The Issue Whether Petitioner's application for licensure as a psychologist should be approved pursuant to Chapter 490, F.S. This proceeding commenced upon the provisional denial by Respondent Board of Psychological Examiners of Petitioner's application for licensure by exception as a psychologist under Chapter 490, Florida Statutes. The denial was based on the Board's determination that Petitioner's doctoral degree was not primarily psychological in nature in that it did not reflect coursework in biological bases of behavior as required by Respondent's Rule 21U-11.05(2)(a), Florida Administrative Code. Petitioner requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer. At the commencement of the hearing, Petitioner was advised of the procedures and her rights in an administrative hearing. She elected to represent herself ate the hearing. At the hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses. She submitted two composite exhibits which were received in evidence. Respondent called one witness and submitted one composite exhibit in evidence. Post-hearing submissions by the parties in the form of a Memorandum by Petitioner and a Proposed Recommended Order by Respondent have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact By application dated May 6, 1982, which was received by Respondent on May 13, 1982, Petitioner Ann M. O'Roark applied for licensure by exception as a psychologist pursuant to Chapter 490, Florida Statutes. The application reflected that Petitioner received an A. B. J. degree in journalism from the University of Kentucky in 1955, a M.Ed. from the University of Florida in 1972, and a Ph.D. from the University of Florida in 1974, with a major in Foundations of Education. She was a member of Phi Beta Kappa at the University of Kentucky, and is currently a member of various psychological associations. She was licensed as a psychologist in the Commonwealth of Kentucky in 1975. She has had extensive work experience in Kentucky, Georgia, and Florida since receiving her doctorate degree, primarily in the field of educational psychology, psychological assessment and diagnostic services, organization development consultation services, and individual and group educational/developmental services. Her application reflects that she was certified as an educational psychologist, Rank A-1, by the State of Florida in 1974. (Testimony of Petitioner, Petitioner's Exhibits 1-2, Respondent's Exhibit 1) By letter dated October 28, 1982, Respondent advised Dr. O'Roark that her application was denied for the reason that her doctoral transcript did not reflect coursework in biological bases of behavior, as required by Respondent's Rule 21U-11.05(2), Florida Administrative Code. The letter further provided Petitioner an opportunity to submit additional information concerning her doctoral program, and also advised her of her rights to an administrative hearing. Following the submission of further information by Petitioner, Respondent advised her, by letter dated October 28, 1982, that her application file, including the additional information submitted, had been reviewed, but the board reaffirmed its previous decision to deny the application. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 2) Rule 21U-11.05, F.A.C., provides that in order to be certified by the board as eligible for issuance of a psychology license by exception, an applicant must have received a doctoral degree from an accredited educational institution in a program that is "primarily psychological in nature." Such a program is defined in paragraph (2) of the rule as one that requires the successful completion of one course in each of six specified areas. One of these areas is "biological bases of behavior" and the rule provides examples of courses that qualify in such category as being "physiological psychology, comparative psychology, neuropsychology, and psychopharmacology." At the hearing, Petitioner submitted materials concerning certain courses she had taken in her doctoral program which purportedly contained from one-fifth to one-third of the subject matter in the area of biological bases of behavior. However, none of the courses deals substantially or exclusively with the area of biological bases of behavior. Most of the courses fall within other categories specified in Rule 21U-11.05(2), F.A.C. As a matter of policy, the Board in the past has not permitted an applicant to use portions of several courses to qualify as the one course required in each of the various subject matter areas. The reason for this policy is to insure that one obtains an appreciable knowledge in each of the six specified areas. (Testimony of Petitioner, Perry, Petitioner's Composite Exhibit 2) Petitioner's work as a consultant at the Albany Mental Health and Retardation Center and for the Florida Department of Transportation was characterized by officials of those organizations as very professional and successful. (Testimony of Hertwig and Kietzer)
Recommendation That Petitioner's application be denied. DONE and ENTERED this 2nd day of March, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: Ann M. O'Roark, Ph.D. 2904 NW 40th Place Gainesville, Florida 32605 John E. Griffin, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Jane Raker, Director Board of Psychological Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner made application to Respondent to obtain a license as a psychologist by exception pursuant to the provisions of Section 1 of Chapter 81- 235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. It was stipulated by and between the Petitioner and the Respondent that Petitioner's doctoral degree did not meet the specific course requirements of Rule 21U-11.05, Florida Administrative Code. Petitioner received his B.A. degree from Rutger's University, a master's degree in counselor education from Florida State University, and a Ph.D. in marriage and family counseling from Florida State University. Petitioner's doctoral dissertation concerned itself with one of the key aspects of Adlerian psychology called "social interest." This dissertation was of such professional significance as to result in an appearance of Petitioner for the purpose of presenting the paper to the American Society of Adlerian Psychologists. Petitioner's course of study for his doctoral degree focused primarily on Adlerian psychology. The total course work completed by the Petitioner exceeded the minimum requirements for his Ph.D. In addition to his educational training, the Petitioner has done individual counseling and psychotherapy for approximately eleven years. Within the general field of psychology there are a host of different subdivisions. One of these subdivisions is counseling psychology. Within counseling psychology there are different theories or methods relative to dealing with individuals, and one of these methods is the Adlerian method. It was this method which was the focus of the Petitioner's dissertation for his doctoral degree. Petitioner sought his licensure by exception by contending that he obtained a doctoral degree from an approved university in a program that is primarily psychological in nature. The Petitioner's application for licensure was denied on the basis that his course of study was not primarily psychological in nature because the program did not include at least one course in biological bases of behavior or cognitive-affective bases of behavior as required by subparagraphs (a) and (b) of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. Three other individuals, Dr. Kerr, Dr. Simpson, and Dr. Shreenan, applied for and were granted licensure as psychologists during the same period of time in which Petitioner applied and was denied licensure. Petitioner's educational qualifications were equal to or exceeded those of Drs. Kerr, Simpson, and Shreenan. Dr. Kerr, Dr. Simpson, and Dr. Shreenan were certified by the Florida Association of Practicing Psychologists and gained licensure as psychologists pursuant to Chapter 81-235 as amended by Section 37 of Chapter 82- 179, Laws of Florida, which mandated licensure of persons so certified. Petitioner did not apply for certification by the Florida Association of Practicing Psychologists. The evidence did not establish that Petitioner's failure to apply for such certification was in any part due to actions or inactions on the part of the Respondent. The specific course requirements of Rule 21U-11.05, Florida Administrative Code, were not applicable to those individuals gaining licensure through certification by the Florida Association of Practicing Psychologists. Rule 21U-11.05 was promulgated by the Board of Psychological Examiners in order to establish an objective method for evaluating the educational programs of those applying for licensure. The rule establishes the minimum qualifications for a program of study to be considered primarily psychological in nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for licensure as a psychologist be DENIED. DONE AND ENTERED this 29th day of September, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983. COPIES FURNISHED: Mallory E. Horne, Esquire Randall A. Holland, Esquire BORNE, RHODES, JAFFRY & Assistant Attorney General HORNE Administrative Law Suite 800, Barnett Bank Bldg. 1601-The Capitol Tallahassee, Florida 32301 Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Psychology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner's application for licensure as a psychologist should be approved, pursuant to Chapter 490, Florida Statutes. This proceeding arose as a result of Respondent's provisional denial of Petitioner's application for licensure by endorsement as a psychologist under Chapter 490, Florida Statutes, and Chapter 21U-11, Florida Administrative Code, based upon Respondent's determination that Petitioner did not hold a license in another state which was obtained by requirements substantially equivalent or more stringent to requirements for licensure as a psychologist in the State of Florida. At the commencement of the hearing, Petitioner was advised of his rights in administrative proceedings. He indicated his understanding of such rights and elected to represent himself at the hearing. Petitioner testified in his own behalf and submitted 4 exhibits in evidence. Respondent presented the testimony of Dr. Frank Biasco, a member of the Board of Psychological Examiners. Joint Exhibit 1 representing the application file of Petitioner was also received in evidence.
