The Issue The issue in this case is whether Petitioner is entitled to credit for answers scored as incorrect on questions she challenged on the March 2001 Practice of Geology and Fundamentals of Geology Examinations.
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: In March 2001, Petitioner, Susan Sitkoff, took the Practice of Geology and the Fundamentals of Geology examinations; these are multiple-choice examinations up to four hours in length. These written licensure examinations are designed to assess a candidate's knowledge and skills to practice professional geology. The National Association of State Boards of Geology ("the Association") provides these national examinations which are used by Respondent and its Board of Professional Geologists for licensure examinations. In addition to providing the actual examinations, the Association conducts analyses to ensure examination validity. In order to ensure test fairness and quality, the Association follows Standards for Educational and Psychological Testing (1999), published by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education. Test questions are written and reviewed by panels of subject matter experts who are professional geologists. Statistical analyses are reviewed by the subject matter experts so that any substandard test questions can be eliminated before generating candidates' final scores. These statistical analyses also validate the individual examination questions and answers. Each test question is submitted to four reviews by the panels of subject matter experts. These reviews ensure that each question: (1) has one correct or best answer; (2) is related to the practice of the profession; (3) is related to public protection; (4) possesses language that is clear and direct; (5) is written at an entry-level of difficulty; (6) adequately describes a problem or situation; and (7) is free of trickery. On the March 2001 examinations, nationwide (23 states), 462 candidates completed the Fundamentals of Geology examination and 372 completed the Practice of Geology examination. The examination results and a variety of statistical analyses were reviewed by a panel of subject matter experts on April 6 and 7, 2001. The reviews indicated that the examinations performed very well and exhibited a high degree of internal consistency. Petitioner was notified by the Bureau of Testing, Department of Business and Professional Regulation, on May 18, 2001, that she had earned a failing score of 67 percent on the Fundamentals of Geology examination, and a failing score of 68 percent on the Practice of Geology examination. A score of 70 percent was required to pass each examination section. On August 6, 2001, Petitioner reviewed her examination in Orlando, Florida. By letter to the Bureau of Testing, Department of Business and Professional Regulation, dated August 16, 2001, Petitioner formally filed her petition for a formal hearing to challenge her examination results. After initially indicating that she would challenge 52 questions, Petitioner came to the hearing to challenge 17 questions. Petitioner challenged questions 21, 35, 53, and 60 on the Fundamentals of Geology examination. At the hearing, Petitioner withdrew her challenge to questions 26, 78, 79, 91, and 98 on the Fundamentals of Geology examination. Petitioner challenged questions 62 and 71 on the Practice of Geology examination. At the hearing, Petitioner withdrew her challenge to questions 15, 26, 31, 53, 57, and 68 on the Practice of Geology examination. In the discussion related to the challenge of question 21 on the Fundamentals of Geology examination, Petitioner indicated that she believed "b," "c," and "d" were all correct answers. She answered "c." Respondent indicated that "b" was the correct answer. Petitioner’s expert witness opined that answer "c" was not the most correct answer. Regarding question 35 on the Fundamentals of Geology examination, Petitioner's expert witness opined that "d" (Petitioner's answer) was a misleading, but agreed that a careful reading indicated that "c" was the correct answer. Respondent's expert witnesses opined that this question was not a “trick question” [or answer] but rather used a distractor answer to deter candidates without the necessary knowledge to answer the question. Seventy-two percent of the candidates answered this question correctly on the examination. There was an in-depth discussion of the answers to question 53 on the Fundamentals of Geology examination. Petitioner submitted that her answer, "b," was the more correct answer. Petitioner's expert opined that "a," "b," and "c" were all correct answers. Respondent's expert geologist opined that only "c" was the correct answer. The testimony revealed that 51 percent of the candidates taking the examination answered "b," a higher ratio than for the correct answer "c." Respondent's expert psychometrician, Dr. Warner, indicated that the panels of subject matter experts had specifically reviewed this question due to the fact that more candidates chose the "distractor" answer than the "correct" answer. The panels of subject matter experts confirmed that "c" was the correct answer. Question 60 on the Fundamentals of Geology examination involved a diagram, which Petitioner felt was unclear in that she was unable to determine if it was a plane view or a top view. She answered "c"; the offered "correct" answer was "a." Respondent's expert geologist reported that the diagram in the question was, in fact, a structure contour map on the top of a limestone bed and the diagrams revealed a single bed. Seventy- seven percent of the candidates answered the question correctly. Petitioner indicated that she did not believe there was a correct answer to question 62 on the Practice of Geology examination and further stated that "unless you work with inclinometers for a living it would be difficult to answer this question correctly." Petitioner's expert indicated that he did not have much experience in the area. Respondent's expert geologist opined that "c," not "d," as selected by Petitioner, was the correct answer. He also indicated that he confirmed his opinion with another expert geologist from the panel of subject matter experts. Question 71 on the Practice of Geology examination addresses federal regulations in the assessment of environmental sites. Petitioner indicated that "anyone doing a Phase I [environmental assessment] would have used the ASTM guidelines" which, unfortunately, guided her to an incorrect answer involving an “ASTM circular.” Petitioner conceded that, “. . . they put federal regulations in here which would exclude that answer.” In no instance during her presentation did Petitioner demonstrate that any examination question she challenged or the "correct" answer, as offered by Respondent, was faulty, arbitrarily or capriciously worded or graded, or that she was inappropriately denied credit for any answer she gave.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing her challenge. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. _____ JEFF B. CLARK 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 24th day of June, 2002. COPIES FURNISHED: Susan Sitkoff 14024 Colonial Grand Boulevard Apartment 708 Orlando, Florida 32837 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Professional Geologists Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET"). The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties. Petitioner is not a graduate of the State University System. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement and further finding that Petitioner's educational background does not meet the requirements necessary to take the examination to become licensed in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973 Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40, .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30, 5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Carlos Martinez Mallen 33C Venetian Way #66 Miami Beach, Florida 33139 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether DNR should establish an exceptional drilling unit or units in order to prevent waste and to avoid the . . . risks . . . from . . . an excessive number of wells, Section 377.25(2), Florida Statutes (1983)? The respondents expressly declined to raise any question as to the petitioners' standing or party status.
