The Issue Whether Petitioner qualifies for licensure by examination as a psychologist.
Findings Of Fact From 1968 to 1972, Petitioner, Shirley Czukerberg (Czukerberg), attended Anahuac University in Mexico City, where she studied for the degree of Licentiate in Psychology. She left Anahuac University before receiving the degree. In 1973, Czukerberg received a Bachelor's of Arts degree in psychology from New York University in New York. In 1975, Czukerberg received a Master of Arts degree in psychology from New York University. In 1977, Czukerberg obtained the title of Clinical Psychology Specialist by completing a two-year, post-graduate program through the University of Costa Rica. In the post- graduate program in clinical psychology, students complete 40 credits of academic coursework and 20 credits of practice and training at a hospital. In 1978, Czukerberg obtained the title of Clinical Psychologist from the School of Physicians and Surgeons of Costa Rica. In 1991, Czukerberg published a book in Mexico City entitled Polvo de Anos (Dust of Years) about the coming of age in women. Czukerberg is highly regarded by the psychiatrist at her exempt-setting employment and by others familiar with her work. On June 21, 1995, Czukerberg submitted an application to the Respondent, Department of Health (Agency), formerly Agency for Health Care Administration, for psychologist licensure. By letter dated July 19, 1995, the Agency advised Czukerberg that her application had been received and that she needed to submit the following documentation: Transcripts for all graduate level coursework you completed. Transcripts must be sent directly to our office from the university(ies). We have received transcripts from: Education Coursework Sheet must be completed. ADDTIONALLY YOU MUST ATTACH A PHOTOCOPY OF THE COURSE DESCRIPTION FOR EACH COURSE. COURSE DESCRIPTIONS MUST BE PHOTOCOPIES FROM YOUR SCHOOL CATALOG. Program analysis form, completed and signed by the Chairman of the department in which your doctoral program was housed, even if your program was approved by the American Psychological Association. (from school) On August 31, 1995, staff of the Agency told Czukerberg that her file was still incomplete and that the only transcript that had been received was from New York University. Czukerberg was also advised that because she was a foreign student that she would need to have her educational credentials evaluated by a credentialing agency. On October 9, 1995, the Agency again sent Czukerberg a notice that her application was incomplete and that the documentation requested must be received by the Agency by December 18, 1995, for the April 17, 1996, examination. In addition to the information which had been previously requested the notice also stated: All foreign education must be accompanied by a certified English translation. In addition, please have a degree equivalency determination completed and submitted to this office by one of the certified credentialing agencies listed in the application previously sent to you. As of November 2, 1995, the Agency had not received the additional documentation. Czukerberg was again told that she needed to submit the documentation and that she needed to have her educational credentials evaluated. By letter dated January 23, 1996, the Agency sent Czukerberg a new application package to comply with the new application procedures, which required that verification of her educational credentials be made by the director of an APA accredited psychology program. The letter stated: What you must submit at this point to complete your file is your doctoral level transcripts, verification of your supervised experience as outlined in the application materials, and verification of whether or not your educational credentials were comparable to an APA approved program at the time of your graduation. I referred you to either Dr. Evelyn Diaz of the Miami Institute of Psychology or Dr. Frank DiPiano of Nova University for the review of your educational credentials as is now allowed by rule of the board. You are not restricted to either of the above for this review; you may have your educational credentials reviewed by the director of any doctoral psychology program accredited by the APA. Further information about this is included in application materials that are forthcoming. There is also the Domestic Violence form that must be submitted; instructions regarding that are on the form. Czukerberg retained Josef Silny & Associates, Inc. (Silny), to do an evaluation of her educational credentials. By letter dated September 6, 1996, Silny opined that "Ms. Czukerberg has the equivalent of four years of undergraduate study in Psychology at a regionally accredited U.S. institution of higher education." In a letter to the Agency dated September 9, 1996, Dr. Donald K. Routh, Director of Clinical Training for the Department of Psychology at the University of Miami, gave the following opinion on Czukerberg's educational credentials: In my opinion, Ms. Czukerberg has completed a course of training in clinical psychology equivalent to that offered by the University of Miami's APA-approved