identifiable body of students who matriculated into the program for a doctoral degree, although the students were dispersed throughout the country, studying in their own communities. All doctoral psychology students at Fielding during 1981 through 1986 were full time students, paying full tuition and pursuing their curriculum within established time limitations. The focus of the program at Fielding is the "learning outcome", which is described by Fielding as an evaluation of the competency of students within the "various dimensions of knowledge and skill that are involved in training a psychologist." A student's "learning outcome" is first evaluated by the program when a student is accepted by the program, which credits its students for knowledge and experience gained in their professions prior to entry into the program. A student is invited by the administrators of the Fielding program to submit any information which a student believes will substantiate the student's readiness to engage in the study program the student seeks to choose, out of the curriculum offered by Fielding. When a student is accepted by the program the student formulates a "blueprint" in which the student acknowledges previous expertise and discusses how he or she plans to use the Fielding program in meeting its requirements. This blueprint is called a "learning contract", entered into by the student with the student's faculty advisor and program director and approved by those persons. With the guidance of those faculty members, Fielding students, like the Petitioner, propose their own "learning contracts" to the Fielding administrators or faculty advisors, encompassing a curriculum for themselves which takes into account their own previous learning experiences and professional experience. In this process of arriving at a "learning contract", the student can take into account and allow for the student's personal concerns and professional goals but must still complete the Fielding-required curriculum in all the required study and knowledge areas in terms of academic, clinical and internship requirement parameters. The Fielding faculty designed the psychology curriculum, administered it, wrote the student guides or bulletins and produced seminars for instructive development during the time the Petitioner was enrolled, but the program did not offer classes of instruction in the formal, scheduled sense during that time. The required Fielding psychology curriculum could be completed in a different sequence by each student based on the individual student's previous experience, learning and needs. The sequence could be designed by the student although the curriculum itself was designed by the Fielding faculty and administrators. The Fielding students then would enter into the learning contract with the Fielding faculty and administrators. The contract would individualize the sequence of their program, as chosen by them, but it still had to fall encompass the required core of study, taking into account their own professional experience and their own professional goals, post-degree award. The learning contract reflected an agreement between the student and the Fielding faculty and administration that various required academic objectives, as defined by the faculty, would be satisfied by the student in a particular sequence and on a particular time table. Learning contracts are an accepted educational tool for designing a course of study both in psychology and in other disciplines. The psychology program at Fielding during the 1981 to 1986 period, when the Petitioner was enrolled, was an organized, integrated course of study designed by the psychology faculty of that institution who were responsible for the program's administration. The students had substantial latitude in the sequence of study arrived at for completing that program based upon the individual student's previous learning and professional experience as well as professional goals for the future. The control that the Fielding faculty maintained over the students course of study and progress through the program consisted of the faculty designing the program curriculum and the faculty's required approval of the students learning contracts. Institutional Requirements The Fielding doctoral program for 1981 to 1986 required the equivalent of a minimum of three academic years of full time graduate study in the Fielding program. Although its course bulletin, published in 1984, the one relevant to this proceeding, did not specifically contain a published minimum three academic year requirement, in practice the program had such a requirement. No student ever completed the doctoral psychology program at Fielding in less than three years, however, students were expected to complete the program within five years. The Fielding doctoral program does not give academic transfer credit for course work completed at other institutions. Credit is only given for satisfactory completion of the knowledge areas defined by and evaluated by the Fielding psychology faculty. Organized, Integrated Sequence of Study Designed by the Psychology Faculty The Fielding Institute employs the scholar-practitioner student training model for its doctoral students in psychology. That training model has three components: (a) the academic component, (b) the clinical training component, and (c) the research component. The academic component of the program was divided into twelve required "knowledge areas", encompassing the broader areas of clinical psychology, neuropathology, and psychopathology. The Fielding faculty provided a study guide for each knowledge area defining the parameters of that area, the resources to be applied in successfully completing that knowledge area, identifying the faculty who were experts in that area and the students' requirements for completing that area. During the 1981 to 1986 period each student was required to complete all required knowledge areas and to demonstrate competence through a comprehensive examination. The clinical training component required a minimum of 600 hours of clinical training, in a modality or area of practice other than the one for which the student had received prior training or experience before enrolling at Fielding. Student competency in clinical psychology was evaluated after the clinical training program, through a clinical examination. Successful students then proceeded to a formal clinical internship. During 1981 through 1986, the clinical internship in psychology consisted of a minimum of 1600 hours of supervised experience. After completion of the clinical training component, competency was evaluated through a "final clinical assessment." The research component resulted in a formal dissertation by the student. Students were required to prepare a concept research paper, which was expanded into a research proposal and finally into a dissertation, presenting the research and its results. Each Fielding doctoral student, including Petitioner, was required to participate simultaneously in the three program components, academic, clinical and research, during his entire tenure with the Institute, during the years when the Petitioner was enrolled. A program bulletin is a formal statement by an institution of the content and operation of its academic programs. The Fielding program bulletin for 1984 was the bulletin in effect when the Petitioner was enrolled in and graduated from the psychology doctoral program there. The program bulletin seemed to imply that the sequence of study and curriculum was designed by the students, rather than by the faculty. In fact the greater weight of the evidence indicates that that is not precisely the case, rather it shows that the faculty designed the curriculum and program, although the students had considerable latitude in choosing the sequence in which they would embark upon and complete the various courses or areas of study required to be completed by the faculty-designed curriculum. The bulletin also seemed to imply that the student, rather than the faculty, designed the elements of their own course work. In fact the greater weight of the evidence shows that certain course work is required by the curriculum designed by the Institute's faculty, although the students had choices regarding when certain course work would be embarked upon and courses could be elected in a student's desired area of emphasis, so long as the overall requirements of the curriculum were accomplished in less than five years. The program at the Fielding Institute however did not, and does not now, require its students to have "continuous access to faculty". Rather the program at Fielding offered study groups and periodic seminars and sessions during the time the Petitioner and other students were enrolled and graduated from that program but there was no showing how frequent those study groups, periodic seminars and sessions with faculty members and with other students were conducted or scheduled. Although the Petitioner maintains, in essence, that a residency-on- campus requirement such as is contained in the subject rule, is designed to achieve nothing more than the assurance of a minimum number of contact hours between students and faculty and students with other students, in fact a residency requirement is equally designed to ensure that there is administrative control by the faculty and administrators of the institution over the maintenance of quality of the program. The Fielding program did not develop a residency requirement until after the Petitioner had graduated from it. The Fielding Institute purports to have had an informal residency requirement during the time the Petitioner was enrolled prior to 1986. That requirement, which is not in the program bulletin, purported to require students to have as many hours