Findings Of Fact Petitioner W. J. Jordan and apparently all the other petitioners are owners of mineral rights under the northwest quarter of the southeast quarter of Section 13, Township 5 North, Range 29 West, Santa Rosa County, Florida. T. R. Miller owns the mineral rights under the northeast quarter of the southeast quarter of Section 13 and has leased them to Smackco. Near the center of the southeast quarter of Section 13 (the existing unit) respondent Smackco drilled the L. W. Roberts 13-4 well. NOT COMMERCIALLY PRODUCTIVE Smackco drilled the L. W. Roberts 13-4 well down to the Norphlet formation and went 49 feet further, into the Norphlet sands, before giving up its efforts to extract oil from the well. Although Smackco did find a mixture containing 28 to 30 percent hydrocarbons, the hydrostatic head precluded commercial production. If the well had come in, royalties would have inured to the benefit of petitioners, T. R. Miller, and the owners of the mineral rights under the southern half of the existing unit. Although the evidence showed that extracting oil from the L. W. Roberts 13-4 well was not commercially feasible now, it did not establish that the price of oil will never rise to the point that production would make economic sense. ADDITIONAL DATA At least three other oil wells have been drilled at the Mount Carmel Prospect in Township 5 North, Range 29 West, Santa Rosa County, Florida. In keeping with applicable statutes and rules, these wells are also located at or near the center of their respective quarter sections. Except where no governmental sections are laid out (offshore or in Spanish land grants), or where all rights affected by a change are in one ownership, DNR has adhered to the concededly arbitrary use of quarter sections as drilling units. Information gained from the wells drilled at the Mt. Carmel Prospect, and from seismic tests performed there formed the basis for uncontroverted expert opinion that a sandy mass, known to geologists as the Norphlet structure, lies almost three miles below the earth's surface; and that a pool of oil floats on salt water within the Norphlet structure, as shown in the Appendix to this order. The L. W. Roberts 13-4 is on the northern edge of the pool that the geologists hypothesize. The geophysicist's testimony that the Jay fault running northwest southeast and the smaller almost perpendicular fault running off to the northeast lie approximately as depicted in the Appendix was also uncontroverted. These faults may act as walls keeping oil on one side. The faults themselves do not hold oil. THE NEXT WELL If a new well were drilled in the center of the northwest quarter of Section 16, at a point one half mile due south of the L. W. Roberts 13-4, see Appendix, it would be near the western edge of the pool of oil, if the geologists are right. (If the geologists are wrong, drilling there might mean hitting the fault zone, as happened with the Franks Pittman well.) Drilling a quarter mile north, at the center of the first proposed drilling unit, would reduce the risk of hitting the fault, and might make commercial production of a substantial amount of oil possible. DRAINAGE LIKELY Smackco's geophysicist conceded that hydrocarbons at the L. W. Roberts 13-4 and hydrocarbons under the northwest quarter of the existing unit "very possibly" will migrate to a well in the center of the proposed drilling unit, if hydrocarbons are extracted in large quantities there. A well of the kind and to the depth contemplated can be expected to drain 160 acres more or less. The geologists cannot know precisely what the situation is three miles down on the basis of the information they have at hand. They may be mistaken now about the location of oil just as they were when they recommended earlier well sites in the Mt. Carmel Prospect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DNR deny Smackco's petition for exceptional drilling units. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of March, 1984. COPIES FURNISHED: James Reddick, Esquire and Dan Stewart, Esquire Suite 5 808 Caroline Street, Southeast Milton, Florida 32570 J. Nixon Daniel, III, Esquire and Spencer Mitchem, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Charles J. Hardee, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303 * NOTE: Original Recommended Order has an appendix map which is available for review in the Division's Clerk's Office.
The Issue Whether Petitioner is qualified for licensure as a professional geologist pursuant to the grandfather provision of Section 492.105(2)(c), Florida Statutes (1987).
Findings Of Fact Andrew Minot Nicholson, Petitioner, applied for licensure as a professional geologist pursuant to the grandfather provisions of Section 492.105(2)(c), Florida Statutes. This provision exempts qualifying applicants from taking and passing the examination required of other applicants. The Respondent has stipulated that Petitioner is in all respects qualified for licensure, except for the educational requirements contained in Section 492.105(1)(d)2, Florida Statutes. Petitioner graduated from the Florida Institute of Technology (FIT) in 1973 with a degree in Ocean Engineering. He later returned to FIT and received a master's degree in Business Administration. The courses which Petitioner argues meets the educational requirements for licensure as a professional geologist are as follows (all from FIT) Course Abbreviation Course Title Course Hours Earned ST161 Introduction to Earth and Space Sciences 3 ST313 Materials Science I 3 ST314 Materials Science II 3 OE3505 Ocean Engineering Design 3 ST315 Materials Laboratory 1 0E3583 Marine Geology Laboratory 1 0E4506 Ocean Engineering Design II 3 OE3001 Introduction to Oceanography 3 OE3503 Marine Geology 3 OE3002 Chemical Oceanography 3 OE3500 Fluid Mechanics I 3 OE4507 Soil Mechanics 3 OE4508 Hydroacoustics 3 OE3581 Fluid Mechanics Laboratory I 1 OE3502 Fluid Mechanics II 3 OE3582 Fluid Mechanics 1 Laboratory II OE4502 Optical Oceanography 3 0E4581 Optical Ocean Laboratory 1 OE4433 Solid Mechanics I 3 0E4505 Ocean Waves 3 The above courses, with the exception of Introduction to Earth and Space Sciences, are upper division courses successfully completed by Petitioner. The hours listed are quarter hours. Fifty quarter hours are roughly equivalent to 40 semester hours. Of those courses in finding four above only Introduction to Earth and Space Sciences (ST161), Marine Geology Laboratory (OE3583), Introduction to Oceanography (OE3001) and Marine Geology (OE3503) were accepted by Respondent as meeting the statutory identification as geology courses. Geology is a precise science which relies on knowledge about principles which can only be obtained by taking core courses in geology programs. These core courses include Historical Geology, Structural Geology, Mineralogy, Optical Mineralogy, Petrology, Sedimentology, Geophysics, Geochemistry, Stratigraphy, Economic Geology, Hydrogeology, Field Methods and Paleontology. The courses taken by Petitioner at FIT were primarily oceanographic engineering or oceanography courses and the geological aspects of the courses he took related only to the aquatic aspects of geology. Petitioner's practical experience, which was accepted as adequate by the Board, involved only aquatic geology. If Petitioner's practice of geology were limited to an oceanographic setting, with the training he received at FIT, he would be qualified for licensure. However, there are not geology licenses limited to one specific field of geology. Petitioner contends that because FIT is listed in the Directory of Geoscience Departments by the American Geological Institute, a degree from that school qualifies him to meet the educational requirements for licensure. This document is a directory of academic geoscience departments which include geology departments as well as oceonographic institutes. A listing of the professors at FIT in this directory reveals a heavy orientation of their degrees towards oceanography and ocean engineering as opposed to geology. Licensing of professional geologists came to being in Florida with the enactment of Chapter 87-403 Laws of Florida. Accordingly, applications for licensure have been processed for only one year and Rules have not been adopted which define and interpret various provisions of this statute such as what constitutes "geological courses". Respondent has a proposed rule to provide a more detailed explanation of what criteria an applicant must meet to satisfy the educational requirements for licensure. Such a policy constitutes incipient agency action pending the adoption of rule. Respondent's witness explained that since there are no provisions for limited licenses in geology, the Board has adopted a policy which requires applicants for licensure to demonstrate that they have taken enough core geology courses to have been subjected to nearly all phases of geology. This will permit them, hopefully, to at least recognize problems that may need additional research to resolve, while holding themselves out as licensed professional geologists.