Ph.D. program in clinical psychology. The equivalence of her training to ours in terms of coursework, master's thesis, practicum and internship was obvious. The only question in my mind was whether she could be regarded as having completed the equivalent of a doctoral dissertation. I do believe that the book, Polvo de Anos, (the English translation of the title would be: "Dust of Years") published in 1991 by Editorial Diani, in Mexico City, is comparable in scope and contribution. In forming his opinion, Dr. Routh had not evaluated the level of difficulty of the courses taken by Petitioner, had not reviewed a syllabus from the University of Costa Rica, and had not read the book Czukerberg had written years after she had graduated from the University of Costa Rica. At the final hearing, Dr. Routh admitted that his opinion was equivocal. In 1997, while Czukerberg's incomplete application was still pending, the rules for establishing the equivalency of a degree from a foreign university were again amended. Czukerberg was advised that in addition to the other requirements outlined in the January 23, 1996, letter, the rule required an evaluation of educational credentials by a credential's evaluation service acceptable to the Agency. On March 21, 1997, the Agency received a letter from Czukerberg, along with several items including a portion of Silny's evaluation. Czukerberg expressed her hope that the Agency would soon review her application. As of May 2, 1997, Czukerberg's application was still incomplete. The Agency had not received the official transcript from the University of Costa Rica nor had it received verification of her supervision. The incomplete application was forwarded to the Agency's credentials committee, who tabled the matter for consideration by the full Board of Psychology. On June 6, 1997, the Agency voted to deny Czukerberg's application for licensure by examination. In a letter to Josef Silny & Associates, Inc., dated July 7, 1998, the Director of the Graduate Program in Clinical Psychology at the University of Costa Rica opined on the degrees that are awarded by the University of Costa Rica in Psychology and stated: In reply to your fax of 07-06-98, I proceed to answer the questions you ask me: The University of Costa Rica does not offer a Doctor Degree in the field of Psychology. There are Licentiate and Master Degree Programs in different areas of Psychology and Graduate Studies in Clinical Psychology. The University of Costa Rica offers Doctor in Philosophy Degrees in other sciences and two types of Masters Degrees: Academic and Professional. The first one emphasizes research in a specific area. The second emphasizes practical training in skills and abilities on a specific area. At the present time the Graduate degree in Clinical Psychology is equivalent to a Professional Master Degree, which is the highest degree a student can obtain in the field of Psychology. We are not aware if in other countries, due to the number of hours of practice and academic courses required, and the time dedicated to training, as I mentioned in my previous fax, said degree could be the equivalent to a Doctor of Clinical Psychology Degree. Furthermore, I would like to clarify that, in order to be accepted in the Graduate Program in Clinical Psychology, the Psychologist must have a Licentiate Degree in Psychology and be a member of the Association of Psychologists. Bachelor Degrees in Psychology are not accepted. In reply to Point 2, I insist on the following: Graduate studies in Clinical Psychology are the highest level studies that can be done in Costa Rica. There are no Doctor Degree Programs in any area of Psychology. After reviewing the correspondence from the University of Costa Rica, Silny re-evaluated Czukerberg's educational credentials and issued another report dated August 10, 1998, in which Silny gave the following opinion: In summary, it is the judgment of Josef Silny & Associates, Inc., International Educational Consultants, that Ms. Czukerberg [sic] education in Mexico and Costa Rica is the equivalent of four years of undergraduate study in Psychology, and completion of the U.S. degree of Master of Science in Clinical Psychology earned at a regionally accredited institution of higher education in the United States. The Agency accepts educational evaluations performed by Silny. The degrees which Czukerberg received from the University of Costa Rica are not equivalent to a Pys.D., an Ed.D. in psychology, or a Ph.D. in psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Shirley Czukerberg's application for licensure by examination for a psychologist. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0788 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Donna Erlich, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Shirley Czukerberg, pro se 5809 Northwest 21st Way Boca Raton, Florida 33496
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination at the final hearing was whether the Petitioner, Edward Hoffman, is entitled to licensure in Florida as a psychologist. At the final hearing, Respondent's Composite Exhibit 1 was offered and admitted into evidence.