of contact with the faculty that students would have had at programs accredited by the APA. There was no evidence presented however to establish the number of hours that students in APA programs have access to faculty members. Nor was there any evidence of the number of hours that Fielding students were informally required to have access to Fielding faculty nor to other students. There was nothing of record to support the contention that the number of hours Fielding required its students to have contact with faculty or other students was comparable to the number of hours students in APA approved programs had access to faculty members or other students. There is simply no evidence to show the number of hours required for such faculty and student contact, if indeed it was required, nor the number of study groups, periodic seminars and sessions between students and faculty which were scheduled and conducted whereby the students and faculty, who admittedly are dispersed across the nation, could have accomplished such faculty-student contact hours. Thus the program at Fielding, both as published in the bulletin, and as put into practice has not been shown to have required its students to have one year in residence ". . . at the institution full time." The subject rule provides that the residency requirement is met when it is shown that the program provides "continuous access" to the faculty and to other students with a period of continuous enrollment of not less than two out of three successive semesters "on the campus" of the institution from which the doctoral degree was granted. The Petitioner did not prove that Fielding actually has a campus. Although the rule contains no definition of the word, "campus" is a word with a plain and ordinary meaning. The meaning given by the Petitioner's witness to the word "campus" is not the plain and ordinary meaning of the word. The plain and ordinary meaning of the word "campus" encompasses, but is greater than the Petitioner's concept of a "locality that students and faculty meet for educational purposes." The Petitioner failed to establish when, where and how often the periodic seminars meetings and sessions were scheduled and conducted for faculty and students to meet for educational purposes, as well as for students meeting with other students. Consequently, even under the concept of the meaning of the word "campus" espoused by the Petitioner, it has not been established that Fielding Institute effectively required a period of continuous enrollment of not less than two out of three successive semesters on a campus of that institution from which the doctoral degree was granted. After 1986 Fielding responded to residency accreditation requirements of the APA by requiring documentation of the 1981 through 1986 methods of "regional professional socialization and association between faculty and students," formalizing the documentation of those "contact hours" as a graduation requirement. The Petitioner maintains that prior to 1986 the students were required to achieve their contact hours with other students and with faculty as a graduation requirement, that the nature of student-faculty and student-student contact hours did not change for the psychology students of Fielding after 1986 and that only the documentation requirement was added. The Petitioner maintains that Fielding students currently document the face to face contact hours between themselves, faculty and other students (not telephone contacts) in order to approximate the types of contacts available at a traditional single-site university campus program. The Petitioner, however, did not prove that the Petitioner and other Fielding students engaged in the program from 1981 to 1986 actually achieved a level of contact hours with faculty and other students for educational purposes which were comparable to those which could be achieved by students in such a doctoral program in full time residence at a traditional, university-based program. Although students were said by the Petitioner to have access to the faculty twelve months out of the year, because the evidence also shows that faculty and students are dispersed all over the country, it has not been demonstrated that the Petitioner or any other student could have ready access with any or all faculty members guiding the student, including the Petitioner's particular program, continuously through twelve months of the year or on any other frequently occurring basis. Cognitive-Affective Basis of Behavior The 1984 Fielding catalogue or bulletin did not include a discreet knowledge area or course of study published therein entitled "Cognitive- Affective Basis of Behavior." In practice however, the 1981 through 1986 Fielding doctoral program, which the Petitioner completed, did provide required academic course work in the area of cognitive-affective basis of behavior. This subject matter, "learning, memory, motivation, thinking, cognition theory" was incorporated into the other defined knowledge areas operated and required by the institution. It has been demonstrated that Rule 21-11.0006(1)(b)5., 7., 9., and 10B., Florida Administrative Code sets out standards of training that are comparable to standards of training of programs accredited by the APA.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That the Petitioner's application for licensure by examination as a psychologist should be denied. DONE and ENTERED this 31st day of July, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1. - 6. Accepted. 7. Accepted, but not in itself materially dispositive. 8. - 30. Accepted. 31. - 33. Accepted but irrelevant. Accepted. Accepted, but not itself materially dispositive and subordinate to the hearing officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive and subordinate to the hearing officer's findings of fact on this subject matter. Accepted but not itself materially dispositive and subordinate to the hearing officer's findings of fact on this subject matter and rejected in the sense that it has not been proven that the types of contacts available to students with faculty and with other students approximates the types of contacts available at a traditional single site university. Accepted, but not itself materially dispositive and subordinate to the hearing officer's findings of fact on this subject matter and rejected in the sense that it has not been proven that the types of contacts available to students with faculty and with other students approximates the types of contacts available at a traditional single site university. Rejected, as not in accordance with the greater weight of the substantial competent evidence and subordinate to the hearing officer's findings of fact on this subject matter. Accepted, but irrelevant. Accepted, but immaterial. Rejected as not in accordance with the greater weight of the substantial competent evidence and subordinate to the hearing officer's findings of fact on this subject matter. Accepted but not itself materially dispositive and subordinate to the hearing officer's findings of fact on this subject matter. - 45. Accepted. Respondent's Proposed Findings of Fact 1. - 9. Accepted, however, the opinions of Dr. DePiano derive from his one day site visit are not in their entirety accepted in the above findings of fact and conclusions of law. 10. - 19. Accepted. 20. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. 21. Accepted. 22. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and not entirely in accordance with the greater weight of the evidence. 23. Rejected as not entirely in accordance with the greater weight of the substantial competent evidence and as subordinate to the hearing officer's findings of fact on this subject matter. 24. Accepted. 25. Accepted as to its first sentence but otherwise subordinate to the hearing officer's findings of fact on this subject hearing. 26. - 28. Accepted. 29. - 31. Accepted. 32. Rejected as not entirely in accordance with the greater weight of the evidence and as subordinate to the hearing officer's findings of fact on this subject matter. 33. Rejected as not entirely in accordance with the greater weight of the evidence and as subordinate to the hearing officer's findings of fact on this subject matter. 34. Rejected as not entirely in accordance with the greater weight of the evidence and as subordinate to the hearing officer's findings of fact on this subject matter. 35. Accepted. 36. Rejected as not entirely in accordance with the greater weight of the evidence and as subordinate to the hearing officer's findings of fact on this subject matter. 37. Accepted but not itself materially dispositive of this issue. 38. Accepted. 39. Accepted. 40. Accepted. 41. Accepted. 42. Rejected as not entirely in accordance with the greater weight of the evidence and as subordinate to the hearing officer's findings of fact on this subject matter. 43. Accepted. 44. Accepted as to the first sentence of the proposed finding of fact, the last sentence is rejected as subordinate to the hearing officer's findings of fact on this subject matter and as not entirely supported by the greater weight of the evidence. COPIES FURNISHED: Bruce Rogow, Esquire 2441 S.W. 28th Avenue Fort Lauderdale, FL 33312 Beverly A. Pohl, Esquire 350 S.E. Second Street Suite 200 Fort Lauderdale, FL 33301 Virginia Daire, Esquire Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, FL 32399-1050 Dan Bosanko, Esquire Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, FL 32399-1050 Linda Biederman, Executive Director Board of Psychological Examiners 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner, Brevard County School Board (Petitioner or Board), has just cause to terminate Respondent, Emily M. Randall (Respondent or Randall) from employment with the school district.