Recommendation It is recommended that the application of Andrew Minot Nicholson for licensure as a professional geologist under the grandfather provisions of Section 492.105(2)(c) Florida Statutes be denied. DONE and ENTERED this 22nd day of December, 1989 in Tallahassee, Leon County, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0282 Treatment accorded Petitioner's proposed findings. Proposed findings submitted by Petitioner are accepted and are in general included in the findings submitted by the Hearing Officer except: Petitioner's Exhibit 5. Reject last sentence. "Geological courses" was defined by Respondent's witness. Petitioner's Exhibit 8. Rejected. Respondent looked at the curriculum and the professor's fields of expertise who taught the courses. From these two factors the department concluded the courses were not primarily geology courses, although all of the courses touched slightly on geology. Treatment accorded Respondent' proposed findings. Proposed findings submitted by the Respondent are accepted. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Legal Affairs Suite 1603, The Capitol Tallahassee, FL 32399-1050 Maxwell G. Battle, Jr., Esquire 1460 Beltrees Street Suite A Dunedin, FL 34698 Kenneth D. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Anna Polk Executive Director Board of Professional Geologists 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Did Respondent engage in unlawful employment practices against Petitioner in violation of Section 760.10(1) and (7), Florida Statutes, in effect at the time of the alleged acts, contrary to the Florida Civil Rights Act of 1992 (the Act)?
Findings Of Fact Petitioner as an "aggrieved person" filed a complaint with FCHR. § 760.02(10), Fla. Stat. (2005). Given the posture of this case, Respondent is an "employer" employing 15 or more employees in each of 20 or more calendar weeks within the period contemplated by Petitioner's complaint. It is so inferred. § 760.02(7), Fla. Stat. (2005) Petitioner's race as he describes it, and it is found, is Black. In October 2003 Petitioner began employment with Respondent in its Bureau of Laboratory Services, Jacksonville, Florida, as a Medical Laboratory Scientist III (Scientist III). His status was as a probationary employee. He remained in that status throughout his employment with Respondent. Before beginning employment with Respondent, Petitioner had earned a bachelor of science in microbiology in 1982 from the University of Alabama. In 1989 he earned a master's of science in microbiology from that same institution. In 1996 he was awarded a Ph.D. in microbiology from the University of Alabama. Upon achieving his master's degree, Petitioner served as a research assistant for the University of Alabama at Birmingham from September 1, 1989 through December 31, 1992. Part of that employment overlapped his employment as a graduate researcher from September 1, 1992 through May 29, 1996, at the University of Alabama in Tuscaloosa, Alabama. There was overlapping service at the University of Alabama at Tuscaloosa in the period of September 2, 1992 through April 29, 1996, when Petitioner had a position as a teaching assistant. Between September 5, 1996 and February 25, 2000, Petitioner worked as a research fellow for the National Institute of Health at the University of Florida in Gainesville, Florida, where, as he indicated in an employment application, "Petitioner was responsible for developing new recombinant Interferon Gamma ligands and receptors for the treatment of viral disease and cancer (accomplished). Responsible for supervision [sic] (two) graduate students in molecular techniques." Following the work with the National Institute of Health, Petitioner took a position with ELISA Technologies, Inc., in Gainesville, Florida, as a laboratory director for the period March 1, 2000 through February 5, 2003, in which his application for a job position indicated that Petitioner was: "Responsible for directing laboratory testing of customer samples and supervising a five-member staff. Responsible for developing, performing, and directing new test development for the CDC and WHO (accomplished). All other research and development projects (accomplished)." Petitioner next worked at Jacksonville University in Jacksonville, Florida, as a adjunct assistant professor from what is perceived the date of January 6, 2003 through his employment with Respondent in its Bureau of Laboratory Services. While serving as an adjunct assistant professor Petitioner in his job application recounts that he was: "Responsible for teaching nursing and biology majors microbiology courses. Responsible for teaching general-clinical laboratory techniques." In his role as Scientist III with Respondent, Petitioner was expected to meet the following expectations: Will learn DNA fingerprinting methods for salmonella and tuberculosis as well as 16S sequencing. Will learn techniques sufficiently to act as a back-up as needed. Timeframe: November - January Will oversee development of universal procedural manual for all testing in molecular section. Will produce master copy by end of February. Timeframe: November - February Will oversee the development and documentation of quality control, quality assurance and proficiency testing procedures in the molecular section. Will incorporate all into a single document by the end of March. Timeframe: November - March Will eventually be responsible for the ordering of all equipment and reagents for the molecular section. Duties to include monthly reconciliation reports. Timeframe: November - April Will represent the molecular section in the development of BOLIMS. Will become familiar with reporting and date management of all reports generated in the molecular section. Timeframe: November - Ongoing Will act as back-up for BT testing. Will learn all procedures once security clearance has been granted. Timeframe: January - Ongoing Will assist in implementation of VNTR-MIRU and PCR testing for malaria. Timeframe: January - Ongoing The months reflected in this statement of expectations began in November 2003 and extended into 2004. In his role as a Scientist III Petitioner had no supervisory duties. He was given projects to do. He was provided an appraisal task form in relation to his responsibilities. Petitioner also worked on a QA/QC manual (quality assurance and quality control). Initially Petitioner was supervised by Dennis Nolan. Mr. Nolan left his employment with Respondent to take another position. Dr. Dean Willis, who has a doctorate in public health, became Petitioner's supervisor with Mr. Nolan's departure. The interaction between Petitioner and other members of the laboratory at Jacksonville is reflected in the Petitioner's Exhibits numbered 4, 5, 6, 11, 19, 25, 26, 27, 28, 29, 31 and 45. This series of e-mails are an indication of Petitioner's participation in the organization and inclusion in the efforts of that organization in carrying forward its duties. Petitioner during his employment in the Scientist III position worked on a malaria project. In addition he worked on a whooping cough test. Earlier in his employment Petitioner underwent a performance appraisal or review of his work. In February 2004 when Mr. Nolan resigned from the laboratory in Jacksonville, his position as BA II, an SES- classified position in the personnel system in Florida government, came open. In that month Respondent advertised to fill the position. In that solicitation Petitioner was the only applicant to replace Mr. Nolan. As a consequence the position was re- advertised. The initial advertisement for BA II position closed on February 16, 2004. The second advertisement for that position closed on March 15, 2004. The information concerning the position was the same in both instances. Dr. Willis as the responsible person at the Jacksonville laboratory, decided to re-advertise the position to try and attract additional applicants. The position was re-advertised and more candidates expressed an interest by applying for the position. Petitioner was among the applicants applying during the re- advertisement. Unlike the circumstance in the first advertisement, on this occasion there was the expectation that someone would be hired for the BA II position. Ultimately Dr. Ming S. Chan, Chief of Laboratory Services, also referred to as a Bureau Chief for Respondent at its Jacksonville office, condoned the re- advertisement. Dr. Chan holds a Ph.D. in chemistry. Among the candidates for the BA II position, four had their applications