Findings Of Fact On August 1, 1983, the Petitioner Edward Hoffman applied for psychologist licensure by examination with the Respondent Department of Professional Regulation. Following a review of the Petitioner's doctoral transcript, supervision forms and other information submitted, the Board of Psychological Examiners determined that the doctoral program completed by the Petitioner was not comparable to those approved by the American Psychological Association as required by Section 490.005(1)(b), Florida Statutes, and that inadequate documentation was submitted to verify completion of two (2) years of full-time experience in the field of psychology, only one of which may be predoctoral as required by Section 490.005(1)(c), Florida Statutes. On October 21, 1983, the Petitioner requested a hearing on the denial in order to dispute the Board's findings that he had failed to provide documentation of supervised internship and had attended a graduate program that did not meet the Board's rules. The Petitioner was provided notice of the formal hearing at the address he supplied in his initial request for hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered denying the application for examination as a psychologist of the Petitioner Edward Hoffman. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of December, 1983. SHARYN L. SMITH 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 20th day of December 1983. COPIES FURNISHED: Edward Hoffman, Ph.D. 11301 Northwest 15th Street Pembroke Pines, Florida 33026 Randall A. Holland, Esquire Assistant Attorney General Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner is licensed as a psychologist in Argentina, where she was educated. She attended the University of Buenos Aires completing a six-year program in four years. Petitioner received a degree in psychology from the University of Buenos Aires on December 23, 1977, but did not receive her diploma from that institution until June of 1979. She became licensed as a psychologist by the Ministry of Health in 1979. Upon her graduation from the University of Buenos Aires, Petitioner began to practice psychology in Argentina. She worked in a hospital from 1979 to 1983. Petitioner describes this period of work as her "internship." She also worked in a drug abuse program, which she also describes as an "internship." During these work experiences, Petitioner supervised other personnel. During the same period of time, specifically from 1980 to 1982, Petitioner also engaged in private practice. In 1981 Petitioner enrolled in the Argentina School of Psychotherapy for Graduates, where she took a number of courses and wrote a paper which she presented to the faculty there. The Argentina School of Psychotherapy for Graduates is not a degree-granting institution. Upon completion of the four year program, only a certificate is issued. Petitioner did not produce a transcript from the Argentina School of Psychotherapy for Graduates as part of her application for licensure in Florida. She submitted only a syllabus, i.e., a listing of the names of the courses she took at that institution. A syllabus, however, is not a transcript. Subsequently, Petitioner moved to the state of Michigan where she applied for licensure as a psychologist at the master's degree level. Based upon her education and training, she received a limited license to practice psychology in 1989. Michigan recognizes master's degree level psychologists. In Florida, however, master's degree level applicants are not eligible for licensure as psychologists. In 1991 Petitioner was interviewed by the licensure board in Michigan. Subsequent to that interview, Michigan granted her full licensure to practice as a psychologist in that state. In granting Petitioner full licensure, the Michigan licensing board deemed that her education and training were equivalent to education and training at the doctorate level even though between 1989 and 1991, Petitioner had not added to her education credentials. She had merely obtained additional supervised experience. At some point, Petitioner took and passed the Michigan examination for licensure. The Michigan examination is not the same as the examination for licensure developed by Professional Examination Services. Petitioner has never taken the national examination required for licensure in Florida. In 1993, Petitioner applied for licensure as a psychologist in Florida. She maintains that Michigan's determination that her education and training are equivalent to a doctorate level education should be sufficient to qualify her for Florida licensure as well. She admits, however, that she does not have a Ph.D. She also admits that there is "a huge difference" between the training in Argentina and the training in the United States. As part of her application process and in order to demonstrate to Respondent her qualifications for licensure in Florida, Petitioner submitted her education and training credentials to two foreign education credentialing services. One of those services determined that Petitioner has the equivalent of a Bachelor of Science degree in psychology from an institution in the United States that has regional academic accreditation, plus completion of four years of advanced theoretical and clinical training. The other service found that Petitioner has the equivalent of a bachelor's degree in psychology. The second credentialing service was unable to evaluate Petitioner's studies at the Argentina School of Psychotherapy for Graduates because that institution is not recognized as a degree-granting institution of higher education. Neither of those evaluations could verify that Petitioner possesses the equivalent of a doctorate degree as a result of her training and education in Argentina. In 1992, the University of Buenos Aires created a Ph.D. program in psychology; however, that program did not exist at the time that Petitioner attended that institution. The Argentina School of Psychotherapy for Graduates is not a degree granting institution and does not offer a doctorate program in psychology. At the time that Petitioner chose to attend the University of Buenos Aires and the Argentina School of Psychotherapy for Graduates, it was possible to obtain a Ph.D. in psychology in Argentina, but Petitioner chose not to pursue that course of study. Based upon Petitioner's advanced education beyond her bachelor's degree, she has the educational equivalent of a master's level degree without the thesis generally required to obtain such a degree.