Findings Of Fact Petitioner Henry S. Tugender, Morganville, New Jersey, filed an application for licensure by endorsement as a psychologist with Respondent Board of Psychological Examiners on February 22, 1982. By letter of November 4, 1982, the Board's executive director informed Petitioner that his application had been denied by the Board pursuant to Rule 21U-11.04, Florida Administrative Code, because he did not hold a license in another state obtained by requirements substantially equivalent or more stringent to requirements for licensure as a psychologist in the State of Florida. Petitioner thereafter requested an administrative hearing. (Testimony of Tugender, Joint Exhibit 1) Petitioner received a master's degree in clinical psychology from Long Island University in 1959. He pursued doctoral studies in the clinical psychology program of Arizona State University from 1962 to 1964. In 1970, he obtained a Doctor of Philosophy degree from East Coast University, Dade City Florida, with a major in psychology. He was in an "external" degree program that involved a minimum residency during two summers and and submission of a dissertation. The university was not accredited by the American Psychology Association (APA) and is no longer in existence. (Testimony of Tugender, Joint Exhibit 1, Petitioner's Exhibit 1) Petitioner is licensed to practice psychology in three states and the District of Columbia. He was licensed in New Jersey in 1968, Illinois in 1971, Pennsylvania in 1975, and the District of Columbia in 1973. At the time of licensure, none of the three states or the District of Columbia required a doctoral degree to obtain a license. He qualified in each instance by having a master's degree, plus a varying number of years of experience. (Testimony of Petitioner, Joint Exhibit 1) At the time Petitioner was licensed in New Jersey, Pennsylvania, Illinois and the District of Columbia, the licensure requirements of those states were not substantially equivalent to or more stringent than those now contained in Chapter 490, Florida Statutes, in that they did not require a doctoral degree with a major in psychology from a school with an APA approved program, or from a school maintaining a standard of training comparable to those universities having programs approved by the APA or the doctoral psychology programs of the state universities. Rifle 21U-11.04(2)(a), Florida Administrative Code, sets forth criteria that must be met in all respects in order to demonstrate that the doctoral program meets the comparability requirements established by the rule. Petitioner presented no evidence concerning the content of his doctoral program at East Coast University, but conceded at the hearing that the program did not meet a number of the requirements specified in the rule. (Testimony of Petitioner, Biasco) Petitioner seeks to relocate to Florida for professional and health reasons. He currently is in private practice in New Jersey. He specializes in hypnosis and has been active in that field over many years. At the time of hearing, he held a valid Florida Department of Education teacher's certificate in psychology. He is also a certified school psychologist in the states of Pennsylvania and New Jersey. He is affiliated with a number of professional organizations and is listed in the National Register of Health Service Providers in Psychology. In 1974-75, he served as a consultant to the Florida Parole and Probation Commission, and in the Department of Corrections. (Testimony of Petitioner, Joint Exhibit 1, Petitioner's Exhibits 1-4)
Recommendation That Petitioner's application for licensure as a psychologist by endorsement be DENIED. DONE and ENTERED this 14th day of July, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983. COPIES FURNISHED: Jane Raker, Executive Director Board of Psychological Examiners 130 North Monroe Street Tallahassee, Florida 32301 Randy Holland, Esquire Department of Legal Affairs The Capitol - 1601 Tallahassee, Florida 32301 Henry S. Tugender 35 Wickatunk Village Morganville, N.J. 07751
The Issue Whether Respondent’s employment as a school psychologist should be terminated on the grounds set forth in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Respondent was a school psychologist employed by Petitioner pursuant to a continuing contract. Respondent was first employed by Petitioner in 1968 as a guidance counselor. In 1974 she began her employment as a school psychologist. At all times relevant to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) and subject to the provisions of the collective bargaining agreement between Petitioner and UTD. At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 1001.32, Florida Statutes (2005).2 For administrative purposes, Petitioner’s school district is divided into regions. R3 is the region to which Respondent has been assigned at the times relevant to this proceeding. In R3, each school, whether an elementary, middle, or high school, has a CST. Each such team includes an administrator, a school counselor, one or more special education teachers, a school psychologist, and other specialists as appropriate. Typically, a child is referred to the CST because he or she is experiencing difficulties, such as academic or behavioral problems. The child’s case is discussed at a CST meeting and the CST decides whether to refer the child to a school psychologist for a psychoeducational evaluation. If that decision is in the affirmative, certain background information is put together and that information is sent to the R3 office to be opened as a case file. The assigned school psychologist receives the case file, performs a psychological evaluation on the child, writes a report detailing his or her findings, and returns the case file to a staffing specialist. The staffing specialist schedules another CST meeting to determine the next appropriate step in the process, which may result in the preparation of an Individualized Education Plan (IEP) for the student. Petitioner has adopted a manual titled “Psychological Services Procedures Manual” (the Manual) that defines the psychological services provided by Petitioner and delineates the procedures school psychologists are to follow in testing, evaluating, referring and placing students who qualify for the ESE program. The Manual also provides an evaluation report format that school psychologists are to follow. School psychologists are required to keep certain records and file certain monthly reports. They are required to report the number of evaluations and other services performed during the month on a form titled “Psychological Services Monthly Report.” They are also required to keep a case log by school for each student with an open case file at that school. The case log contains the names of children whose cases are opened at each school and the status of the case. The case log is updated monthly to reflect the status of each case. A school psychologist is an essential member of the CST and is a critical player in the development of IEPs for students who qualify for ESE. Time constraints are placed on the CST and on each school psychologist. Petitioner’s policy is that the period from the initial referral of a child to a CST to the development of the child’s IEP (for those children who qualify for ESE services) should not exceed 90 days. Since September 2004, Florida Administrative Code Rule 6A-6.0331 has required that students who are suspected of having a disability must be evaluated within a period of time, not to exceed 60 school days in which the student is in attendance. School psychologists are instructed to make every effort to complete the psychological evaluation report and to submit the report for typing within five days after the evaluation is completed. Typically, each school psychologist in R3 is responsible for two or three assigned schools. In an average week, school psychologists spend most of their time at their assigned schools, where they are required to keep the same work hours as the instructional personnel assigned to that school. At the school, the school psychologist meets with other school personnel (whether informally or as part of a CST) and evaluates students. Each school psychologist has at least one day a week at the R3 office, where he or she writes reports and consults with other R3 personnel as needed. During the R3 office day, new cases are assigned and special assignments are made. EVALUATIONS THROUGH SCHOOL YEAR 2001-02 From the school year 1990-91 through the school year 2000-01, Martha Boden was Respondent’s supervisor. For each of those school years, Ms. Boden evaluated Respondent’s performance. During those years, Ms. Boden received a myriad of complaints about Respondent’s job performance. Several school principals testified that they would not want Respondent to serve as their school psychologist based on unfavorable experiences with Respondent during the school years Ms. Boden served as her supervisor. Despite the complaints she received about Respondent, Ms. Boden evaluated Respondent’s performance as being acceptable for each year Ms. Boden supervised Respondent. Each annual evaluation of Respondent by Ms. Boden was a summative evaluation in the sense that Ms. Boden considered all information, both good and bad, that she had about Respondent’s job performance. Ms. Boden’s conclusion that Respondent was an acceptable employee for each of the years that she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the school years 1990-91 through 2000-01 does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance was problematic and provides a context for subsequent evaluations. Ms. Boden exerted considerable effort in attempts to help Respondent improve her job performance. Respondent did not take advantage of the help Ms. Boden offered. Respondent knew from Ms. Boden that she was required to produce timely, accurate psychological evaluations and monthly reports. Myra Silverstein supervised and evaluated Respondent for the 2001-02 school year. That evaluation was also a summative evaluation and also concluded that Respondent was an acceptable employee. Ms. Silverstein’s conclusion