considered and were interviewed for the position. Petitioner was among the candidates whose applications were reviewed and who underwent an interview. The applications were considered and interviews conducted by Dr. Willis and by Susanne Crowe, another BA II at the Jacksonville laboratory. She holds a master's in health and an undergraduate degree in biology. Ms. Crowe was chosen to interview candidates for the available BA II position as a person who was in a similar position within the organization. The result of the process for ranking the candidates whose applications were considered and who underwent an interview for the job placement was that Dr. David Stuart Beall, a non- Hispanic white male, was selected to fill the BA II position as the top ranked candidate, with Petitioner placing second among the four finalist. The other two persons interviewed for the BA II were interviewed by phone. It is not perceived that any advantage was created for those persons interviewed by phone compared to the live interviews afforded Petitioner and Dr. Beall, given the ranking of the candidates. When Dr. Beall applied for the BA II position he was working for the Center for Disease Control and Prevention (CDC) and was housed in the offices of the Bureau of Laboratory Services in Jacksonville, Florida. Dr. Beall decided to apply for the BA II position without prompting from anyone employed by Respondent. He was not given any special training to allow him to gain the BA II position nor allowed any other form of preference that could be considered discriminatory when compared to the opportunities made available to Petitioner. The office that Dr. Beall was placed in before he became an employee with Respondent in the BA II position, was based upon space available and not in furtherance of a preference that aided Dr. Beall in gaining the BA II position. By comparison to Petitioner in the application process, the details within the Petitioner's application, which have already been described as to education and work history, the following information was provided by Dr. Beall in his application for the BA II position. He graduated from the University of Florida in 1986 with a bachelor of science in microbiology and cell science. He received a masters in microbiology and cell science from that institution in 1992. He earned a Ph.D. in microbiology and cell science in 1995 from the University of Florida. Dr. Beall served as a graduate assistant at the University of Florida from June 1, 1989, through August 1, 1995. During that time, as he indicated in his application he: Executed several lab projects including the study of ethanol fermentation by recombinant Escherichia coli expressing Zymomonas mobilis pdc and adhb genes for the conversion of xylose and other biomass carbohydrates to fuel ethanol. Also isolated and genetically engineered several novel strengths of Erwinia for the production of fuel ethanol from waste plant biomass. From November 1, 1996, through March 31, 1999, Dr. Beall worked as a post-doctorial research associate with the CDC. During that time as the application described he: Designed and executed experiments that resulted in the identification of several differentially expressed gene products that are associated with the induction of latency in Mycobacterium . Incorporated design improvements to the shift-down model for MTB growth. Part of this with TB lead to the issuance of a U.S. for an assay to detect antigens associated with latent tuberculosis infections. Attempted to identify Mycobacterium tuberculosis virulence factors using RNA subtractive hybridization. Trained new laboratory technicians how to work safely inside a BSL-3 containment facility. From April 5, 1999, through April 30, 2000, Dr. Beall worked as a guest researcher for the CDC, during which time he as the application described: Helped organize and contributed work to several lab projects including the development of novel assays for bacterial meningitis detection in clinical samples using TaqMan and Light Cycler technologies and the sequencing of the variable loop regions of the porA gene from several hundred clinical isolates of Neisseria meningitidis. From August 4, 2000, until March 12, 2004, Dr. Beall acted as a visiting professor of biology at the University of North Florida in Jacksonville, Florida, during which time as his application relates: My duties involve instruction of approximately three to four hundred students in lecture and laboratory sections per semester along with organizing and coordinating the presentation of each courseA, A's materials and tests. Additionally, I provide recommendations for students entering professional programs and mentor students for their senior presentations. Beyond my teaching responsibilities I help administer and the development of the Masters degree program as well as participate search committees to fill vacancies. This past summer semester I developed and instructed the Pathogenic Bacteriology course. The applications for the BA II position executed by Petitioner and Dr. Beall had a section which called upon the applicants to set forth in their own words the knowledge/skills/abilities that they believed they would bring to the position. In that context Petitioner said about himself: Knowledge and skills needed to isolation [sic] and identification [sic] (biochemical and Molecular procedures) pathogenic and medically important bacteria and some viruses. Knowledge and skills needed to identify Mycobacterium tuberculosis complex (biochemical and Molecular procedures). Experience in supervising testing staff and directing basic and applied research projects. Working and written knowledge of CLIA, CAP, GMP, and ISO 2000 requirements for QA/QC. Ability to generate, analyze, present and publish (independently and collaboratively) data in referred scientific Journals. Ability to implement, direct, and complete simple and complex projects. In contrast, Dr. Beall related his knowledge/skills/ abilities as being: My formal training has afforded me a wide range of technical skills. My graduate school projects focused on the genetic engineering and development of novel, environmental benign methods of producing fuel ethanol from waste plant material. These studies relied heavily on knowledge of molecular biology, bacterial genetics, and cellular physiology. My postdoctoral training as an ASM/NCID fellow at the Centers for Disease Control and Prevention in Atlanta provided me invaluable experience in fields of Public Health and bacterial pathogenesis. This work involved the development of model growth systems and nucleic acid based assays for detecting pathogenic bacteria such as N. meningitides, H. influenzae, and M. tuberculosis. There I adapted traditional assays for use with the latest generation PCR machines TaqmanA, A and Light CyclerA, A. I have also trained and supervised numerous laboratory personnel in the techniques of molecular biology and advanced laboratory safety practices. I managed and supervised the projects of a variety of associates including visiting researchers, lab technicians, and student interns. The occupation profile related to the BA II position, for which the candidates contended, indicated in the way of Examples of Work: Plans laboratory services according to statewide program needs. Consults with county health officers and staff regarding laboratory procedures and program planning related to laboratory testing. Coordinates state and federal laboratory services in outbreaks or situations when testing by specialized laboratory units is required. Consult to physicians and private hospital laboratories. Plans and participates in special research projects. Performs comparative evaluation of new and existing laboratory procedures. Prepares reports and provides information to the director, assistant director and program office. Further, the occupation profile set out examples of job characteristics when it stated: Provide Consultation and Providing consultation and expert Advice to Others advice to management or other groups on technical, systems- related, or process related topics. Communicating With Providing information to Other Workers fellow workers, and subordinates. This information can be exchanged face-to-face, in writing, or via telephone/electronic transfer. Documenting/Recording Entering, transcribing, recording, Information storing, or maintaining information in either written form or by electronic/magnetic recording. Getting Information Needed Observing, receiving, and otherwise