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 as a psychologist either by endorsement or by examination. DONE and ENTERED this 7th day of June, 1996, at Tallahassee, Leon County, 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 7th day of June, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4675 Petitioner's proposed findings of fact numbered 1-3, 5, 7, 9, 11, 20- 22, 24, 28 and 46 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 6, 13-17, 19, 39, 41- 43, 47, and 50-54 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 8, 12, 18, 25-27, 34- 38, 40 and 49 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered 23, 29-33, 44, 45, and 48 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-10, 12 and 15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 11, 13 and 14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Frank P. Rainer, Esquire 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Virginia Daire, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Dr. Kay Howerton, Executive Director Agency for Health Care Administration Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this cause are as framed by an Administrative Complaint brought by the Petitioner against Respondent. Through this document it is charged that the Respondent attempted to obtain a license from the State of Florida pertaining to the practice of psychology and that he did so by actions of bribery or fraud, or fraudulent representation. See Section 498.009(2)(a), Florida Statutes.
Findings Of Fact Petitioner, State of Florida, Department of Professional Regulation, is charged with the responsibility of regulating the practice of those persons licensed as mental health counselors in the State of Florida. This authority is in pursuit of Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 490, Florida Statutes. Respondent, in all relevant time periods contemplated by this Administrative Complaint, was and is a licensed mental health counselor in the state of Florida. His license number is MH 0000294. On September 22, 1982, Petitioner received the Respondent's application to become a psychologist through exception. In turn, this was followed by an application for licensure based upon examination as received by the Department on October 4, 1982. Through the application process and in the interest of obtaining a license to practice psychology in Florida, Respondent indicated that he had received a doctorate (Psy D) in clinical psychology from the University of England at Oxford. It was further indicated by the Respondent that this school from which he obtained his doctorate was accredited by the European Accreditation Society. Further, Respondent indicated that he had received the degree in January 1981. One of the prerequisites for licensure in the State of Florida, as a psychologist, concerns the need to receive a doctorate in psychology from a psychology program which has been accredited by the American Psychological Association or, in the alternative, a degree which has been earned from an equivalent educational program. The University of England at Oxford not being an institution accredited by the American Psychological Association, it was necessary for the Respondent to demonstrate the equivalency of his academic achievement. The mechanical format which the Petitioner utilized in determining the question of equivalency was a form referred to as Psychology Program Analysis Form. A copy of this form as submitted by the Respondent in pursuit of his licensure as a psychologist may be found in the Petitioner's composite Exhibit 3 admitted into evidence. This item was received by the Department of Professional Regulation on September 16, 1983. The instructions for this form indicate that Part II shall be completed by the dean of the department from which the applicant had been awarded the doctoral degree. It is further indicated that this form should be mailed directly to the Board of Psychological Examiners of the State of Florida. In other words, it is the dean of the school who is responsible for the completion of the second portion of the form and for its submission to the State of Florida, directly. Furthermore, it was intended that the second part of the form, having been completed by the educator, should be signed by that person. Although an individual affiliated with the University of England at Oxford, one Anthony George Asquith, did sign the form dated December 1, 1982, Respondent is the person who completed the substance of this information provided to the Petitioner in Part II. That being so, Respondent acted contrary to the instructions given by the licensing agency and defeated the purpose related to having independent program assessment and verification offered by the officials within the University of England at Oxford. More importantly, for reasons as discussed subsequently, Respondent submitted this information in furtherance of his fraudulent attempt to gain a license to practice psychology in Florida. Among other misleading comments set out in the second part of the Psychology Program Analysis Form is the claim that the program at the University of England at Oxford is ". . . organized in a graded sequence of study designed by the psychology faculty responsible for the program." This