that Respondent was an acceptable employee for the year she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the 2001-02 school year does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance continued to be problematic and provides additional context for subsequent evaluations. DELAYED EVALUATIONS AND REPORTS During the school years subsequent to the 2001-02 school year Respondent failed, on multiple occasions, to timely evaluate and complete reports for children who were being evaluated for ESE services. At Olinda Elementary School, a student was tested by Respondent on February 23, 2004 and Respondent did not close the case until January 12, 2005. Partly because of that delay, the principal of Olinda Elementary School requested that a school psychologist other than Respondent be assigned to her school. During the 2004-05 school year, Respondent was assigned to evaluate two students at Miami Springs Elementary School. More than a year passed between the time Respondent received her assignment and the time she did the testing. During the 2003-04 school year, Respondent was assigned a case in January 2004. Respondent did not do the testing on this student until July 2004 and she did not complete her report until January 2005. At Orchard Villa Elementary, Respondent was assigned a case during the summer of 2004. As of June 2005, the case had not been closed. There was no justification for the lapses in time between the dates of assignment and the dates of completion of Respondent’s reports.3 The CSTs could not determine appropriate strategies for the students Respondent was assigned to evaluate without a psychological report. Respondent’s lapses between her assignments and the completion of her reports delayed the staffing of those students and delayed the development of and the provision of appropriate services for those students. Mary Paz, the Instructional Supervisor at the R3 office became Respondent’s supervisor in March 2004. After she assumed that responsibility, Ms. Paz received multiple complaints from principals and parents as to Respondent’s repeated failures to timely complete evaluations and/or reports. In May 2004, Ms. Paz received a memorandum from an assistant principal at Banyan Elementary School regarding an incomplete evaluation report done by Respondent. Material in the case file established that the Bender Gestalt evaluation was administered, but the Respondent’s report made no mention of that diagnostic tool. Another school psychologist was called in to complete Respondent’s report. Pamela Sanders-White was the principal of Orchard Villa Elementary School during the 2004-05 school year. Respondent was the school psychologist for that school during that school year. Ms. Sanders-White received complaints from teachers, parents, and students pertaining to Respondent’s failure to timely complete her work. Ms. Sanders-White requested that a school psychologist other than Respondent be assigned to her school for the school year 2005-06. CONFRONTATIONS AT IEP MEETINGS Petitioner presented evidence that Respondent argued with other professionals during several CST meetings and that she walked out of one such meeting. Petitioner also presented evidence that a few of Respondent's professional opinions were rejected by other professionals. That evidence, while accepted as credible, did not prove or tend to prove that Respondent was incompetent or that she was insubordinate, which are the charges alleged in the Notice of Specific Charges. Consequently, the proposed findings in paragraphs 22, 23, 25, and 26 of Petitioner's Proposed Recommended Order have not been considered by the undersigned in reaching the ultimate findings of this Recommended Order. INACCURATE REPORTS Gail Pacheco has been the Chairperson for Psychological Services in R3 since the 1989-90 school year. She is not a supervisor of the R3 school psychologists, but she works with their supervisors as the supervisor’s designee in resolving problems. At Joseph Jackson’s request after he became Respondent’s supervisor in 2003, Ms. Pacheco reviewed 30 reports prepared by Respondent and monitored all 28 school psychologists in R3 for compliance with time frames for testing, preparation of psychological reports, and case closure. Each of the 30 reports prepared by Respondent and reviewed by Ms. Pacheco had at least one error.4 On May 28, 2003, Mr. Jackson requested all school psychologists, including Respondent, to select a sample evaluation report for review by the respective region chairperson. Respondent did not timely comply with Mr. Jackson’s request. When she did comply, the evaluation report she submitted contained numerous errors, including Respondent’s erroneous conclusion as to the student’s qualification for services.5 In December 2003 Dr. Sue Lee Buslinger-Clifford became the Instructional Supervisor of Psychological Services at the District office. Her job duties included the supervision of all school psychologists, which included the authority to give directives to all school psychologists, including Respondent. Dr. Buslinger-Clifford’s testimony, considered with the other evidence presented by the parties, established that Respondent failed to follow District procedures in the use of two personality or emotional assessments instruments in evaluating students. Respondent’s reports were not individualized for each student, with most of her reports using similar, standardized language. In the academic assessment of students, the reports should identify the needs of the child, the skill level of the child, and specific recommendations. Respondent’s reports often contained the same recommendations written in general, non- specific language that did not recommend the implementation of specific services for the student. Some reports were missing information and others contained limited information that was not helpful for the teacher and the members of CSTs. In addition to typographical and grammatical errors, Respondent’s reports contained test use and procedural errors. On one evaluation report Respondent misinterpreted evaluation data, which caused her to reach an erroneous conclusion as to a student’s eligibility for services.6 On some occasions, Respondent’s narrative report was inconsistent with the report of the evaluation data. Respondent had difficulty managing her time. Her student evaluations generally took longer than they should have. Dr. Buslinger-Clifford reviewed certain reports submitted by Respondent and advised Respondent as to corrections that needed to be made. Respondent did not comply with that advice. Mr. Jackson, as Respondent’s supervisor, reviewed her monthly reports for August through October, 2003, and determined that Respondent’s productivity was greatly below that of the average school psychologist, despite having a similar caseload. Mr. Jackson further determined that Respondent had a backlog that was growing each month; that some of the reports were incomplete; and that some of the reports were inconsistent or misleading. On October 31, 2003, Mr. Jackson notified Respondent in a memorandum of serious concerns that he had related to her poor job performance, and he directed Respondent to provide him with answers to certain questions pertaining to her performance7 no later than November 10, 2003, at 9:00 a.m. Mr. Jackson requested information as to six specific issues. First, he wanted a written response as to an alleged incident at Westview Middle School during which Respondent got into an argument with a staffing specialist in front of a student’s parents during a CST meeting. Second, he wanted to know why three identified cases had not been completed in a timely manner and ordered her to attach the psychological reports for those students with her response. Third, he wanted her to explain her lack of productivity and provide Medicaid forms for nine students who she had evaluated. Fourth, he wanted Respondent to provide Ms. Pacheco with a copy of a recent psychological report so Ms. Pacheco could review it. Fifth, he wanted an explanation as to why she had not provided a psychological report for review when such a report had been requested of her on three occasions. Sixth, he wanted Respondent to explain why she continued to use an instrument (WIAT) that she allegedly could not score. On November 7, 2003, Respondent responded to Mr. Jackson’s memorandum and requested a 60-day extension of the deadline for her response to his questions. Respondent’s response included the following: You have demanded a written response in five (5) days to a long list of you [sic] allegations, to which you offered not [sic] proof, only conjecture, opinions, and a partially extracted table; that was delivered by registered mail on Saturday afternoon at my residence. I feel sure that this memorandum was written and typed on the MDCPS [Miami-Dade County Public School] time clock. No consideration was given for my time clock, or the release of my daily time schedule to complete such a task. The sixty-day extension period is therefore needed to consult my archives in order to give you a detailed and accurate response. I need ample time to secure financial expense; legal advisement and representation; and a typist (all of which I will be seeking reimbursement), before undertaking such a task. Mr. Jackson gave Respondent until November 14, 2003, to respond to his memorandum. That was a reasonable deadline. Respondent did not meet the deadline established by Mr. Jackson. On December 17, 2003, Respondent responded in writing to the questions Mr. Jackson had asked in his memorandum.8 Mr. Jackson was not satisfied with Respondent’s response and continued to have concerns about her job performance. Mr. Jackson’s dissatisfaction with Respondent’s response was reasonable. His continued concerns about her job performance were also reasonable. JANUARY 2004 CONFERENCE FOR THE RECORD On January 15, 2004, Mr. Jackson had a Conference for the Record (CFR) with Respondent. A CFR is a meeting of record, held by a supervisor with an employee who is or may be under investigation for possible disciplinary action, to apprise the employee of the review