Findings Of Fact The Parties Petitioner is the entity charged by law with governing and administering the Brevard County School District and is responsible for all employees of the school district. Disciplinary actions, such as the instant case, fall within the jurisdiction of the Board. At all times material to this case, Respondent was an employee of the School Board who served as an itinerant school psychologist. The Charges By letter dated December 9, 2014, Superintendent Binggeli recommended Respondent be terminated from her position with the Board. The letter claimed Respondent had been willfully absent without leave; had failed to follow directives of her supervisor, constituting gross insubordination and willful neglect of duty; had repeatedly lied to supervisors, constituting misconduct in office; and had reported to a disciplinary meeting in a condition violating the Drug-Free Workplace Policy, constituting misconduct in office. Respondent asserts that she should not be terminated for acts or omissions occurring prior to November 21, 2014, and that the Board failed to properly establish Respondent was “intoxicated” on that date. Background Information Petitioner employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. As a school psychologist, Respondent was responsible for conducting psychological evaluations for students who may require services for learning disabilities, emotional handicaps, or behavioral disorders. Psychological assessments are critical to the evaluation of exceptional students and serve to assist instructional staff to provide appropriate educational plans for students meeting criteria for support services. It is critical that such evaluations be timely performed, documented in accordance with law, and communicated to the appropriate personnel so that exceptional students may receive needed services. Eligible students do not receive exceptional services until all documented paperwork is completed. At all times material to this case, Respondent was required to complete her psychological educational assessments within 60 days. All school psychologists, including Respondent, were assigned as “itinerant” workers. Typically, school psychologists are directed to work at three or four schools. At each school the school psychologist teams with instructional staff, guidance counselors, and administrators to forge appropriate plans for exceptional students. The school psychologist is an essential member of the team. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with all those involved. Additionally, school psychologists must respond to crisis situations as directed by the coordinator of psychological services. It is essential that the Psychological Services Department (Department) know the schedule of all school psychologists and be able to reach them by telephone. Beginning in August of 2013, the coordinator of psychological services, Dr. Maggie Balado, gave all school psychologists her personal contact information so that absences from work could be promptly reported. School psychologists were given the option of contacting Dr. Balado directly or the Department’s secretary, Ms. Beyer, if they would be absent from their scheduled school assignment. Requiring school psychologists to contact the Department to report absences was a continuation of the policy that pre-dated Dr. Balado’s appointment to the coordinator position. In September of 2013, Dr. Balado also advised all school psychologists that they would be required to comply with the 60-day guideline for completing student evaluations. The requirement also pre-dated Dr. Balado becoming the coordinator. Performance Concerns In January of 2014, Dr. Balado learned that Respondent had been absent on December 17 and 19, 2013, and January 6 and 7, 2014. Because Respondent had not reported the absences as required by the Department policy, Dr. Balado reminded Respondent of the correct protocol for missing work and directed her to comply with the policy in the future. At all times material to the allegations of this case, Respondent had adequate leave time to miss work. Reporting the absence was still required by the policy. School psychologists are required to complete personnel allocation forms to allocate and track funding. Respondent failed to timely complete the funding forms despite being reminded. When Dr. Balado completed the performance evaluation for Respondent for the 2013-2014 school year, she noted that Respondent was out of compliance with four student evaluations and had 29 referrals that were to be completed for the school year. As a result, Dr. Balado rated Respondent as needing improvement in the categories of managing the learning environment, ethical leadership, and technology. Dr. Balado met with Respondent to go over the concerns and Randall indicated that she would work to improve her performance. Dr. Balado then met with Dr. Beth Thedy, assistant superintendent for Student Services, and decided to place Respondent on a professional development assistance plan to identify the issues that needed improvement and give Respondent a plan to show performance improvement. On August 18, 2014, Dr. Balado and Dr. Thedy met with Respondent to go over the performance issues and to discuss the improvement plan. Respondent did not raise any questions regarding what was expected. Despite being aware of the improvement plan, Respondent did not meet compliance standards for student evaluations. Moreover, Respondent never suggested to Dr. Balado or Dr. Thedy that an accommodation was needed in order for her to meet compliance standards. On October 2, 2014, Respondent did not timely respond to Dr. Balado’s attempts to contact her. Tangled Webs Were Woven On October 30, 2014, Respondent was assigned to be at Coquina Elementary School (Coquina Elementary) in Titusville. The school is located approximately 40 minutes from Respondent’s home, and she was to be there to watch a meeting with Enis Messick, the guidance counselor. After the meeting with Ms. Messick, Respondent planned to evaluate a student. Due to technical difficulties unknown to Respondent, Ms. Messick’s meeting was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. Respondent did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. Failing to report her absence in accordance with prior directives, violated the attendance policy for the Department. Respondent had adequate leave to be absent from work on October 30, 2014. Failure to telephone her absence or e-mail the proper persons was a violation of a reasonable directive given to her on more than one prior occasion. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent (encompassing Coquina Elementary School), contacted Dr. Balado and informed her that Respondent was not at her assigned school that day. Thereafter, Dr. Balado telephoned Respondent and asked her where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary School when she was not (Lie #1). Suspicious of this statement, Dr. Balado directed Respondent to go into the school office and call her back on the landline at the school. Although Respondent indicated she would do so, she did not (Lie #2). Dr. Balado then called Coquina Elementary’s Principal Katrina Hudson who advised that Respondent had not been seen at the school that day (hearsay later corroborated/admitted by Respondent at a later date). Respondent, next, told Dr. Balado that she went into the school’s office as directed but did not feel comfortable using the school’s telephone to call her back (Lie #3). Dr. Balado was understandably concerned that Respondent had misrepresented the events of October 30, 2014. Dr. Balado, next, communicated the events of October 30, 2014, to Dr. Thedy who placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, a meeting was held to review the events of October 30, 2014. Present were Dr. Thedy; Jim Hickey, director of Human Resources and Labor Relations; and Respondent. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30, 2014, and that she could prove it (Lie #4). Respondent said Enis Messick would verify she had been at Coquina Elementary on October 30, 2014 (Lie #5). Ms. Messick did not see Respondent at the school on the date in question. Ms. Messick corroborated that Respondent had phoned her to advise that she would not be at the school. Respondent later stated that she had sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014 (Lie #6). None of Respondent’s initial accounts of the events of October 30, 2014, were true or justified not reporting her absence as required by her supervisor, Dr. Balado. Finally, when Mr. Hickey requested that Respondent provide a written statement setting forth the events of October 30, 2014, Respondent relented and admitted she had previously lied. The Aftermath Following Respondent’s admission and further consideration of her behavior by Mr. Hickey, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. At the November 12, 2014, meeting, Respondent claimed that she had filed for an accommodation to assist her so that she could timely prepare the reports required by her job. Respondent claimed that in 2010, she had made Petitioner aware of her need for an accommodation due to a wrist problem that made typing difficult. To address the accommodation request in 2010, Petitioner provided Respondent with a dictation software program known as Dragon. The software allowed Respondent to dictate the portions of her reports that required typing. After the software was provided, Respondent did not renew her request for an accommodation nor did she suggest the solution provided by the Board was inadequate to meet her needs. At all times material to the conversations between Respondent and Dr. Balado, Randall never mentioned a physical limitation kept her from meeting the timelines applicable to her work. Respondent’s late-mentioned comment regarding this 2010 accommodation has not been deemed credible or persuasive as a basis for not completing her work assignments in a timely manner. The performance improvement plan developed by Dr. Thedy and Dr. Balado would have appropriately addressed the deficiency in Respondent’s work. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the Board. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding Respondent’s performance and behavior. In anticipation of the November 21, 2014, meeting, Petitioner’s staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze to her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as Petitioner hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of the offer. On November 21, 2014, Respondent, her husband, and her lawyer met with Mr. Hickey, Dr. Thedy, and Dr. Balado. Based upon Respondent’s behavior and demeanor at the meeting, Petitioner’s attendees became suspicious of Respondent’s condition. Respondent’s demeanor shifted from crying and emotional to questioning and anger. Respondent was disheveled, her eyes were red and watery, her skin was flushed, and she was shaking. Coupled with what Mr. Hickey, Dr. Thedy and Dr. Balado noted was a strong odor of alcoholic beverage, Respondent’s demeanor gave Petitioner’s employees the concern that Respondent was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. After being directed to undergo a reasonable suspicion breathalyzer examination, Respondent submitted to the test performed by Kathy Krell, the Drug and Alcohol Program Administrator for Petitioner. Ms. Krell has been fully-trained to administer breathalyzer examinations, has held the position with the Board for over 20 years, and has performed thousands of tests, such as the one given to Respondent. Ms. Krell performed Respondent’s examination in accordance with all testing guidelines and as routinely completed in the regular course of business for the Board. The final results of Respondent’s breathalyzer demonstrated that on November 21, 2014, at approximately 2:45 p.m., Respondent had an alcohol level of .104. This level is above the legal level for driving in the State of Florida. Respondent voluntarily submitted to the breathalyzer examination and has provided no credible explanation for the test results. Instead, Respondent challenged the results and maintains that her conduct, demeanor, appearance, and test results do not establish that she was intoxicated on November 21, 2014. It is determined that contrary to Respondent’s assertion, on November 21, 2014, at approximately 2:45 p.m., while attending a school meeting on School Board property to address her future employment with Petitioner, Respondent was under the influence of some alcoholic beverage or substance such that she was, in fact, impaired or intoxicated. To suggest that she was fully capable of functioning with an alcohol level of .104 is both contrary to common sense and the facts of this case. Respondent failed to maintain a professional demeanor and was unable to maintain a consistent appearance and behavior. When the results of the breathalyzer were made known to the parties, Petitioner withdrew the disciplinary offer then pending for Respondent’s acceptance. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to Petitioner’s employment assistance program (EAP). The EAP is available to Board employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges their issue, participates, and agrees to seek help for their problem, the employer typically works to return the employee to the work environment. In this case, Dr. Binggeli recommended that the Board terminate Respondent’s employment on December 9, 2014. At its December 16, 2014, meeting, Petitioner voted to terminate Respondent’s employment with the school district and the instant administrative challenge to the decision ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s employment with the Brevard County School District be suspended until such time as Respondent can show that she has successfully completed continuing educational courses related to the ethical standards expected of her, that her salary be frozen at the level of compensation for the 2013-2014 school year, that she does not receive any back pay or other compensation for the duration of her suspension, and that she be placed on a professional improvement plan to assure monitoring and compliance with all requirements of her job. DONE AND ENTERED this 30th day of December, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of December, 2015. COPIES FURNISHED: Wayne L. Helsby, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Scarlett G. Davidson, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 (eServed) Joseph E. Culmer, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 Dr. Desmond K. Blackburn, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in this case are whether the Petitioner's application for a provisional license as a psychologist and/or the Petitioner's application for licensure as a psychologist by examination should be granted or denied.
Findings Of Fact In 1987, the Petitioner earned a doctorate degree in Psychology, the Psy.D. degree, from the Caribbean Center for Advanced Studies in San Juan, Puerto Rico. The psychology program at the Caribbean Center for Advanced Studies was not accredited by the American Psychological Association (APA) during the time the Petitioner participated in that program. 4/ At all times material to this case, the APA has been the only credentialing agency for psychology programs recognized by the United States Department of Education. The Petitioner filed applications for provisional licensure and for licensure by examination with the Board of Psychology on February 23, 1998, and on March 19, 1998, respectively. On August 7, 1998, and on August 12, 1998, respectively, the Board of Psychology issued and served notices of intention to deny the Petitioner's applications for provisional licensure and for licensure by examination. The Board notice issued on August 7, 1998, read as follows, in pertinent part: Notice is hereby provided that the Board of Psychology (Board) intends to DENY the application for provisional licensure. The Board reviewed and considered the application for licensure at the regularly scheduled Board meeting held on June 28, 1998, in Key West, Florida, and has determined that it be DENIED. As grounds therefore, the Board states that the applicant failed to demonstrate that her degree was augmented in or obtained from a program comparable to a program accredited by the American Psychological Association (APA). Rule 64B19-11.0035 of the Florida Administrative Code requires an original, signed letter, on official letterhead sent directly to the Board from the director of an APA accredited doctoral psychology program that confirms the comparability of the applicant's program to an APA accredited program. The letter must enumerate the exact documents that were reviewed in determining comparability. While the letter submitted on behalf of the applicant indicates that academic records were reviewed, the exact documents are not disclosed. Additionally, according to the application transcripts, the applicant had insufficient coursework in the field of Psychology to have earned a degree comparable to a degree from an APA accredited program. The institution she attended awarded the applicant a minimum of 18 transfer credits for courses taken in the filed of Social Work. WHEREFORE, the Board voted to deny the application. The Board notice issued on August 12, 1998, advised the Petitioner of the Board's intention to deny her application for licensure by examination for reasons identical to those quoted above. The Petitioner requested, and was granted, an informal hearing before the Board of Psychology on both of her applications. Following an informal hearing (which the Petitioner attended without benefit of legal counsel), the Board of Psychology issued a Final Order denying both of the Petitioner's applications. That Final Order (which has since been reversed) 5/ read as follows, in pertinent part: THIS MATTER came before the Board of Psychology (Board) for final action pursuant to section 120.569, and subsection 120.57(2), Florida Statutes, at a duly- noticed public meeting of the Board on December 4, 1998, in Orlando, Florida, for the purpose of a hearing not involving disputed issues of material fact based on the Board's Notice of Intention to Deny Application for Licensure by Examination and Notice of Intention to Deny Application for Provisional Licensure, copies of which are attached to and made a part of this Final Order, as Exhibits A and B. Applicant Magalis Aguilera participated in the hearing before the Board. After a complete review of this matter, including the evidence presented by Applicant, the Board made the following findings of fact and conclusions of law:
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board issue a final order in this case denying the Petitioner's application for a provisional license, and granting the Petitioner's application to take the licensure examination. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2000.
The Issue Whether petitioner should pass the Level III Behavior Management Certification examination given by the Department of Health and Rehabilitative Services (HRS) on June 28, 1985.