program was not organized. In fact, there was no program. Instead, the University of England at Oxford was an organization having as its purpose the provision of phony degrees for those persons who had money to spend in obtaining bogus academic credentials. The less than genuine nature of the education allegedly provided by the University of England at Oxford was a fact which Respondent could easily discern. Consequently, his claim that he had received a doctorate from the University of England at Oxford, as an aid to getting a license to practice psychology in Florida, is patent fraud. Respondent, in furtherance of this fraudulent attempt, also submitted a document referred to as a transcript of grades for courses taken while a student at the University of England at Oxford. A copy of this transcript may be found in the Petitioner's composite Exhibit 3. Respondent was not involved in the course work depicted as being achieved while pursuing his studies at the University of England at Oxford. In actuality, Respondent did not pursue any courses at the University of England at Oxford. Respondent's involvement with the organization known as the University of England at Oxford began when he determined that he wished to obtain a doctorate degree in psychology without pursuing traditional course work. To this end, he wrote to the University of England at Oxford and received a catalog, a copy of which may be found as Petitioner's Exhibit 4 admitted into evidence. Respondent provided that organization with an enrollment fee. He also provided them with what the Respondent describes as a doctoral thesis. This doctoral thesis was not defended before the faculty at the University of England at Oxford. Indeed, the catalog for participation in the program offered by the University of England at Oxford did not require submission of a thesis to obtain a doctoral degree. All that was mandated was sufficient money to satisfy those persons within the University of England at Oxford that sufficient money had been paid to obtain the so-called doctorate degree. A copy of the alleged thesis may be found as Respondent's Exhibit 3 submitted into evidence. Although Respondent attempts to defend his actions in submitting his application for licensure as a psychologist based upon his argument that in his initial activities with the University of England at Oxford he had no reason to believe that the organization was less than genuine, this explanation is not credited. The facts demonstrate that from the inception, Respondent should have realized that the University of England at Oxford was not a legitimate academic institution and his utilization of the claimed degree from that organization constituted ill-gotten gains which he parlayed into an attempt to defraud the State of Florida in pursuit of licensure and, ultimately, the public who might be subjected to his practice as a psychologist. Dr. John Bear, an expert in assessing the bona fides related to non- traditional educational institutions, gave testimony at the final hearing. His familiarity with the University of England at Oxford goes so far as arriving at the door of the organization, only to find that the business being conducted there was that of a place where mail was received. In London, England, at the address given for the University of England at Oxford, he found a man seated behind a desk and when he asked of this person whether this location was the University of England at Oxford, the man replied, "We receive their mail here." There was no campus. There was no faculty. The facility was only a mail- receiving service address. In assessing Petitioner's Exhibit 4, Dr. Bear did not find the catalog to depict a legitimate school. His opinion concerning the legitimacy of the University of England at Oxford is accepted when he describes the school as clearly not being legitimate. Some of the observations which he had which lead him to those conclusions, and which are accepted as factually correct, concern the lack of a telephone number, the fact that the organization calls itself the University of England at Oxford, when it is located in London and the university town of Oxford is some distance away, and the fact that the literature within the catalog indicates that it is not necessary to do anything to receive a degree other than submit a resume. The lack of necessity to provide a thesis is an item which Dr. Bear feels that no legitimate doctoral program would allow for. Dr. Bear was struck by the fact that the only things necessary were submission of the resume and payment, and that the resume need only be brief and to the point. He indicates that the catalog points out that the person obtaining the so-called degree need not be concerned with meeting traditional standards of experience and that any resume or thesis provided would be favorably regarded. He points out that the fact that the catalog indicated that a 20 percent discount would be provided for those persons wishing to earn two or more degrees at once. This pertains to a 20 percent discount on the second degree and any degree thereafter. This, in Dr. Bear's thinking, is unheard of in legitimate education. The method of payment for the degree through money order, as opposed to checks, and the fact that the money