of the record and the possible disciplinary action, and to give the employee an opportunity to respond or append the record. At the CFR conducted January 15, 2004, Mr. Jackson discussed his continued concerns with Respondent and considered her responses (both written and verbal). Mr. Jackson prepared a memorandum dated January 22, 2004, which summarized the events that transpired at the CFR held January 15, 2004. In the memorandum, Mr. Jackson gave Respondent the following directives: Your are to be professional and courteous to all staff at all times. You are also to represent the school system in a positive light at all times. This directive begins immediately and continues indefinitely. You are to complete evaluations of each child within a week of the beginning of testing, unless approved by the Executive Director or the Instructional Supervisor of the Division of Psychological Services or the ACCESS Center 3 Chairperson. Additional testing must be approved by the Chairperson which may be suggested by you and/or the Chairperson. The additional testing is to be completed within one week of notification of the determination for more testing. A completed report of each evaluation must be submitted for typing to the ACCESS Center within two weeks after the evaluation is completed. (Day that the last assessment instrument has been administered.) All evaluations are to be correctly reflected on your monthly report (log). This directive is ongoing and will be reviewed by the 10th of each month, for the next three months. Your monthly reports/logs are to reflect increased productivity beginning with the February report, averaging a minimum of 10 psychoeducational evaluations per month, unless approved by the Executive Director. Your productivity will be reviewed monthly. If you do not have the assigned cases, you are to request cases from your ACCESS Center chairperson. You are to complete a minimum of 10 psychological evaluations during the next four weeks. The Psychological Services Monthly Report, with a copy of the completed typed report for each of the 10 evaluations attached, is to be submitted to the office of the Executive Director of the Division of Psychological Services on February 27, 2004. All psychological evaluation reports are to be completed and delivered to Ms. Gail Pacheco for review within two weeks after the day the last assessment instrument has been administered. All corrections are to be completed within two school days after they have been received from Ms. Pacheco. No case should be given to the staffing specialist for staffing until the case has been approved by Ms. Pacheco. This directive is to be implemented immediately and will be reviewed randomly by the Executive Director of the Division of Psychological Services during the next six weeks. Reviewing of all reports by the ACCESS Center Chairperson and timelines for completion will be adjusted as needed. You were referred to the Employee Assistance Program through a Supervisory Referral for performance of professional duties related to assignment failures. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to your professional status with Miami-Dade Public Schools. In the memorandum dated January 22, 2004, Mr. Jackson advised Respondent that he would review the information in the CFR with appropriate school officials and that he would take the following additional action: All directives will be monitored as stated in the conference and in this memorandum. If you successfully complete the directives, the requirements of the directives will be adjusted to reflect the requirements of all ACCESS Center based school psychologists. If you do not successfully complete the directives, additional directives will be added to assist you in becoming the desired professional you are capable of being. MARCH 2004 CFR Mr. Jackson conducted a second CFR with Respondent on March 19, 2004. Petitioner established that there continued to be concerns with all six of the directives given to Respondent following the January 2004 CFR. As to directive 1, Mr. Jackson continued to receive complaints as to Respondent’s interaction with school-based staff. Petitioner established that Respondent failed to comply with directives 2, 3, 4, and 5. Respondent did not timely complete the evaluation of each child to whom she was assigned nor did she seek or obtain approval from the R3 chairperson for additional testing. Respondent did not submit completed psychological evaluation reports to the R3 office within two weeks of completing all of the evaluations. Respondent’s case log report reflects that 10 cases were completed but only eight evaluation reports were submitted. None of the evaluation reports on Respondent’s monthly case log report were submitted for review as required. Psychoeducational evaluation reports were not timely submitted to Ms. Pacheco for review. Numerous errors were reflected on the psychoeducational evaluation reports that were submitted. Ms. Pacheco returned the reports to Respondent with instructions to correct the reports. Respondent did not return corrected reports to Ms. Pacheco. Respondent declined to participate in the Employee Assistance Program, which was offered in Directive 6.9 In addition to re-issuing the directives that had been given at the January CFR, Mr. Jackson issued directives requiring Respondent to report to work on time, to report her presence at the school site to a designated contact person, and to complete a Professional Improvement Plan (PIP) that was based on specified indicators pursuant to Petitioner’s Professional Assessment and Comprehensive Evaluation System (PACES).1 In addition, Mr. Jackson changed Respondent’s schedule to reduce the number of schools she would have to travel to in order to conduct the number of evaluations Mr. Jackson had directed her to evaluate each month. This change was made in an effort to assist Respondent meet her productivity directives. MAY 2004 CFR Mr. Jackson conducted a CFR with Respondent on May 7, 2004. Petitioner established that Respondent continued to fail to meet the directives that Mr. Jackson had imposed as to productivity. Respondent’s evaluation reports and monthly case reports continued to contain procedural and substantive errors. Respondent failed to submit copies of her evaluation reports to Mr. Jackson’s office as directed. Mr. Jackson issued revised directives to Respondent. Those revised directives, which were similar to the previously issued directives, are set forth in Petitioner’s Exhibit 143 and are incorporated herein by reference. Again, Respondent was directed to complete a PIP on specified indicators on the PACES evaluation system. The PIP Respondent was required to complete was admitted into evidence as Petitioner’s Exhibit 144. ANNUAL EVALUATION FOR 2003-04 SCHOOL YEAR On May 7, 2004, Mr. Jackson completed his annual evaluation of Respondent’s job performance for the 2003-04 school year.11 Part A of the evaluation form contains six domains. Mr. Jackson rated Respondent as meeting standards for each of the six domains in Part A. Those domains are “Preparation and Planning”, “Management”, “Human Relationship”, “Professional Practice”, and “Contribution to School Improvement”. Part B contains the seventh domain of “Professional Responsibilities”. For that seventh domain, Mr. Jackson rated Respondent as not meeting standards. Mr. Jackson’s overall rating of Respondent was that she did not meet standards. On the PACES evaluation form, the evaluator can make one of the following three recommendations: “Recommended for Employment”, “Not Recommended for Employment”, or “Performance Probation Carry-over.” Mr. Jackson recommended the third option, which meant that Respondent’s performance probation was to be carried over to the next school year. Respondent’s May, June, July, and August, 2004, case reports established that she continued to fail to meet productivity directives. She typically did not timely submit reports for typing and she did not complete the assigned number of evaluations. She developed a backlog for her assigned cases. SEPTEMBER 2004 CFR On September 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. Dr. Buslinger-Clifford attended that meeting. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 165 and are incorporated by reference. Included in the directives was another PIP (Petitioner’s Exhibit 167). Mr. Jackson ordered Respondent to return 17 cases that had been assigned to her to Dr. Buslinger-Clifford for reassignment. On September 24, 2004, Respondent complied with that order and those cases were reassigned. Also as directed, Respondent reviewed with Dr. Buslinger-Clifford Respondent’s backlog of 26 other cases. Dr. Buslinger-Clifford observed that Respondent’s case files were disorganized, some contained mold, and some contained pieces of dead roaches. Respondent submitted 26 reports for typing in mid October 2004. Her October 2004 case report fails to reflect that those cases were submitted for typing. NOVEMBER 2004 CFR On November 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. She had not completed her PIP; the psychological evaluation reports she submitted contained typographical, grammatical, and procedural errors; and she did not submit contact information she had been instructed to submit. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 188 and are incorporated by reference. On November 16, 2004, Mr. Jackson reprimanded Respondent in writing. That reprimand is set forth in Petitioner’s Exhibit 189, which is incorporated herein by reference. On November 17, 2004, Respondent provided Mr. Jackson with a report listing the cases that had been assigned to her. That list was not accurate because Respondent failed to list five cases that had been assigned to her. Respondent continued to fail to evaluate cases that had been assigned to her on a timely basis. Respondent’s case status reports for January and February 2005, did not follow district polices. From those reports, Mr. Jackson could not determine the status of cases that had been assigned to Respondent. FEBRUARY 2005 CFR For the school year 2004-05, Robert Kalinsky was the personnel director for R3 and DanySu Pritchett was the Administrative Director of Petitioner’s Office of Professional Standards (OPS). On February 15, 2005, Ms. Pritchett conducted a CFR with Respondent at the OPS offices. Respondent, Mr. Kalinsky, Mr. Jackson, Dr. Bulsinger-Clifford, and two union representatives also attended the CFR. Petitioner’s Exhibit 206, a summary of that CFR, is hereby incorporated by reference. The summary of that CFR reflects the following statement by Ms. Pritchett: The record reflects that you have been repeatedly insubordinate and grossly insubordinate to directives issued to you by Mr. Jackson. Additionally, the record reflects your failure to complete and submit psychological evaluation reports [for] review by the required timelines and your failure to submit monthly reports/logs. . . . Mr. Kalinsy received numerous complaints from school- based personnel about Respondent’s performance. Mr. Kalinsky had difficulty locating Respondent on one occasion because Respondent was not at her scheduled location and had not informed her contact person at the school where she was going. He had difficulty locating her on another occasion because she did not timely report to work at the school site she was scheduled to serve. On March 2, 2005, Mr. Kalinsky wrote Respondent a memorandum advising her that she was in violation of directives that had been issued to her at prior CFRs. That memorandum, Petitioner’s Exhibit 214, is hereby incorporated by reference. On March 5, 2005, Mr. Kalinsky revised Respondent’s schedule so that Tuesdays, Wednesdays, and Thursdays of each week were reserved for completion of prior assignments. Mr. Kalinsky directed Respondent to submit five completed cases to R3 each Friday. Mr. Kalinsky had the authority to issue that directive to Respondent. The directive was reasonable. On Friday, March 18, 2005, Respondent failed to comply with that directive. Respondent also failed to comply with Mr. Kalinsky’s directive on Friday, March 25, 2005. Mr. Kalinsky issued another memorandum to Respondent on March 31, 2005, for failing to comply with his directive. That memorandum, Petitioner’s Exhibit 222, is incorporated by reference. On May 27, 2005, in the PACES annual evaluation for the School Year 2004-05, Mr. Kalinsky rated Respondent as not meeting standards. Respondent had consistently failed to follow directives that had been issued to her as to timelines and productivity, had failed to adhere to Petitioner’s policies and procedures, and had turned in reports that contained inaccuracies, errors, and misleading information. Mr. Kalinsky did not recommend Respondent for further employment because he reasonably concluded that Respondent had not been fulfilling her professional responsibilities. Respondent’s supervisors recommended the termination of her employment as a school psychologist. Petitioner followed all applicable procedures in processing that recommendation, which resulted in the School Board action at its regular meeting on May 18, 2005, that underpins this proceeding. Dating from Ms. Boden tenure as Respondent’s supervisor in the 1990s, Petitioner made reasonable efforts to try to help Respondent improve her performance. Respondent consistently rejected those efforts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order adopting the findings of fact and conclusions of law set forth herein. It is also RECOMMENDED that the Final Order terminate Respondent’s employment. DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2006.
Findings Of Fact Petitioner applied for licensure as a psychologist on or about June 26, 1984 and Petitioner's application was considered by the Board of Psychological Examiners (Board). Petitioner's application for licensure was denied by the Board on the basis that Petitioner's doctoral program was not comparable to an American Psychological Association (APA) approved program in that the biological bases of behavior was not a requirement of Petitioner's doctoral program as required by Rule 21U-11.06, Florida Administrative Code. The Board adopted Rule 21U-11.06, Florida Administrative Code and essentially codified the criteria for APA approved program for the first time in this rule. The rule took effect an April 5, 1984. The pertinent part of the rule is provided below. In order to be certified by the Board as eligible for examination pursuant to Section 40.005(1), Florida Statutes, an applicant must: Complete the application form and remit the examination fee set by rule of the Board. 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: 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. The doctoral program must be publicly identified as a psychology program, and must specify in pertinent institutional catalogs and brochures its intent to educate and train psychologists. The psychology program must stand as a recognizable, coherent organizational entity within the institution. There must be a clear authority and pri mary responsibility for the academic core and speciality preparation, whether or not the program involves multiple administrative lines. The doctoral program must be an organized integrated sequence of study designed by the psychology faculty responsible for the program. There must be an identifiable psychology faculty. The program director must be a psy chologist. The program must have an identifiable body of students who are matriculated in that pro gram for a doctoral degree. The doctoral program must include super vised practicum and/or laboratory experiences appropriate to practice, teaching or research in psychology. The doctoral program shall require a minimum of: The equivalent of three full-time academic years of graduate study; Two academic years of the three shall be in full-time residence at the institution from which the doctoral degree is granted. The doctoral program shall require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. Further, the program shall require each student to demonstrate knowledge in the following subs tantive areas of psychology: Biological bases of behavior (e.g., physiological, psychology, comparative psychology, neuropsychology, psychopharmacology) Cognitive-affective bases of behavior (e.g., learning, memory, perception, cognition, thinking, motivation, emotion), Social bases of behavior (e.g., social psychology, cultural-ethnic and group pro cesses, sex roles, organization and systems theory), and Individual behavior (e.g., personality theory, human development, individual differ ences, abnormal psychology, psychology of women, psychology of the handicapped). (Emphasis supplied.) Rule 21U-11.06, Florida Administrative Code was adopted to implement Section 490.005, Florida Statutes (1983). 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 are listed below. 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 program, wherever it may be administratively housed, must be clearly and publicly identified and labeled as a professional psychology program. A recognizable, coherent organizational entity must be responsible for the program. 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. The program must include supervised practicum, internship, field, or laboratory training appropriate to the practice of psychology. There must be an identifiable psychology faculty and a psychologist responsible for the program. The program must have an identifiable body of students who are matriculated in that pro gram for a degree. The institution must demonstrate its commitment to the program by appropriate financial support. APA recognizes that certain principles are basic to sound training in professional psychology and requires that these principles be adhered to in an APA approved doctoral program. These principles are found in the Handbook under Training Models and Curricula, and in pertinent part are provided below. It is the responsibility of the faculty to integrate practice with theory and research early in the program. Students should form an early identification with their profession. Faculty should be available to demonstrate and model the behaviors that students are expected to learn. A close working relationship between faculty and student is essential. 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. The program shall, further, require each student to demonstrate competence in each of the following substantive content areas: biological bases of behavior (e.g., physiological psychology, comparative psychology, neuropsychology, sensation, psychopharmacology. cognitive-affective bases of behavior (e.g., learning, memory, perception, cognition, thinking, motivation, emotion), social bases of behavior (e.g., social psychology; cultural, ethnic, and group processes; sex roles; organizational and systems theory), and individual behavior (e.g., personality theory, human development, individual differences, abnormal psychology). (Emphasis supplied). The uncontroverted testimony of Dr. Perry was that competency in the area of biological bases of behavior is a fundamental requirement which a doctoral psychology program must require to properly train psychologists and the policy of the Board has been since its inception in 1981 that applicants for examination must have graduated from a program which required demonstration of competence in the foundation area of biological bases of behavior. There has been no standard criteria established for all the doctoral psychology programs of the state universities in the United States. There has been no standard criteria established for all the doctoral psychology programs of the state universities in Florida. Dr. Perry testified that he had not reviewed all the doctoral psychology programs of the state universities in Florida but that it was his belief that those programs were comparable to APA approved doctoral psychology programs. Based on Dr. Perry's service with the Board, he testified that the Board is not concerned with whether the doctoral psychology programs of the state universities of Florida are comparable with APA approved doctoral psychology programs when the applicant has graduated from one of the state universities of Florida.