Findings Of Fact The Developmental Services Program Office in HRS is the office responsible for the Behavior Management Certification examination. The concept of a certification exam arose out of a commitment to improve and to increase the capabilities of the people who were providing behavioral programs to developmentally disabled people in Florida. In December of 1982 or January of 1983, HRS contracted with Instructional System Design, Inc., to design an examination that would ensure that the persons who passed the examination were persons who possessed proficiency and competency in the field of behavioral management or behavior analysis. Instructional System Design, Inc., also was to design and prepare a curriculum guide that would aid individuals in becoming proficient in behavior management. However, the examination was designed first and then the curriculum guide was prepared to cover the major content areas which were reflected in the examination. The Behavior Analysis Curriculum Guide had not been completed before petitioner took the examination, which was the first time the examination was offered. At that time, the curriculum guide was still in draft form. PREPARATION OF THE TEST The model used for constructing this examination was a domain referenced test model. Items are included which assess every competency. Ms. Goodson, the president of Instructional System Design, Inc., and designer of the examination, assembled an interdisciplinary team which included representatives of HRS and experts in the field of behavioral psychology. Specific competency areas, or content domains, were determined and arranged in competency clusters on the examination. For example, Competency Cluster #1 has to do with making legal and ethical decisions about when to intervene. Competency Cluster #3 relates to observing and recording behavior, and Competency Cluster #6 involves the application of behavioral procedures. The number of questions in each cluster relates to the number of tasks, or subtopics, within the particular competency area. The purpose of designing a test in this manner is to make sure that a question is included in the test that will evaluate proficiency in each defined competency and task within the competency. The content standard was established by the interdisciplinary committee. It was agreed that the minimum standard would be that the content would have to be included in two widely used textbooks and not successfully refuted in any other textbook. This minimum standard was designed to overcome any biases that may exist in any one particular form of training. Two forms of the examination were prepared, Form A and Form B. However, each form was prepared to assess the same competencies. For example, question 2-1 on Form A was designed to assess the same competency and task as question 2-1 on Form B. HRS requested that two forms of the examination be prepared. After the first draft of the examination had been prepared, and content experts reviewed and made revisions to the questions, a field review of the examination was conducted. Thirteen different reviewers were asked 28 questions about each test item. One of the 28 questions was the correct answer, and the other 27 questions asked other information about the particular question. The other 27 questions were asked to ensure that each test question was valid, that the question was clear, and that it was representative of the competency area that it was attempting to assess. None of the field reviewers reviewed all 156 questions, but all questions were reviewed. The examination was not field- tested by actually giving the entire exam to a small group of people because it was felt that it would be impractical to get 15 to 20 people to voluntarily submit to this rigorous an examination for the purpose of field-testing without getting certification. Field review appeared to be more practical and provided more information about the validity of each item. Since there appeared to be no reason to weigh any particular item, so that some items would count more than others, it was agreed that each item would count as one point. It also was determined that more than one person would score the examination to provide a double-check on the scoring process. Since some of the examination questions were essay questions, it was determined that the scorers would be experts in the field with the capabilities to assess the answer given using the standards set forth in the answer key as a guideline. If the two scorers disagreed on the correctness of an answer, the scorers would confer with each other to resolve the difference. TEST ANALYSIS After the first administration of the examination in June of 1985, Dr. Beard, a professor at Florida State University and an expert in testing, conducted a test analysis. Dr. Beard took the data, the indication of whether the items were right or wrong, coded them onto computer records, and computed a large number of statistical items. He computed the P-value of each item, the proportion that answered each item correctly. He computed the points by serial correlation between each item and the total scores. He also computed the frequency distribution of scores, means, standard deviations, and other descriptive statistics of the scores. After this was done, Dr. Beard determined that the two forms of the test differed in difficulty. He therefore applied an equating or calibrating procedure to adjust the difficulty of one form to that of the other. In other words, although each exam form was designed to test the same knowledge and skills, unintended differences in test difficulty from form to form gave an advantage to people taking the easier form. Therefore, it was necessary to convert the scores obtained on one form to the units on the other form, a process called test equating. Form A was the easier form; and therefore, the raw scores on Form A were equated to the scores on Form B. The test analysis also revealed that certain of the test items did not have desirable measurement properties. In any test, some items discriminate better between those who have a large amount of the knowledge being tested and those who do not have. An item that does not discriminate well will show a negative discrimination index. An item showing a negative discrimination index detracts from the measurement properties of the test. Therefore items that have negative discrimination indices should not be included in scoring an examination unless the elimination of the items would destroy the content validity of the examination. Out of the 156 questions on this examination, 31 of the items had a negative discrimination index. Because the elimination of these items did not affect the content validity of the exam, the 31 questions were eliminated. The elimination of these negative indicators did not affect the validity of the exam, and the inclusion of any negative indicator in an examination detracts from the reliability of the exam. CUT-OFF SCORE COMMITTEE The passing score on the examination was determined by a cut-off score committee. The committee was composed of a group of individuals representing practitioners, clients, and persons involved in the administration of the examination. The committee was given statistical information concerning the exam. The committee discussed the consequences of setting too high a passing score and the consequences of setting too low a score. Establishing a passing score by a committee that is aware of both the content of the examination and the impact of choosing a particular score is an acceptable method for determining a passing grade on an examination. After a complete review of the examination and consideration of the statistical information, each member of the committee wrote down a recommended passing score. There was a wide variation in the recommended passing scores. However, after further discussion a consensus was reached, and the ultimate cut- off score voted upon was approved unanimously. The cut-off score was set at 86 out of 125 items, or 68.8 percent. Thirty-three percent of the people taking the examination passed it. PETITIONER'S EXAMINATION Out of the original 156 questions on the examination, petitioner was scored with having answered 105 questions correctly. Of the 31 items eliminated, petitioner answered 21 correctly and missed 10. Of the 125 items which HRS counted on the examination, petitioner answered 84 correctly. However, petitioner took Form A of the exam, and petitioner's raw score of 84 on Form A was the equivalent to a score of 80 on Form B. Therefore, petitioner's equated score was 80. To pass the examination, petitioner would have to have received at least six more points. The deletion of the 31 items from the test served to make the test more reliable. However, had the 31 items not been deleted from the test, petitioner would have gotten the identical percentage of correct answers as he did after the elimination of these items. Therefore, the deletion of the items did not adversely affect the petitioner. The equating of scores is an acceptable testing procedure and adds to the fairness of the test. However, even if petitioner's score had not been equated, he would not have passed the exam. Further, if petitioner's score had not been equated, the scores of the other 49 individuals who took Form A also would not have been equated. This would have raised all of those raw scores and could have resulted in a higher cut-off score being