orders would be made out to ISP is found to be irregular. Dr. Bear is struck by the fact that the catalog states that the degrees would be backdated to any year the applicant chooses, back to the year 1918. The year 1918 is the year indicated as being the founding year of the University of England at Oxford. Again, this backdating of a degree is unheard of in legitimate education, according to Dr. Bear. He points out that the degree can be received within six weeks, which seems inordinately short. He points out that no faculty is listed within the catalog. When he attempted to obtain a list of faculty from the University of England at Oxford, he received another catalog. His subsequent investigation revealed that there was no faculty, as mentioned before. He points out the fact that a fifty dollar charge is made for the receipt of transcripts from the University of England at Oxford. He found this to be unusual in that no courses are taken or grades received, and yet a transcript can be provided upon the payment of fee. In response to a question by Petitioner's counsel, Dr. Bear believes that the University of England at Oxford is a "phony-degree mill." He believes this to be so, given that the institution awards degrees without reason for doing anything other than paying money. There are no educational standards and there is no education being provided. Finally, Dr. Bear feels that any reasonably intelligent person could have perceived that the University of England at Oxford was not a legitimate educational institution. This insight includes the Respondent, and it is found that Respondent recognized or should have recognized that the University of England at Oxford was not legitimate. Other incidents which point out the scope of the fraud perpetrated by the Respondent in his attempt to gain licensure as a psychologist would include the submission to the Board of Psychology of the State of Florida a letter dated September 28, 1981, from Nelson Corcoran, the purported Dean of Students at the University of England at Oxford, directed to David A. Schriemer, who was a mental health program coordinator with the State of Florida, Department of Health and Rehabilitative Services. The correspondence, which the Respondent had knowledge of, indicates his attending classes at the University of England at Oxford, which he did not. The letter makes reference to the faculty at the University of England at Oxford, which Respondent had never met, nor had he met any students at the University of England at Oxford as the letter suggests. In the course of the hearing, Respondent alludes to a letter from the World Education Services, Inc., dated August 26, 1981, Respondent's Exhibit 1 admitted into evidence. This letter was obtained in Respondent's pursuit of an employment position which required doctoral level education. This correspondence was unrelated to the attempt at gaining licensure to practice psychology. The letter from World Education Services, Inc., indicates that the University of England at Oxford awards degrees equivalent to doctor's degrees in the United States, related to the field of psychology. The World Education Services, Inc., is an accrediting organization. If the Respondent was only conversant with the remarks of World Education Services, Inc., in their August 26, 1981, letter, a stronger argument might be made in his favor, although that argument would not overcome the clear import found within the catalog of the University of England at Oxford pointing out the unacceptability of that alternative form of education. Nonetheless, it was made abundantly clear to the Respondent on November 3, 1981, in correspondence from an official within the World Education Services, Inc., that it retracted its comments on the legitimacy of the doctoral program at the University of England at Oxford. A copy of that correspondence of November 3, 1981, is found as Respondent's Exhibit 2 admitted into evidence. Again, this is correspondence related to Respondent's employment situation, not in pursuit of the attempt to gain licensure as a psychologists. This latter correspondence from World Education Services, Inc., was never submitted in his attempts to gain employment at a doctoral level. This withholding of the information from his employer at that time, the State of Florida, Department of Corrections, was further evidence of the fact that the Respondent recognized the problems associated with the degree that he had obtained from the organization known as the University of England at Oxford. The November 3, 1981, correspondence clearly withdraws any statement of accreditation when it says that the doctor of psychology degree which the Respondent obtained in 1981 would not be considered in England or the United States for employment or academic purposes and that Respondent had not completed education in England which was equivalent to a doctoral degree in the United States.
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 is whether Petitioner Walton County School Board (Petitioner) had good cause to reject Superintendent Jack Bludworth's (Superintendent) nomination of Respondent Linda Rushing (Respondent) for an annual administrative contract to fill the position of Exceptional Student Education (ESE) Coordinator.