The Issue The first issue to be determined is whether Petitioner, Rebecca Coleman Curtis (“Petitioner” or “Dr. Curtis”), is entitled to licensure as a psychologist in the State of Florida by virtue of the “deemer” provision in section 120.60(1). The second issue to be determined is whether the Florida Board of Psychology (the “Board”) used an unadopted rule in violation of section 120.54(1)(a), with respect to its decision to deny Dr. Curtis’s application for a license.
Findings Of Fact Section 490.006(1), Florida Statutes, presents three avenues for a psychologist to obtain licensure by endorsement. Petitioner applied to the Board of Psychology for licensure as a psychologist on September 30, 2014. She applied under the category of licensure authorized by section 490.006(1)(c), which allows for licensure to persons who possess a doctoral degree in psychology as described in section 490.003 and have at least 20 years of experience as a licensed psychologist in any jurisdiction or territory of the United States within 25 years preceding the date of the application. Petitioner’s application was deemed complete by the Board office on October 17, 2014. Ninety days from Petitioner’s completed application was January 15, 2015. The Department of Health sent Petitioner a letter regarding her application dated October 17, 2014, which states in pertinent part: Dear Dr. Curtis: Psychology board staff has reviewed your application. You have been authorized for the Florida laws and rules exam. You have been approved for licensure upon passage of your exam. Please note that that you have 24 months, from the date of this letter, to verify completion of these requirements or your application will be administratively closed as required in Section 490.005(3)(a), Florida Statutes. (emphasis added). Petitioner was included in a list of applicants (the APA List) to be ratified by Respondent at a telephone conference call on November 21, 2014. The Board approved all of the candidates on the list. Both the letter authorizing Petitioner to take the laws and rules examination and the Board’s action ratifying approval of Petitioner’s application for licensure occurred within 90 days of her completed application. The top of the first page of the APA List contains a statement which reads: “regardless of the application method, if board staff becomes aware of any issues of concern, approved applicants will be brought back before the Board for reconsideration prior to issuance of a license.” Respondent has not cited any authority for this statement. This statement was applicable to all candidates on the APA List, including Petitioner, and was applicable to similar candidates on previous lists on which the Board has acted. Applicants for licensure are not made aware that the Board will reconsider an application previously approved by the Board. Petitioner took and passed the required laws and rules examination in August 2016, and her score was reported to the Board office. Respondent sent Petitioner a letter dated August 9, 2016, which stated that her application would be considered by the Board of Psychology’s Credentials Committee at its meeting September 9, 2016, despite that she was advised previously that she was approved for licensure. That same day, Michelle Branch from the Board office sent Dr. Curtis an email which stated, in part: We have received your Laws and Rules exam score and it appeared you were ready for licensure, however, after further review of your file, there is a question on whether you received your doctorate degree from a program that was accredited by the American Psychological Association. To obtain a psychology license under the Endorsement of 20 Years of Licensed Psychology Experience method, you must have received your doctorate degree from an APA accredited program. I have provided Section 490.005, F.S., for your reference: . . . . Your transcripts indicated that you received your PhD from the Social Psychology program at the Teachers College, Columbia University, New York City, which is not listed as an accredited program on APA’s website. I have contacted APA to verify and am waiting on a reply. Please request a letter from the university indicting [sic] your major. This letter can be emailed to me. Your application and transcripts will then go before the September 9, 2016 Credentials Committee for review. Please find the attached meeting notice. (emphasis added). Ms. Branch’s request for additional information was more than 30 days from the Board’s receipt of Petitioner’s application, and well after the application had been deemed complete, and well after the application was approved by the Board. On August 24, 2016, Petitioner submitted to Respondent’s agency clerk a Notice of Intent to Rely upon Default License Provision. A memo provided to the Board regarding Dr. Curtis’s application contained the following information for the Board’s consideration. Dr. Curtis applied for licensure under the Endorsement of 20 Years of Licensed Psychology Experience method, however, her doctoral psychology program completed at the Teachers College, Columbia University, New York City in 1973, did not hold programmatic accreditation by the American Psychological Association (APA). Although Dr. Curtis went on to complete studies in Clinical Psychology at the APA-accredited Adelphi University in 1988, the transcript indicates it was a non- degree program. In the initial review of Dr. Curtis’ application by former staff, these issues were not addressed and the staff erroneously approved Dr. Curtis to sit for the laws and rules examination. Upon the receipt of Dr. Curtis’ exam score, current staff performed a final review for license issuance and these issues were discovered. Dr. Curtis was subsequently notified that her application would require review by the Board’s Credentials Committee before further action could be taken. The author of this memo is not identified, and did not testify at hearing. While it is admissible for the purpose of demonstrating what the Board considered in its second review of Dr. Curtis’s application, it is hearsay. Dr. Curtis’s unrefuted testimony is that she holds two separate doctoral degrees in psychology, the first from Teachers College at Columbia University, and one from Adelphi University. Both schools are located in New York. According to Dr. Curtis, because New York would not issue a second doctoral degree in the same field, her degree from Adelphi is listed as non-degree seeking, despite her completing the requirements for a degree and being issued a diploma. Dr. Curtis has been licensed in the State of New York since 1983, and her application file does not include any indication that her license has ever been disciplined. The only evidence other than the memo cited above that would indicate that Dr. Curtis’s education did not qualify her for licensure in Florida are copies of emails, which appear to be the source of the Board staff’s information. Neither the person who received the email nor the person who sent them testified at hearing, and, although included in Petitioner’s licensure file, the contents of the emails are also hearsay. During the September 9, 2016, meeting, the Committee voted to deny Petitioner’s application for licensure. Petitioner received a Notice of Intent to Deny from Respondent on or about October 11, 2016, notwithstanding the Board’s prior approval of her application nearly two years before. The Board has not promulgated any rule that provides for “re-screening” or a “second review” or “final review” of an application that has been previously approved by the Board. Nor has the Board promulgated any rule that provides for “reconsideration” of an application that has been previously approved by the Board. The Board delegates to office staff the review of applications to see if applications meet the requirements specified in chapter 490 and the Board’s rules. Petitioner provided notice to the Board on September 12, 2016, pursuant to section 120.595(4)(b), regarding possible unadopted rules. The Board has not commenced any rulemaking proceedings regarding the subjects addressed in the September 12, 2016, notice to the Board of Psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Psychology enter a final order that: 1) acknowledges Petitioner’s application for licensure is approved, pursuant to the procedure in section 120.60(1); and 2) directs the issuance of Petitioner’s license as a psychologist. With respect to Petitioner’s claims pursuant to section 120.57(1)(e), it is further RECOMMENDED that: 1) the statements related to reconsideration or a second review of approved applications for licensure after the receipt of examination scores and before the issuance of the license meet the definition of a rule and constitute an unpromulgated rule; 2) the Board must immediately discontinue all reliance on these statements or any substantially similar statement as a basis for agency action; and 3) Petitioner is entitled to an award of reasonable attorney’s fees and costs, in an amount to be determined after the entry of the final order. DONE AND ENTERED this 13th day of March, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2017.