To Do The Job obtaining information from all relevant sources. Developing and Encouraging and building mutual Building Teams trust, respect, and cooperation among team members. Analyzing Data Identifying underlying principles, or Information reasons, or facts by breaking down information or data into separate parts. Updating and Using Keeping up-to-date and knowing Job-Relevant Knowledge one's own jobs' and related jobs' and related jobs' functions. Communicating With Persons Communicating with persons outside Outside Organization the organization, representing the organization to customers, the public, government, and other external sources. This information can be exchanged face-to-face, in writing, or via telephone/electronic transfer. Establishing and Developing constructive and Maintaining Relationships cooperative working relationships with others. Developing Objectives Establishing long range objectives and Strategies and specifying the strategies and actions to achieve these objectives. Within BA II position examples of knowledge, skills, and abilities were to the following effect: Coordination Adjusting actions in relation to others' actions Reading Comprehension Understanding written sentences and paragraphs in work related documents Critical Thinking Using logic and analysis to identify the strengths and weaknesses of different approaches Speaking Talking to others to effectively convey information Judgment and Decision Weighing the relative costs and Making benefits of a potential action Time Management Managing one's own time and the time of others Implementation Planning Developing approaches for implementing an idea Management of Personnel Motivating, developing, and directing Resources people as they work, identifying the best people for the job Identification of Identifying the things that must be Key Causes changed to achieve a goal Visioning Developing an image of how a system Should work under ideal conditions Administration Knowledge of principles and processes and Management involved in business and organizational planning, coordination, and execution. This may include strategic planning, resource allocation, manpower modeling, leadership techniques, and production methods. English Language Knowledge of the structure and content of the English language including the meaning and spelling of words, rules of composition, and grammar Mathematics Knowledge of numbers, their operations, and interrelations including one or more of the following: arithmetic, algebra, geometry, calculus, statistics, and their applications Chemistry Knowledge of the composition, structure, and properties of sub- stances and of the chemical processes and transformations that they undergo. This includes uses of chemicals and their inter- actions, danger signs, production techniques, and disposal methods Economics and Accounting Knowledge of economic and accounting principles and practices, the financial markets, banking, and the analysis and reporting of financial data Law, Government Knowledge of laws, legal codes, court and Jurisprudence procedures, precedents, government regulations, executive orders, agency rules, and the democratic political process The job description for BA II stated that the employee "must be licensed or eligible for a clinical/public health laboratory license at the supervisor level." Petitioner held a clinical laboratory technician's license issued by the State of Florida, Department of Health, Division of Medical Quality Assurance. He did not, and neither did Dr. Beall, hold a license as a clinical/public health laboratory licensee at the supervisory level. Both Petitioner and Dr. Beall met the education requirements for BA II that called upon the candidate to have a masters or equivalent work experience. Both candidates had Ph.D.s. The candidates for the BA II position were scored in relation to their applications through a matrix. Within the matrix was the consideration of education, experience, to include years of experience, supervisory experience, and management experience. There was a potential score for veterans' preference. Neither candidate, Petitioner nor Dr. Beall was entitled to veterans' points. There was a score for licensure in a supervisors or directors capacity, as to eligibility as well as licensure. There was a score for writing ability and a score for public health lab experience. The matrix scores for Dr. Beall and Petitioner respectively are found within Respondent's Exhibits numbered 5 and 6 admitted as evidence. In the last analysis, Dr. Beall received a 68 on his application. Petitioner received a 61. The differences in the scores pertain to a two point difference for ability to communicate in writing, in which Dr. Beall received a score of 8 out of 10 and Petitioner received a score of 6 out of 10 possible points. Dr. Beall received 10 points maximum for having worked at least three years in a public health lab, where as Petitioner did not receive points in that category. Apparently the basis for assigning the points for public health lab experience was in relation to Dr. Beall's experience with the CDC referred to in his application. Petitioner scored 15 points for work experience and Dr. Beall received 10 points. Petitioner and Dr. Beall were interviewed by Dr. Willis and Ms. Crowe, with each interviewer assigning scores for the interview to the respective candidates. Dr. Willis assigned Dr. Beall a score of 73.5 and Petitioner a score of 65 for the interview. Ms. Crowe assigned Dr. Beall a score of 72 and Petitioner a score of 64 for the interview. The scores in relation to the interviews were averaged. That average was added to the score received for the application review, the result being that Dr. Beall received an overall score of 138.25 and Petitioner a score of 125.50 when finally concluded. In fact, the chart reflecting these scores and averages is such that the actual score for Dr. Beall by that process could have been somewhat higher than is reflected in the chart. The chart is Respondent's Exhibit numbered 7 admitted as evidence. Ms. Crowe in her testimony established that Petitioner was disorganized during his interview session to obtain the BA II job. The ranking of the candidates for the BA II position was first assigned on April 13, 2004. Petitioner was not satisfied with the outcome in which he was not offered the job. He refers to an April 14, 2004 discussion pertaining to the interview score he received aside from the assignment of points during the application evaluation. Petitioner's Exhibit numbered 14 admitted as evidence is constituted of an e-mail sent from Petitioner to Dr. Willis, the subject being the April 14, 2004 discussion of the interview score. It also refers to a meeting on the morning May 4, 2004, between Petitioner and Dr. Willis on the decision that had been reached to hire Dr. Beall. The emphasis in this communication related to Petitioner's background and his complaints about the score received in the interview. At the end of this communication Petitioner described how he stood on professional principle and was seeking reciprocation of those principles in what he refers to as "this grievance process and in the future." In the e-mail to Dr. Willis Petitioner referred to, "elimination of a candidate based on race is especially frightening when the minority candidate is more qualified than the individual offered the position." The e-mail was sent from Petitioner to Dr. Willis on May 18, 2004, as amended on that same date by a separate E-mail. On May 24, 2004, Dr. Willis acknowledged receipt of the E-mail. The effect of Petitioner's complaints about the scoring directed to Dr. Willis led to further review by Dr. Willis. The outcome was that 5 points Dr. Beall received for management experience in relation to his application were deducted, while 15 points were added for eligibility for licensure as a director. This adjustment is reflected in the scoring matrix previously described. Petitioner was not assigned any points for management experience and received the same 15 points for eligibility to be licensed as laboratory director that were assigned to Dr. Beall in his application. This outcome is also reflected in the scoring matrix previously described. The decision to hire Dr. Beall for the BA II position was not based upon race or a decision contrary to Petitioner's race. Sometime in the latter part of May 2004, Dr. Beall assumed the BA II position and became Petitioner's supervisor by virtue of being hired in the position. At about