Findings Of Fact Respondent holds Florida teaching certificate number 595971. She is certified in elementary education, emotionally handicapped education, and school guidance. She received a Bachelor of Science degree in emotionally handicapped education from the University of West Florida and a Master of Education degree in mental health counseling from Troy State University. She is currently seeking a Doctorate of Education in Alternative Education/At Risk Education from the University of West Florida. Respondent has six years of classroom experience as a teacher of emotionally handicapped students. She served as a guidance counselor for three years, two of which included working with ESE students. Respondent served as Petitioner's ESE Coordinator from March 16, 1998, to June 30, 1999. Prior to that time, she had no experience working as an administrator. As ESE Coordinator, Respondent was responsible for the administration of Walton County School District's (the district) special education department. Her duties included the direct supervision of employees assigned to that department. She was required to work with teachers and special education professionals throughout the district to identify ESE students who were eligible for services pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Additionally, she was responsible for ensuring that the district provided each ESE student with an appropriate education under an individual education plan (IEP) as required by IDEA and Section 504. The failure to follow state and federal regulations to properly identify and educate ESE students could result in significant financial repercussions for the district. Therefore, Respondent was required to interact with the Superintendent and Petitioner to make sure that the district complied with these regulations. The Superintendent took office in November 1996. Jerry Jones, Donnie Richardson, and Darrell Barnhill were elected to the five-member school board in November 1998. Susan Adkinson and Mark Davis retained their positions as school board members, having been elected in a previous election. After the November 1998 election, Petitioner elected Mr. Jones to serve as its chairman. Ms. Bebe Whitehead was in charge of the ESE department for several years until she retired early in 1998. Upon her retirement, Ms. Cindy Jeselnik, formerly the ESE staffing specialist for secondary students, became the interim ESE director. Ms. Jeselnik is certified by the Department of Education (DOE) in the areas of health education, school guidance, and administration and supervision. She has a Master of Education degree in administration and supervision. Ms. Jeselnik has worked for the district for approximately 13 years. After Ms. Whitehead's retirement, Ms. Nancy Holder continued to work in the ESE department, as the district's only school psychologist. Ms. Holder had served in that position for approximately 16 years. Her prior work experience includes 11 years as a teacher of emotionally handicapped students in Holmes County. She has a bachelor's degree in intellectual disabilities, a master's degree in school psychology, a specialist degree in educational leadership, and a specialist degree in curriculum instruction. She needs to take three classes and write a dissertation in order to receive a doctorate degree. As a certified school psychologist, Ms. Holder was employed under an administrative salary schedule, earning approximately $50,000 annually. When Ms. Whitehead retired, Ms. Cecilia Bishop Jones continued to serve as the district's ESE Pre-Kindergarten Coordinator. Her duties included working as the Child Find specialist and providing direct instruction to pre-kindergarten ESE students as a speech teacher. She played an integral role in the referral process to determine the eligibility of pre- kindergarten students for participation in the ESE program. At times she signed IEPs as the speech pathologist. She had served in that capacity since 1994, when James King, the district's superintendent from June 27, 1994, through November 18, 1996, nominated her to fill an approved position as a speech/language pathologist. 1/ Her prior work experience included working for the district as an elementary school teacher. Ms. Jones has a Bachelor of Arts degree in elementary and early childhood education. She is certified to teach in those areas. After her transfer to the ESE department, she began taking classes towards an undergraduate degree in speech pathology. In order to be certified as a speech pathologist, one needs to have a master's level degree in that area. A target selection committee interviewed applicants to fill the position vacated by Ms. Whitehead. This committee was composed of education professionals from outside the area. The committee recommended Ms. Jeselnik, Ms. Holder, and Respondent as the number one, number two, and number three candidates, respectively. Presented with these three names, the Superintendent chose to nominate Respondent for ESE Coordinator. Petitioner approved the Superintendent's nomination on March 16, 1998. Ms. Jeselnik was visibly upset when Respondent was hired as ESE Coordinator. For the remainder of the 1997/1998 school year, Ms. Jeselnik avoided contact with Respondent whenever possible. On May 27, 1998, Respondent performed Ms. Jeselnik's "annual evaluation." Ms. Jeselnik complained to the Superintendent that it was the lowest evaluation she had ever received. In August 1998, the Superintendent granted Ms. Jeselnik's request for a lateral transfer to the position of Student Services Coordinator. In her new position as the head of the student services department, Ms. Jeselnik was no longer under Respondent's supervision. When Respondent became ESE Coordinator, she became concerned that Ms. Jones was functioning as an uncertified speech pathologist in violation of state and federal regulations. Due to that concern, Respondent informed Ms. Jones that she would no longer serve as a speech teacher/therapist. Respondent immediately restricted Ms. Jones' duties to assisting with referrals to the ESE pre-kindergarten program. For