Findings Of Fact Immediately prior to the hearing the parties submitted a stipulation as to a portion of the facts as follows: The parties hereby agree that the follow- ing facts are true for the purposes of this proceeding: Petitioner is licensed to practice Psychology in the State of Illinois, holding License No. 72-604. The date of issuance of his license was 8 March 1965. Petitioner's application for licen- sure contained all information necessary for respondent to make a determination as to his entitlement for licensure. On 15 April 1978 respondent denied petitioner's application on the grounds that he did not have a doctoral degree in Psycho- logy and that the standards for licensure in the State of Illinois were not at least equal to the standards for licensure in the State of Florida. On 21 October 1978 respondent denied petitioner's application for licensure on the grounds that his degree was not from an Ameri- can Psychological Association approved program nor from a program that was equivalent thereto. On 15 April 1978 respondent approved an application for licensure under special con- ditions on behalf of Dr. Thomas A. Guest, based upon his licensure in the State of Illinois. On 18 October 1977 respondent approved an application for licensure under special con- ditions on behalf of Dr. Lois M. Mueller, based upon Dr. Mueller's licensure in the State of Illinois. Petitioner complies with the require- ment contained in s. 490.19(1)(a), Florida Statutes, for good moral character. Petitioner complies with the require- ment of s. 490.19(1)(b), Florida Statutes, in that he conforms to the ethical standards of the profession as adopted by the Board. Petitioner received his license in Illinois by virtue of a grandfather clause con- tained in that act. Petitioner has never taken the exami- nation referred to in respondent's rules as the PES exam. Petitioner does not meet the requir- ments of Rule 21U-2.05(1)(a)1, being a requirement for 90 hours of graduate study. Petitioner does not have a doctoral degree in Psychology from a program approved by the American Psychological Association. It was further stipulated that Petitioner's Exhibits 1 through 9, attached to the foregoing Stipulation as documentation, would not be objected to on grounds of authenticity, and that the depositions of Dr. Robert Zellar and Dr. Albert Ellis would be taken by deposition and the record closed only after receipt by the Hearing Officer of said depositions. Both depositions have been received by the Hearing Officer. Petitioner, a resident of Springfield, Illinois, and a licensed psychologist in Illinois since 1965, requested an administrative hearing after the second denial by the Respondent Board of his application for licensure as a psychologist in the State of Florida. Petitioner also requested a hearing on whether he would be eligible to take the Florida psychology examination. This issue has not been determined by the Respondent Board, but no objection was raised as to having said issue determined at this administrative hearing. After Respondent Board denied the application of Petitioner for licensure in April of 1978, Petitioner obtained an Ed.D. degree in human services and reapplied to Respondent for licensure in October, 1978. He was again denied licensure. The Respondent Board denied both applications for licensure by the Petitioner on the grounds that he failed to meet the educational requirements of Florida. The finding of the Respondent was based on: Petitioner's degree does not have a major in psychology from an accredited university. Petitioner's degree does not have a major in psychology from a university maintaining a standard of training comparable to an American Psychological Association accredited university due to the fact that: Petitioner received an Ed.D in Higher Education not a Ph.D in psychology. Petitioner has only two (2) semesters of full-time study, and those were predomi- nantly of a practical nature. A comparable program requires at least two (2) years (four [4]) semesters of full-time study or ninety (90) semester hours; sixty (60) of those should be designed as preparation for the professional practice of psychology, of which at least forty-two (42) shall be in any five basic areas as detailed in Chapter 21U-2.05(2)(a)(2), F.A.C. Respondent Board refused Petitioner a license only after an individual appraisal of the program cited by the Petitioner in his application. Petitioner Gullo holds a Masters degree in clinical psychology from Bradley University in Peoria, Illinois, awarded in 1964. Bradley University does not have an American Psychological Association approved program in psychology. The Petitioner was licensed to practice psychology in 1965, under Illinois Statute, Title 91 1/2 Section 411(a). His licensure was granted under the grandfather clause of that statute, which permitted licensure of those holding a Masters degree on the effective date of the statute. The statute increased the requirements to a doctorate degree thereafter. Petitioner has practiced as a psychologist or taught in Illinois at various institutions since shortly after his licensure, and has been employed in his own clinic since receiving his degree from the University of Sarasota in 1975. Petitioner was awarded an Ed.D. degree in 1975, from the University of Sarasota in Sarasota, Florida, with a major in human relations, while he was practicing psychology in Illinois. The University of Sarasota does not have an American Psychological Association approved program in psychology. One of the reasons the Petitioner chose to obtain a degree from the University of Sarasota was so that he could continue to work in Illinois while fulfilling the school's requirements. Most of the work for his degree was done off campus in a directed research and seminar type of study. Actual campus study consisted of a few weeks' instruction. The University of Sarasota is a "non-traditional" university. Such "non-traditional" universities are held to be not acceptable to provide required professional training by the American Psychological Association. The students use their home libraries or use university libraries near their respective homes for the remainder of their work. The University of Sarasota offers the Ed.D. (doctorate of education) degree, the M.A. (master of arts in education) degree, and the M.Ed. (master of education) degree. Since the time Petitioner Gullo received his degree in 1975, the required hours for the doctorate degree in education have been increased to 90 hours. The University does not have a program in psychology, and no studies in basic psychology are taught there. There are no full-time teachers, and the students are nation-wide residents. Class work is accomplished during two (2) to four (4) weeks during the summer. The University of Sarasota has not been accredited by any accrediting organization, although it has been licensed by the Florida State Board of Independent Colleges. The American Psychological Association has never approved a "non-traditional" type of university. Petitioner Gullo has 74 hours of graduate study and 27 hours of basic psychology. Petitioner has not had one year of supervised experience since receiving his doctorate, but has been working in his own clinic. Petitioner has never taken the Professional Education Service examination. Dr. Robert H. Zellar, a professor of human development counseling and professor of humanities at Southern Illinois School of Medicine, directed Petitioner Gullo's doctoral study. This study was done in "rational emotive psychoterapy." The degree was in human services, which is a broad generic term, rather than the strict academic specialization required for a degree in psychology. Dr. Zellar found Dr. Gullo competent to teach emotive psychotherapy on two occasions at the university at which Dr. Zellar was employed. Dr. Albert Ellis, a psychologist and psychotherapist, and Executive Director of the Institute for Rational Emotive Therapy in New York, New York, has known the Petitioner since 1963, or 1964. He has observed Dr. Gullo in clinical situations six (6) or seven (7) times. Each of those times he observed Dr. Gullo in clinical situations in all-day workshop situations. Those workshops observed by Dr. Ellis were during the period 1964, to 1976, or 1977. It was Dr. Ellis' opinion that Dr. Gullo is a "very competent psychologist and psychotherapist." Dr. John