the same time Petitioner made an internal complaint, a complaint within the Respondent Agency claiming discrimination on the basis of race, pertaining to the manner in which Dr. Beall was selected for the BA II position to the exclusion of Petitioner. The internal complaint which Petitioner filed was with Respondent's EEOC Office. Petitioner was not satisfied with the internal process for resolving his complaint of discrimination through the Respondent and decided to file a complaint with FCHR, which forms the basis for the present case. After Dr. Beall became Petitioner's supervisor he reviewed Petitioner's work. He observed that Petitioner was aloof, difficult, recalcitrant, obstructive, and had a questionable demeanor. He found Petitioner's work to be unorganized. He met several times with Petitioner to address the question of organization. Responses required from Petitioner to Dr. Beall were not prompt or clear when made. There was a problem about failure to contact Dr. Beall as supervisor when Petitioner decided to take leave. Petitioner claimed to have been at work when he was not at work, as Dr. Beall perceived the situation. Dr. Willis, who supervised Dr. Beall at that time, was aware of Dr. Beall's concerns about Petitioner's performance, in particular, his lack of cooperation and the inability to find Petitioner at the office, in that Petitioner would leave the premises without advising Dr. Beall. By comparison, during the time that Dr. Willis supervised Petitioner there was a situation concerning a county health department and tests for rabies. Petitioner became involved and gave a response to the inquiry by the county health agency that Dr. Willis considered to be inaccurate or misleading. This lead to a situation in which the person within the Bureau of Laboratory Services who properly should have responded to the county agency inquiry, being addressed by Petitioner in a manner that Dr. Willis found troubling, as to Petitioner's ability to work with other persons within Respondent agency. Eventually Dr. Beall recommended that Petitioner be dismissed from his position before completing his probationary period. The reason for this recommendation related to Petitioner's demeanor, to include his willingness to cooperate while undergoing the review of his work. There were issues with reports rendered by Petitioner, considered to be lacking in professionalism, problems with attendance and leave and a lack of progress in the list of expectations that have been referred to earlier. Dr. Willis concurred with the recommendation that Petitioner be dismissed. Linda Boutwell, who was personnel officer within the Bureau of Laboratory Services in Jacksonville, was also consulted concerning the dismissal. Concerning the disposition of Petitioner's employment, Caroll David Fulgher was consulted as an employee of Respondent's Office of Human Resources in Tallahassee. It was explained to Mr. Fulgher that Petitioner tended to ignore his supervisor Dr. Beall and to do what Petitioner preferred, contrary to the wishes of his supervisor. It was explained to Mr. Fulgher that the quality of Petitioner's work was not satisfactory and that difficulties were experienced in relation to Petitioner's attendance and leave. Following discussion with Mr. Fulgher, it was suggested that the matter be considered by the Bureau Chief, Dr. Chan. Mr. Fulgher prepared a letter dismissing Petitioner from his employment. This letter was dated October 13, 2004. It was signed by Dr. Chan indicating his agreement with the choice to dismiss Petitioner. Respondent's Exhibit numbered 10 is a copy of that letter. It was presented to Petitioner, thus terminating his employment with Respondent. The supervision of Petitioner, to include supervision by Dr. Beall, evidenced no discriminatory intent based upon race, nor was the choice to dismiss Petitioner one motivated by any desire to retaliate against Petitioner for his complaint concerning the decision to hire Dr. Beall in preference to Petitioner for the BA II position.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's claims of discrimination and retaliation based upon race. DONE AND ENTERED this 28th day of March, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 28th day of March, 2006.
The Issue The issue for consideration in this case is whether the Pinellas County School Board can cancel Respondents' Professional Service Contracts and terminate their employment due to their failure to meet certification requirements.
Findings Of Fact At all times pertinent to the issues herein the Pinellas County School Board, (Board), was the agency responsible for the provision of public education from preschool through primary and secondary schooling to vocational and adult technical courses in Pinellas County. Respondent Edwards has taught agricultural subjects including horticultural service, animal service and small and large animal services, among other courses she has taught at Tarpon Springs High School since July, 1990. Respondent Corbin, Edwards' brother, has taught at Countryside High School since 1989 in the fields of horticulture, small and large animal service, and practical skills agriculture for grades 9 - 12. Neither Respondent Edwards or Respondent Corbin has a Bachelor's degree in agriculture or in any other field. Edwards has an Associate of Science degree in veterinary technology and has taken courses in agricultural education for certification at the University of Florida as well as 20 credit hours at the University of South Florida in a course in technical vocational training programs she was required to take. She was certified by the State Department of Education in horticultural science and agricultural production in 1992. Respondent Corbin has between 30 and 40 college credit hours. About 2 years after starting work, when he finished the beginning teacher program and the required technical vocational training courses, he was certified by the state to teach horticulture and agricultural production. This allowed him to teach students in grades 9 - 12, and at the adult technical/vocational level. According to Dr. Brown, the Assistant Superintendent for Personnel, sometime prior to March, 1995 it was reported to him that the School Board had two teachers in the agricultural program who were not properly certified. These teachers are the Respondents herein. By state law, the Respondents are not properly certified at the 9 - 12 grade level, but they can teach at the vocational/technical level. Under the provisions of Department of Education Rule 6A-4.054, teachers must hold a bachelor's degree in agriculture or a master's degree with an undergraduate major in agriculture in order to be certified to teach that subject at the 9 - 12 grade level. Neither Respondent has that qualification. When Dr. Brown found out about the problem, he consulted with his staff and then informed the Superintendent of the situation. Dr. Brown also contacted the State Board of Education to see if these Respondents could stay in their current positions. The response received from the State Board of Education indicated the teachers could be considered "out of field" teachers, in accordance with Rule 6A-1.0503, F.A.C., but would need to take a minimum of 6 semester hours of college credit each year to obtain a bachelor's degree in agriculture. After receiving that information, Dr. Brown met with both Respondents and advised them of the situation and what they had to do. At that time the indication he received from them was that they would not consider going to school for 6 credits each year because, as they indicated, this was not their fault. According to Dr. Brown, neither Respondent had taken the required courses this year, and it is his position that though they may be retained as teachers, they cannot be offered a Personal Services Contract unless they do. All that would be available to them would be a year to year appointment. It is quite evident that the 1989 change to the certification rule which creates the problem in this case, that of requiring a teacher in the field of agriculture to have a degree in that area, was not widely publicized, and even high ranking members of the Board staff in Pinellas County were not actively aware of its existence for several years after it was promulgated. Of the two Respondents, Mr. Corbin was hired prior to 1989, and Respondent Edwards was hired after 1989. Both were offered and received Personal Service Contracts after the rule was changed and, in fact, notwithstanding