chosen. Because the elimination of negative indicators and the equating of scores on two different forms of an exam are both acceptable-testing procedures, petitioner's contention that he should pass the exam must be based upon a showing that he answered correctly at least six of the questions that he was scored as missing. PETITIONER'S EXAMINATION ANSWERS Petitioner's exam was graded by Dr. James Johnston and Dr. Standler. Dr. Standler and Dr. Johnston initially disagreed on only four of the answers given by petitioner on the essay questions. However, there was no evidence presented concerning whether the disagreement on the four questions was resolved adversely to petitioner. Although petitioner did not designate in his petition the specific questions he was challenging, at the hearing the following question numbers were mentioned: 2-6, 3-3, 3-7, 4-1, 4-11, 5-4, 5-10, 5-11, 6-6, 6-7, 6-46, 6-48, 9- 2, and 10-8. Dr. James Johnston was the only expert in behavior analysis to testify, and he was called as a witness by both petitioner and respondent. Question 2-6 Question 2-6 requested that the examinee write a functional response definition for the given situation. A functional response definition considers only the effect of the behavior. Petitioner's answer was incorrect because he included in his answer where the behavior occurred, when it occurred, and how it occurred. Therefore, petitioner did not write the functional response definition. Question 3-3 The only evidence presented as to this question was that petitioner's response, C, was incorrect and that the correct answer was answer A. Question 3-7 Dr. Johnston agreed with the petitioner that if one defined "interval recording" as meaning "whole interval recording" there would not be a proper answer to question 3-7. However, the question did not use the term "whole interval recording." Therefore a correct answer was provided in the choices. On his exam petitioner wrote the following note: Our instructor used the term "interval" in time sampling synonymously with the term whole interval only. None of the answers provided are thus appropriate, since none apply to whole intervals. Alternative C is given as answer because it applies to momen- tary time sampling whereas A + B are partial time sampling. . . . Dr. Johnston explained that the use of "whole interval time sampling" as a term is improper since it is the mixture of two different procedures. Time sampling is one procedure, often in the form of momentary time sampling. An interval recording, partial or whole, is a totally different procedure. The question asked the best method for obtaining interval recording data. Petitioner did not correctly answer the question. Question 4-1 Question 4-1 may have been a question that was deleted; however, the only competent evidence presented was that petitioner's answer was incorrect. Question 4-11 There was no competent evidence presented to establish that petitioner answered question 4-11 correctly. Petitioner argued that he correctly displayed the data on the graph provided because he assumed that one of the days was a "no chance" day. When "no chance" day occurs, the data points on either side should not be connected by a line. However, the question did not indicate that the day was a no chance day. Question 5-4 Question 5-4 asked which inference was the most reasonable to be made based on the graph that was provided. Petitioner chose the answer, "The data indicate it would be appropriate to begin the treatment phase on the fifth-day." The correct answer was, "Baseline data should continue to be collected until more representative data are obtained." This answer was the correct choice because there were only four observations reflected on the graph. Four observations are too few, even if the fluctuation in the behavior recorded is not a large fluctuation. Question 5-10 Petitioner simply read the graph incorrectly on this question. The question referred to the duration of the behavior. On a six-cycle chart, a standard behavior chart, duration is plotted on the right-hand axis, not the left-hand axis. On the left side the values get larger going up the scale, but on the right side the values get larger going down the scale. When measuring duration of behavior, if the data points on the chart go in a downward direction it would show that the duration is increasing. The correct answer was not given by the petitioner because he thought the duration was decreasing. Question 5-11 Although petitioner did not give the best answer to question 5-11, the answer recognized in the answer key as the correct answer is also incorrect. Although this question was a flawed question, and therefore should have been deleted prior to scoring, petitioner cannot be credited with a correct answer on the question, since his answer was not the best of the three answers given. In other words, although the answer on the answer key was wrong, petitioner's answer was also wrong. This question simply should not be considered in determining the scoring. Question 6-4 Question 6-4 provided a situation and then asked the question, "What is happening according to the social learning model? The key feature of the social learning theory is "cognitive mediation." Because cognitive mediation is the centerpiece of the social learning theory, petitioner's failure to mention it showed that he did not explain the situation in terms of the social learning theory. Question 6-7 Question 6-7 presented a situation and required that the examinee write "at least two prerequisites that should be established so that the client can maximally benefit from behavioral intervention." Petitioner gave one prerequisite that was correct. However, petitioner did not answer correctly the second prerequisite. The second prerequisite given by petitioner, that the client "will perform simple tasks when instructed to do so," does not address specifically the situation provided. The situation refers to the client being so restless that she runs around the room and rarely stays in her seat long enough to be taught. A prerequisite that must be established so that the client can maximally benefit from the behavior intervention is that the client hold still long enough so the training can proceed. Since this is an important and obvious prerequisite for training, petitioner's answer is incorrect. Question 6-46 Question 6-46 provides the following situation: The teacher wants to keep Sybil on task during class, but Sybil is so restless in the classroom setting on that spring afternoon she is not getting much work done. The question asks, "How could you use negative reinforcement to increase the client's behavior?" Petitioner answered the question by stating; "Nag Sybil until she terminates the aversive stimulus by doing her work (staying on task)." Negative reinforcement occurs when you have an aversive stimulus present and the response terminates the aversive stimulus. From the information given in this question, which information is to be used in answering the question, one should know that an aversive stimulus is present. Since the aversive stimulus is present, the teacher does not have to arrange an aversive stimulus. From the information given, the appropriate negative reinforcement procedure is to tell Sybil that she can leave class, the aversive stimulus, when she does her work. Petitioner's answer requires the teacher to add an aversive stimulus to the situation. Further, petitioner's response pairs the aversive stimulus with the teacher, which should be avoided. Petitioner argues in his proposed recommended order that it might be considered irresponsible and dangerous to let a child leave the classroom where she would be unsupervised. As a practical matter, this may be true. However, there is nothing in the situation given indicating that if Sybil left the classroom she would be unsupervised. Further, petitioner's answer on the exam did not reflect this concern. From petitioner's answer, it is not apparent that petitioner was aware that an aversive stimulus was already present. Therefore, petitioner's response was not a correct answer. Question 6-48 Question 6-48 asks, "How can target behavior be strengthened?" Petitioner chose the alternative, "By making all reinforcing activities for the client contingent on the performance of the target behavior." This answer is unwise and incorrect because it refers to all the reinforcing activities for a client. All the reinforcing activities include a variety of different activities and stimuli that are reinforcing for any particular individual. To try to bring all these together, or make them contingent on the particular behavior, would probably be impossible. Although "increasing the frequency of reinforcement short of satiation" does not mention a contingency, the definition of reinforcement means that there is a contingency between a behavior and some following consequence. Therefore, the latter alternative is the best answer, and petitioner's answer is incorrect. Question 9-2 Question 9-2 provided a situation and asked, "How can you use the AB design to evaluate the behavioral treatment." The examinee was informed that his answer must explain what to do and how to do it. One of the hallmark requirements of an AB design is that behavior is measured until it is stable and a representative picture of what is happening in that phase is obtained. Petitioner's answer did not reflect that data be collected until a stable and