W. French, Dean of Education at the University of Sarasota, and the director of Petitioner's doctoral program, stated that in his opinion any student should be allowed to take a test to show what he knows regardless of his educational background. In reference to the library at the University of Sarasota, Dr. French stated that it is a "specialty" library, and its specialty is to get students started on dissertations. Primarily, the library is useful in aiding each student to work up a bibliography. Prior to the arrival of Dr. French in 1976, the assignment of students to dissertation advisors and the assignment of dissertations to readers was based more on whether a member of the faculty had recently received and read a number of dissertations, and whether it was that person's turn to get another dissertation rather than upon the expertise of the faculty member. A schedule of fees paid to the faculty for services include: $40.00 for each dissertation read and critiqued; $10.00 for each dissertation proposal read and critiqued; and $50.00 per half-day teaching in Sarasota. Dr. Thomas A. Guest and Dr. Lois M. Mueller were approved for licensure under special conditions by the Respondent Board after it examined the applications submitted by the applicants and found that they had each been licensed by the State of Illinois pursuant to that state's current laws which require, among other things, a doctorate degree in psychology. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended: The application of John Gullo for licensure as a psychologist in the State of Florida be denied. The application of John Gullo to take the examination for licensure as a psychologist in Florida be denied. DONE and ORDERED this 28th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 John J. Rimes, III, Esquire Legal Affairs Section The Capitol Tallahassee, Florida 32301
Findings Of Fact Having listened to the testimony and considered the evidence presented in this cause, it is found as follows: Dr. Richard M. Dunham is licensed to practice psychology in the State of Florida by the State Board of Examiners of Psychology. Dr. Dunham is primarily employed as a tenured professor on the faculty of Florida State University. Dr. Dunham is not trying to build a private practice, and over a two or three month period may see three to four people professionally. In connection with this limited private practice he maintains an office in his home in Wakulla County and did so at all times pertinent to this cause. It was Dr. Dunham's usual practice to see patients for counseling in his home, rather than in his office on the University campus or some other place. In 1973, Dr. Dunham was acquainted, through his service in the United States Naval Reserve, with Dan Holsenbeck, then the husband of Judy Holsenbeck. He was likewise acquainted with Judy Holsenbeck. Dr. Glenn King, a clinical psychologist with the Auburn University Clinic, counseled Mrs. Holsenbeck on October 23, 1973, in Auburn, Alabama. Over the next five or six weeks, he saw her a total of five times for counseling, the last session being November 5, 1973. She related to Dr. King that she was concerned because she was sexually attracted to other men and she was unable, to achieve orgasm during intercourse with her husband. Further, she was depressed because she felt she could not be faithful to her husband. Dr. King counseled her and found her to have a passive aggressive personality disorder with depressive features. In early December, 1973, Mrs. Holsenbeck moved to Tallahassee, Florida. Through her husband's contact with Dr. Dunham, she met with him in his office on the FSU campus sometime around December 20, 1973, to discuss her psychological problems and to seek counseling. Dr. Dunham suggested several other psychologists whom she could consult, and, in the alternative, offered to take Mrs. Holsenbeck as a patient himself. Mrs. Holsenbeck requested Dr. Dunham to take her as patient, to which request he acceded. The psychological problems Mrs. Holsenbeck related to Dr. Dunham for which she sought counseling, involved her sexual activity and were similar in nature to those related to Dr. King at Auburn. After the initial meeting on or about December 20, 1973, Dr. Dunham saw Mrs. Holsenbeck as a patient on five separate occasions. These were as follows: December 27, 1973; January 1, 1974; January 17, 1974; February 6, 1974; and February 28, 1974, which meeting Mrs. Holsenbeck recalls occurring on March 6, 1974. Each of these meetings was a counseling session and took place at the home of Dr. Dunham in Wakulla County. It was alleged that in the course of the counseling sessions on January 17, 1974, and February 6, 1974, Dr. Dunham engaged in sexual intercourse and other sexual activities with Mrs. Holsenbeck. It was further alleged, that at the last counseling session, which occurred on February 28, 1974, Dr. Dunham made sexual advances toward Mrs. Holsenbeck, which were rebuffed. No one other than Dr. Dunham and Mrs. Holsenbeck were present in the home of Dr. Dunham at the time of the counseling sessions on January 17, 1974, and February 6, 1974. Similarly, no one other than Dr. Dunham and Mrs. Holsenbeck were present at the inception of the last counseling session. However, Mrs. Dunham, Dr. Dunham's wife of 7 or 8 years, came home during that counselling session. Mrs. Dunham was aware of Mrs. Holsenbeck's presence in the house and was not aware of any sexual activity or problem between Dr. Dunham and Mrs. Holsenbeck at that time. The counseling sessions on January 17, 1974, and February 6, 1974, took place at approximately 9:00 a.m. and lasted from one hour to one and one-half hours. The last counseling session occurred in the early evening. In December of 1973, and continuing through the date of the last counseling session, Mrs. Holsenbeck worked in a race relations program headed by Dr. Dunham at F.S.U. Mrs. Holsenbeck was very dissatisfied and eventually withdrew from it in the spring of 1974. On April 18, 1974, Dr. King contacted Mrs. Holsenbeck, at the request of her husband, whereupon Mrs. Holsenbeck alleged that Dr. Dunham had made certain sexual advances toward her during the course of his treatment of her. After a further meeting with Mrs. Holsenbeck, Dr. King told her that Dr. Dunham's alleged conduct was a serious breach of ethics and asked her if she would lodge a complaint against Dr. Dunham. Thereafter, Dr. King put Mrs. Holsenbeck in touch with Dr. Wallace Kennedy, also of the FSU faculty, and under whom Dr. King had studied. Dr. King had Mrs. Holsenbeck contact Dr. Kennedy so that her allegations might be conducted to the Florida State Board of Examiners of Psychology for action by them. There was evidence presented of a serious professional and, perhaps, personal disagreement between Dr. Dunham and Dr. Kennedy, who are both in the same psychology department at FSU. This disagreement arose long before December, 1973. Both the Petitioner, Florida State Board of Examiners of Psychology and the Respondent, Dr. Richard Dunham, agree that acts of the nature alleged constitute a serious ethical breach warranting suspension or revocation of a license to practice psychology. It was not proved by clear and convincing evidence that Dr. Richard Dunham made sexual advances toward, nor engaged in sexual activities with Mrs. Holsenbeck at any time. It is a very unwise practice on the part of Dr. Dunham to counsel patients in the privacy of his own home with no one else present, particularly when such a patient is a female manifesting sexual problems. Had Dr. Dunham been more circumspect concerning this practice, there would probably have been no opportunity for charges such as those presented herein.
Recommendation There having been no finding of fact that the Respondent, Dr. Richard Dunham, engaged in the alleged activities of misconduct, it is hereby recommended that the Florida State Board or Examiners of Psychology take no action against the Respondent and dismiss the charges herein. DONE and ORDERED this 26th day of September, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, 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 26th day of September, 1975. COPIES FURNISHED: Ronald C. LaFace, Esquire W. Dexter Douglass, Esquire P. O. Box 1752 Douglass & Powell Tallahassee, Florida 32302 Post Office Box 1674 Attorney for Petitioner Tallahassee, Florida 32302 Attorney for Respondent