the Board's letter of March 13, 1995, indicating the intention to remove the Personal Service Contract of each, by letter dated in April, 1995, each Respondent was advised of the issuance of a Personal Service Contract for the 1995-1996 school year. This creates a problem for the Board in that, under Florida law, if a program is not properly staffed with properly certified instructors, the state funding for that program can be reduced, and this could, in this case, amount to a substantial amount of money lost to the Board. Dr. Brown considers both Respondents to be excellent teachers whom the Board would like to keep, and he would like to see them participate in the program which would allow them to remain as certified teachers by taking the 6 credit continuing education courses per year. This would be difficult for both Respondents, however. First, the courses to be taken must be approved by the Board as leading to a degree in the teacher's area of expertise. In this regard, Dr. Brown does not know if any of the courses that would qualify for the Respondents are available within a 100 mile radius of Pinellas County. By the same token, he also does not know if the Board would provide financial or time help to the Respondents in the event the courses were available. Another possibility would be for the Respondents to take courses at the University of Florida on Friday nights and Saturdays over a period of time, or during the summer. In that regard, however, Respondent Edwards' inquiry of the University clearly indicates it is not easy to get the required courses at the time when they are needed and Respondents are available. Someone trying to work toward a degree on such a part time basis could take an unreasonably extended period of time to get all the core and prerequisite courses to those which lead toward the degree in the specialty. Notwithstanding this, Dr. Ross is not aware of any instance where the Board has ever waived the requirement for courses because courses were not available locally. The current situation came as a great surprise, specifically to Mr. Corbin. In March, 1992, he was called in by his Vice-Principal, Mr. Moore, and told he was unqualified to teach horticulture. At that same time, however, he was advised as to what he had to do to come up to certification standards, and he took the required courses. As he understood it, that was all that was necessary. With the courses he took at this point, and all the TVT courses he had taken previously, he believed he was in good standing to receive his Personal Services Contract which, in fact, he did receive in April, 1994. However, he first learned of the instant crisis on March 13, 1995 by a copy of a letter to his Principal from Dr. Brown advising that Mr. Corbin's Personal Service Contract was being cancelled. There was no explanation and no reason given then, and Mr. Corbin got no answer to his questions as to the reason for this action. As a result, he sought the assistance of the union. Approximately 7 to 10 days after receipt of the letter, Mr. Corbin was advised by Dr. Brown that his only alternative, if he wanted to continue teaching at Countryside, was to take the courses that would be required for an "out of field" teacher. At this point, Mr. Corbin inquired about the availability of courses and found that a Bachelor's degree in Agricultural Science is available only at the University of Florida. There are no courses offered locally that would help him. He did not, however, check with the University of Florida to see what the availability of the courses was there. Mr. Corbin works from 6:45 AM to 3:00 PM each day at school. He also has a personal lawn maintenance business and he does a lot of extra volunteer work for the school helping out at school fairs, banquets and other similar functions. He has taught summer school off and on. He claims that if he had been aware of the change in the requirements in 1990 when they first went into effect, he would have chosen another career instead of staying with agriculture. He asserts he might well have gone on to get his undergraduate degree and a law degree, but at this time it is too late for that. Mr. Corbin realizes that if he wishes to continue his Personal Service Contract he must take the required courses as an "out of field" teacher. Otherwise he would be no more than an "appointee" to his position on a year to year basis. This would be a very tenuous and stressful position to be in. Such a person serves at the pleasure of the Principal, and Mr. Corbin does not want to be in that situation. However, even though he checked on the local availability of courses and found there were none to help him, he did not check what courses were available at the University of Florida, and he asserts at this time that if any were available he could take during the summers, he would do this. Ms. Edwards first learned of the certification problem when she was advised by an official at the School Board that in order to teach animal science for grades 9 - 12 she had to take a course at Seminole Education Center. She was also told that she would be teaching "out of field", and in order to continue with a Personal Services Contract "out of field" she had to take the additional 6 credit hours per year. She was not aware of the implementation of the 1989 rule change which requires the bachelor's degree. Had she known at any time up until March, 1995 when she first learned of it, she claims she probably would have worked toward a Bachelor of Science degree so she could teach in veterinary technology. The requirements for this would be 120 more hours which she could get only at the University of Florida. The credit hours she earned working toward her Associate degree will not transfer. After Ms. Edwards received the March 13, 1995 letter, she inquired and found she could not get the 6 credit hours she needed for this year before the end of the school year. The advisor at the University of Florida gave her a list of courses she could possibly take locally, but she was given no guarantee they would be transferable toward a degree program. Ms. Edwards is currently enrolled in a 3 hour math course but does not know if it will go toward certification. She contends Dr. Brown did not tell her anything about teaching without a contract, but she would not agree to doing that as an appointee. She feels it would be tenuous and she wants the security of a contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Pinellas County School Board terminate the professional services contracts of the Respondents, Deborah Edwards and Richard Corbin. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 16. Accepted and incorporated herein. 17. & 18. Accepted but not relevant to any issue herein. Accepted and incorporated herein. Irrelevant to any issue herein as a Finding of Fact. FOR THE RESPONDENTS: 1. - 16. Accepted and incorporated herein. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools P.O. Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 P.O. Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County 301 Fourth Street S.W. P.O. Box 2942 Largo, Florida 34649-2942
Findings Of Fact The Department excepts to the Hearing Officer's finding of fact #6 on the basis that it is a conclusion of law and should have been addressed accordingly and also that the Hearing Officer has misinterpreted the Department's Rules promulgated to implement the Supplemental Compensation Program. The Hearing Officer begins her analysis of the Petitioner's job description with the faulty premise that because she is on the waiting list for the hazardous materials team, this some how qualifies her major study concentration area of Environmental Studies as fire-related. The Department is correct when it states in its exceptions that the proper standard is whether the Petitioner's major study concentration area is fire-related, not whether the major study concentration area includes courses that are job-related. The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career. In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). The Department's exception to finding of fact #7 is accepted. The Department excepts to the Hearing Officer's finding of fact #7 on the basis that it is a conclusion of law and should have been addressed accordingly. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact #7 is accepted. RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW The Department excepts to the Hearing Officer's conclusion of law #11 the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. It appears that in this conclusion of law the Hearing Officer is simply restating the provisions of Rule 4A-37.084(3) and (5), Florida Administrative Code. Although some what difficult to follow, it does not appear that the Hearing Officer has erroneously interpreted this Rule. The Department's exception to conclusion of law #11 is rejected. The Department excepts to the Hearing Officer's conclusion of law #12, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. The Hearing Officer has incorrectly equated courses with major study concentration area. The Hearing Officer speculates that when, one day, the Petitioner might be on the hazardous materials team, she could make use of her major study concentration area. Not only is this conclusion of law unsupported, it incorrectly finds that because some courses may be fire-related, the entire major study concentration area become fire-related. This is an incorrect interpretation of the applicable Rules. See In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). Accordingly, the Department's exception to conclusion of law #12 is accepted. RULING ON EXCEPTIONS TO RULINGS ON FINDINGS SUBMITTED BY RESPONDENT IN APPENDIX TO RECOMMENDED ORDER 1. To the extent not inconsistent with the rulings on exceptions to findings of fact contained herein, the Department's exceptions to the Hearing Officer's appendix to Recommended Order are accepted. RULING ON EXCEPTION TO RECOMMENDATION Based on the foregoing rulings on the Department's exceptions to the Hearing Officer's findings of fact and conclusions of law, the Hearing Officer's recommendation that the Petitioner be accepted into the Firefighter's Supplemental Compensation Program is rejected and the appropriate disposition of this case is that Petitioner is denied participation in said program. Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Officer are adopted as the Department's Findings of Fact, with the exception of Findings of Fact #6 and 7. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusion of Law #12. That the Hearing Officer's recommendation that Ms. Richter's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Ms. Richter's request is denied. ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by SHERRY P. RICHTER is hereby DENIED. Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 6th day of May , 1993. TOM GALLAGHER Treasurer and State Fire Marshal COPIES FURNISHED: HONORABLE LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 SHERRY P. RICHTER 1980 Northwest 32 Street Oakland Park, Florida 33309 DANIEL T. GROSS, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level. DONE AND ENTERED this 31st day of March, 1993, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6298 Respondent's proposed findings of fact numbered 1 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-7, and 11 have been rejected as being subordinate to the issue being determined herein. Respondent's proposed finding of fact numbered 10 has been rejected as not being supported by the weight of the evidence. Respondent's proposed finding of fact numbered 9 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Ms. Sherry P. Richter 1980 Northwest 32 Street Oakland Park, FL 33309 Daniel T. Gross, Esq. Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Mr. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Esq. General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a psychologist. The resolution of that issue turns on whether Petitioner has a “doctoral-level psychological education” or a “doctoral degree in psychology” within the meaning of Section 490.003(7), Florida Statutes.
Findings Of Fact Petitioner applied to sit for the psychologist licensure examination by application dated November 18, 1994. Petitioner earned a bachelor of science in electrical engineering degree from the University of California at Berkley, in 1970. Petitioner earned a masters degree in business administration from the University of California at Berkley in 1972. Petitioner earned a masters degree in engineering from the University of California at Berkley in 1975. Petitioner enrolled in the Union Institute on July 1, 1977, where he was a student until he withdrew on September 30, 1981. He was readmitted to the Union Institute on March 14, 1986. He was awarded the degree of Doctor of Philosophy by the Union Institute on March 31, 1987. Petitioner’s area of specialization was “Electrical Engineering and Applied Behavioral Science”. The title of his dissertation was “A Procedural Model in a Knowledge System of a Generalized Intelligent Decision Support System Which Employs Psychological and Biological Characteristics”. Petitioner’s doctorate degree from Union Institute was with dual majors, electrical engineering and psychology. Respondent stipulated that Petitioner’s degree from the Union Institute included a Ph.D. with a major in psychology. Based on the testimony of Respondent’s expert, it is found that Petitioner was awarded a Ph.D. in psychology from Union Institute within the meaning of Section 490.003(7), Florida Statutes (1995). 1/ Petitioner’s course work at the Union Institute included a total of 135 credits for the psychological portion of his Union degree. 2/ The Union Institute was accredited by a regional accrediting agency, the North Central Association, for the first time in the year 1985. Between the time Petitioner matriculated in the Union Institute in 1977 and the time he withdrew as a student in 1981, the Union Institute was not an accredited institution. At all times after he was readmitted in 1986, the Union Institute was an accredited institution. The Union Institute did not have a formal program in psychology until 1992. The American Psychological Association (APA) is an accrediting agency recognized by the U.S. Department of Education. The Union Institute’s doctorate program in psychology has never been accredited by the APA or by any other accrediting agency recognized by the U.S. Department of Education. The doctoral program pursued by Petitioner was developed for him as a result of his negotiations with a faculty committee. 3/ His doctoral program did not include an appropriate psychological internship. The parties agreed that an appropriate psychological internship is an essential element of an APA comparable doctoral program. There was a conflict in the testimony between Dr. David Singer, an expert for the Petitioner, and Dr. Barry Schneider, an expert for the Respondent as to whether Petitioner’s doctoral program was comparable to an APA approved program. Dr. Singer testified that except for the absence of a psychological internship, Petitioner’s doctoral program at the Union Institute was comparable to an APA approved program. Dr. Schneider’s opinion was that Petitioner’s doctoral program was not comparable to an APA approved program. Both of these experts have impressive credentials and both testified at length as to the underlying reasons for their opinions. Dr. Singer has far greater experience than Dr. Schneider working with APA accreditation standards. Because of that greater experience and because Dr. Schneider misunderstood part of the work for which Petitioner was awarded credit, 4/ Dr. Singer’s opinion that except for an internship the Petitioner’s doctoral program was comparable to an APA approved program is accepted.1 Following his graduation from Union Institute, Petitioner completed two psychological internships to augment his education. The first, under the supervision of Dr. James J. Thompson, Ph. D., a California psychologist, began November 11, 1988, and ended August 1, 1990. The second, under the supervision of Dr. Cheryl A. Woodson, Ph. D., a Florida psychologist, began October 1, 1993, and ended December 31, 1994. The internship he took from Dr. Woodson was comparable to an internship that would have been required from a doctoral program approved by the APA. When he took his internship, the Board had rules that explicitly permitted a candidate to augment his or her education with a post-doctoral internship. See, Chapter 59AA-14, Florida Administrative Code. That chapter was repealed January 7, 1996. The Board is still authorized to accept evidence that a candidate has augmented his or her education. See, Section 490.005(1)(b)3, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order finding Petitioner qualified to sit for the subject licensure examination. DONE AND ENTERED this 10th day of February, 1997, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1997.