representative picture is obtained, and therefore his answer was incorrect. Question 10-8 Question 10-8 set forth a situation involving the staff at a facility. The situation explained that staff members were dissatisfied with the working conditions and complained that raises, work schedules and special privileges were made on the basis of whom the supervisor liked rather than on staff performance. The question asked how the supervision and management system could be changed to make it more effective. The question stated that the answer should explain how the examinee would determine the effectiveness of staff performance and what types of consequences might be provided for performance. Although respondent's answer reflected certain positive reinforcers to use for appropriate performance, petitioner mentioned no negative consequences for a poor performance. Although petitioner mentioned evaluations, by stating "if the measuring instrument to evaluate performance is sufficiently detailed there are likely to be far less disputes regarding evaluations," petitioner does not mention having regular evaluations of the staff. Because petitioner did not include any negative consequences for poor performance, and did not mention regular evaluations as a means of determining the effectiveness of staff performance, petitioner's answer is incorrect. TRAINING PROVIDED BY HRS Prior to taking the examination, petitioner attended training classes conducted by Mr. Stelios Chimonides, an employee of HRS. The training classes were provided by HRS as a means by which practitioners could prepare for the certification examination. However, the training provided by HRS did not cover all the competency areas covered on the exam. Further, Mr. Chimonides used certain terms in training that were not identical to the terms used on the exam. However, the examination was not designed to test the information learned in the HRS training session. The examination was designed to test the practitioner's competency in the field of behavior management. Thus, the quality and thoroughness of the training provided by HRS through Mr. Chimonides is not relevant in determining whether petitioner should pass the exam and be certified by HRS. Further, petitioner did not establish that any of the correct answers on the examination were in conflict with the information provided during training.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered finding that petitioner did not pass the Behavior Management Certification Examination given on June 28, 1985, and that petitioner's request to be certified be denied. DONE and ORDERED this 29th day of May 1987, in Tallahassee, Florida. DIANE A. GRUBBS 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 day of May 1987. APPENDIX The following constitute my rulings, by paragraph, of the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact 1-2. Accepted to the degree relevant in paragraph 12. Accepted to the degree relevant in paragraph 7. Accepted, in that the items were deleted as explained in paragraph 8, the remainder is rejected in that petitioner's statement does not correctly explain a negative discrimination index. Accepted that Dr. Beard's analysis was a statistical one in paragraph 7 and 8. Accepted as stated in paragraph 5. Accepted in paragraph 7. Rejected as irrelevant. 9-10. Accepted to the degree set forth in paragraph 5. Rejected in that all of HRS's witnesses were petitioner's witnesses. Accepted generally in paragraph 1. 13-14. Accepted as stated in paragraphs 2 and 9. 15-23. Rejected as irrelevant or not appropriate findings of fact; however, accept that test was not based on Chimonides' training in paragraph 34. 24-25. Accepted generally in paragraphs 15 and 17. 26-29. Accepted in part and rejected in part in paragraph 20. Witness Shepherd did state that "interval recording" was not used as a synonym for "partial interval time sampling." This is consistent with Dr. Johnston's testimony which indicated time sampling is a totally different procedure from an interval recording, either partial or whole. 30-34. Accepted in part and rejected in part as stated in paragraph 23. Rejected as irrelevant. Rejected by contrary findings. 37-40. Accepted in part and rejected in part as stated in paragraph 25. 45. Accepted in part and rejected in part in paragraph 26. 46-48. Accepted in part and rejected in part in paragraph 27. 49-54. Accepted in part and rejected in part in paragraphs 28-30. 55-56. Accepted in part and rejected in part in paragraph 31. 57-62. Accepted in part and rejected in part in paragraph 33. 63. Rejected by contrary finding in paragraph 35. Respondent's Proposed Findings of Fact Accepted as stated in paragraph 16. Accepted in paragraph 15 and 35. Accepted generally in paragraphs 12-14. Rejected as specific finding as unnecessary, but accepted as true. Rejected as cumulative. 6-8. Accepted to the degree relevant in paragraphs 1 and 2. Accepted in paragraphs 2 and 5. Rejected as irrelevant and not supported by competent substantial evidence. 11-12. Accepted generally in paragraphs 8 and 9. Rejected as cumulative. Rejected as specific finding of fact as unnecessary, but accepted as true. Accepted in paragraph 11. 16-17. Accepted as stated in paragraph 12. Accepted as stated in paragraph 17. Rejected as cumulative. 20-21. Rejected as not findings of fact. COPIES FURNISHED: George Tsismanakis, pro se 403 N.W. 2nd Avenue Okeechobee, Florida 33472 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Paul V. Smith, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
The Issue The issue in this case is whether Respondent, Harriett S. Parets, committed the offenses alleged in an Administrative Complaint issued by Petitioner, and dated July 27, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact 1. Petitioner filed his Administrative Complaint on July 27, 2004, alleging certain material allegations and Statutory and Rule violations and seeking an appropriate penalty pursuant to the authority provided to the Education Practices Commission in Sections 1012.795(1) and 1012.796(7), Florida Statutes. Respondent filed her Election of Rights and requested a formal hearing on August 23, 2004. The parties’ previous attempt at resolving this matter met without success, and a formal hearing was requested which was scheduled for March 1 and 2, 2006. 2. At all times material to the allegations of this case, Respondent, Harriett Parets, was employed as an elementary school teacher in the Broward County School District. 3. Respondent holds Florida Educator’s Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008. 4. Prior to the incidents complained of in this cause, Respondent taught in the Broward County School District without discipline for six years. Respondent was in her seventh year with the system when the allegations of this case arose. 5. Respondent had no prior disciplinary concerns. 6. Respondent had received satisfactory evaluations every year. 7. Respondent had administered the Florida Comprehensive Assessment Test (FCAT) on five prior occasions without incident. 8. During the 2002 school year Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11 through 13, 2003. 9. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video. 10. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited. 11. Teachers at McNab were advised on the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT. 12. In fact, as McNab had received an “A” rating in the past (following good FCAT results), the school had received special funding tied to that performance. 13. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed. 14. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration. 15. In this case, the proctor and several students verified comments from Respondent that deviated from the scripted instructions. 16. Contrary to the scripted instructions Respondent looked at the students’ test booklets, told more than one student to re-examine their work for errors, and pointed out a wrong answer. Respondent announced to the class as a whole that she was “seeing a lot of wrong answers.” 17. The Respondent was not authorized to make comments during the administration of the test. More important, the Respondent was not permitted to assist by any means the students who were taking the FCAT. 18. Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). Respondent knew or should have known that she had been directed to watch the video. 19. Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher’s testing manual. 20. The issues of Respondent’s comments to the class and the level of assistance she had provided to students came to light when a student told her mother of Respondent’s conduct. The mother then contacted a school administrator to make the alleged improprieties known. 21. After determining that Respondent had assisted students in her class, administrators invalidated the test results from Respondent’s class. 22. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an “A” performing school under the state guidelines. Had the results from Respondent’s class been included, the school might have qualified and received recognition as it had in the past. 23. Following a formal hearing on the identical facts, the school district suspended Respondent for thirty (30) days. 24. Respondent has proctored the FCAT every year since the incident, including this year, without problem. 25. The District found that a 30-day suspension plus training was sufficient discipline.
Conclusions Stipulated Conclusions. 26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. 27. Petitioner bears the burden of proof in this case to establish the allegations in the Administrative Complaint by clear and convincing evidence. Petitioner has met that burden. 28. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam. 29. Additionally, Florida Administrative Code Rule 6A- 10.042 prohibits interfering “in any way” with persons who are taking the FCAT in order to assist their performance. Clearly, Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers. 30. By deciding to only suspend Respondent (as opposed to dismissal), Petitioner has recognized her past contribution to the school district. That Respondent blames others for her violation of testing protocols is regrettable. Petitioner has established that Respondent violated testing protocols and should be disciplined. 31. Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint. Other Conclusions. 32. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission (hereinafter referred to as the “EPC”) the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute. 33. The Commissioner has alleged in Count 1 of the Administrative Complaint that Respondent violated Section 1012.795(1)(c), Florida Statutes; in Count 2, that Respondent violated Section 1012.795(10(f), Florida Statutes; and in Count 3, that Respondent violated Section 1012.795(1)(i), Florida Statutes. 34. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude." 35. Section 1012.795(1)(f), Florida Statutes, provides that a teacher may be disciplined if he or she “has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.” 36. Section 1012.795(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she “[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” The Principles of Professional Conduct for the Education Profession in Florida (hereinafter referred to as the "Principles") are set out in Florida Administrative Code Chapter 6B-1.006. Having failed to reference any particular part of the Principles, it is assumed that the allegations of Count 4 are intended to refer to the actual portion of the Principles Respondent violated. Count 4 charges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a), which requires that teachers “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” 37. Given the parties’ stipulation that “Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint,” the only issue which remains to be decided in this case is the appropriate penalty. In recommending a penalty, however, the extent to which the facts stipulated to by the parties actually supports their stipulation as to the statutory and rule violations must be considered. In particular, the Commission should take into account that the facts actually do not support the conclusion that Respondent violated Section 1012.795(1)(c), Florida Statutes, the basis for the alleged violation in Count 1. 38. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992). 39. Florida Administrative Code Rule 6B-4.009(2) defines "immorality" as follows: Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. 40. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality": The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981). Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996). 41. Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows: Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. 42. The court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), observed that moral turpitude: involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. 43. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981). 44. The acts committed by Respondent in this case were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Respondent’s conduct, while inconsistent with the conduct expected of a teacher administering the FCAT, does not constitute an act ". . . which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society." 45. As for the violation of Section 1012.795(1)(f), Florida Statutes, while the parties have stipulated that Respondent's conduct reduced her effectiveness as an employee of the School Board, the facts show that the School Board has considered Respondent's effectiveness as an employee adequate to continue her in its employment and to continue allowing her to administer the FCAT. 46. While clearly inappropriate conduct on the part of the Respondent, her conduct barely constitutes a violation of the other statutory violation alleged in Count 3. Recommended Penalty. 47. Section 1012.795(1), Florida Statutes, gives the EPC the following disciplinary authority: The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, . . . provided it can be shown that the person [violated one of the subsections that follow]. 48. In its Proposed Recommended Order for Appropriate Penalty, Petitioner has requested that it be recommended that Respondent’s certificate be permanently revoked and that she be permanently barred from re-application. Respondent has requested that it be recommended that Respondent’s 30-day suspension by the Broward County School Board (hereinafter referred to as the “School Board”) serve as her penalty in this case. In the alternative, Respondent has suggested that a one- year period of probation be added to the already served suspension. 49. In deciding the appropriate penalty to recommend in this case, consideration has been given to Florida Administrative Code Rule 6B-11.007(3), which provides aggravating and mitigating circumstances to be considered in determining the appropriate penalty in a case such as this: (3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses; The length of time since the violation; The number of times the educator has been previously disciplined by the Commission. The length of time the educator has practiced and the contribution as an educator; The actual damage, physical or otherwise, caused by the violation; The deterrent effect of the penalty imposed; The effect of the penalty upon the educator’s livelihood; Any effort of rehabilitation by the educator; The actual knowledge of the educator pertaining to the violation; Employment status; Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation; Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served; Actual negligence of the educator pertaining to any violation; Penalties imposed for related offenses under subsection (2) above; Pecuniary benefit or self-gain inuring to the educator; Degree of physical and mental harm to a student or a child; Present status of physical and/or mental condition contributing to the violation including recovery from addiction; Any other relevant mitigating or aggravating factors under the circumstances. 50. Based upon the facts stipulated to by the parties, the following mitigating circumstances exist: the offense in this case is a single, isolated one; the actual danger to the public in this incident was minimal; it has been three years since the violation occurred (and in the interim, Respondent has continued to monitor the FCAT without incident); and Respondent has not been previously disciplined by the EPC. 51. The following aggravating circumstances have been shown to exist: Respondent actions deprived students of the educational process, likely resulting in the loss of school funding and hindering the school’s ratings; and a harsh penalty will send the message that Respondent’s conduct will not be tolerated. 52. Petitioner has argued that an additional aggravating circumstance is the failure of any evidence that Respondent has been rehabilitated. In particular, Petitioner has suggested that Respondent lacks any rehabilitation because she has “consistently accused other individuals, including the FCAT’s administrators and supervisors, for her misdeeds rather than accepting the blame.” Petitioner’s argument on this point must be rejected. First, there is no stipulated fact or any evidence that has been offered in this case to support Petitioner’s position. Secondly, Petitioner has failed to consider the fact that Respondent has agreed to the stipulated facts and law which form the basis of this Recommended Order. 53. Ultimately, in recommending a penalty in this case, the most important considerations in this matter should be the extent to which Respondent actually violated the provision alleged in the Administrative Complaint, which has been addressed, supra, and the action taken by Respondent’s employer, the School Board. 54. The extent to which Respondent actually violated the provisions alleged in the Administrative Complaint has been discussed, supra. 55. Just as significantly, the School Board, which, along with the parents and children it serves, suffered the actual harm of Respondent’s conduct, concluded that Respondent was adequately punished by a 30-day suspension rather than termination of her employment. The School Board, therefore, has indicated a willingness to continue to employ Respondent, something it will no longer be able to do if Petitioner’s recommended penalty is carried out. Nor will the School Board be able to continue Respondent’s employment if Petitioner were to suspend Respondent’s certificate for any period of time. 56. Given the School Board’s decision to continue to employ Respondent, any discipline taken by Petitioner should be limited to discipline which will not thwart the local government’s decision to continue to employ Respondent. A suspension of 30 days, considered already served at the time she served her School Board imposed suspension; five years probation; and a requirement that Respondent attend, at her own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered imposing the following penalty: (1) suspending her teaching certificate for 30 days, such suspension to be considered already served; (2) placing her on probation for five years subject to any conditions deemed appropriate by the EPC; and (3) requiring her to attend, at her own expense, any seminars or courses the EPC deems appropriate. DONE AND ENTERED this day 4th day April of, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 4th day of April, 2006.