the duration of the 1997/1998 school year, Ms. Jones worked in the ESE department as a Child Find specialist. Respondent performed an "annual evaluation" of Ms. Jones in June 1998. Shortly thereafter, Ms. Jones requested a lateral transfer to the student services department. The Superintendent granted this request in August 1998. Ms. Jones' new title became Resource Teacher for Early Childhood, Child Find, and Home Education. Primarily she continued to serve as a Child Find specialist. There was no established position for a Child Find specialist in the ESE department or the student services department. Therefore, Ms. Jones' transfer created some confusion concerning the person responsible for performing her evaluations. On May 27, 1998, Respondent sent the Superintendent a memorandum requesting that he place a revised school psychologist position description, together with terms of employment, on Petitioner's agenda for the upcoming meeting. The position description required the school psychologist to have a current Rank II teaching certificate and to be a specialist in the field. The position description required the school psychologist to be responsible for all psychological testing in grades pre-kindergarten through 12, including all testing of ESE students. The proposed terms of employment that Respondent submitted with the revised position description provided for a 12-month annual contract. The proposed salary was based on a range from $33,000 to $36,000, depending on the school psychologist's degree level and expertise in the field. A school psychologist with a master's degree would earn a base salary of $33,000. The salary range was not on a published salary schedule for instructional, administrative, or non- instructional personnel. Petitioner considered the Superintendent's recommendation and approved the revised position description and terms of employment on June 9, 1998. Petitioner also authorized the Superintendent to advertise for a school psychologist to fill the position. The person hired to fill the position would have provided the district with a second school psychologist because Ms. Holder continued to hold her position in that capacity. On or about July 15, 1998, Ann Farrior applied for the position of school psychologist as advertised pursuant to the revised position description. Ms. Farrior received her master's degree in school psychology in 1990. However, she did not complete a school psychology internship because one was not required for certification in Florida at that time. Ms. Farrior worked exclusively in private clinical practice until Petitioner hired her on an as-needed basis in 1996/1997. Under the 1996/1997 contract with Petitioner, Ms. Farrior was a member of the child study team and acted as a referral agent for ESE students. On July 20, 1998, Respondent and Ms. Holder interviewed Ms. Farrior for the school psychologist position. Ms. Farrior revealed that she was not certified in school psychology because she lacked 6 required courses and an internship. She also revealed that it would take approximately two years for her to achieve certification. Ms. Farrior stated that she held a two-year temporary certificate to teach in the subject area of psychology from July 1, 1996, through June 30, 1998. The interview team understood that Ms. Farrior was eligible to renew this two-year temporary certificate upon her employment with the district. The interview team noted that they needed to check with DOE regarding Ms. Farrior's credentials. After the interview, Respondent and Ms. Holder agreed that they would recommend Ms. Farrior for the school psychologist position. They chose Ms. Farrior over two other applicants. One of those candidates was certified in school psychology but had no work experience in the field. Respondent offered and Ms. Farrior accepted the job with a $33,000 annual salary. On August 4, 1998, the Superintendent nominated Ms. Farrior for the new school psychologist position. The Superintendent believed Ms. Farrior was certified or eligible for certification when he made this nomination. Petitioner approved her employment effective retroactively to July 28, 1998. On July 1, 1998, Zane Sunday became the district's personnel director. 2/ Soon after Ms. Farrior's employment, she requested that Mr. Sunday assist her in renewing her temporary certificate in psychology. 3/ Ms. Farrior wrote several memos to the district's personnel department regarding the request for issuance of her new temporary certificate from DOE. However, DOE never received such a request. Shortly after assuming the position of ESE Coordinator, Respondent entered into negotiations with Vantage Healthcare Corporation, d/b/a Destin Health Care and Rehabilitation Center (DHC) for the provision of contract services, including speech/language pathology services and supervision, physical therapist services, and occupational therapist services. The three written contracts state that the district shall pay $55.00 dollars per hour for all services provided. The services for a speech/language pathologist included "supervision of personnel, for speech therapy and related services which include the writing of IEP's [sic], attending staffings, and IEP review at assigned school." The services for a physical therapist and an occupational therapist included "administration and coordination of services, on-site services rendered, and education of personnel and families." All three contracts state that the district will reimburse DHC for mileage at .29 per mile. During the negotiation of the contracts, Respondent reached a separate oral agreement with DHC that, in addition to the services specified in the contracts, the $55.00 per hour rate would include all time spent by the therapists in traveling from school to school. The written contracts did not express this separate oral agreement. Respondent presented the written contracts to the Superintendent and Petitioner's attorney for their approval. She did not explain to them that the $55.00 per hour charge included the travel time of the DHC service providers. On the Superintendent's recommendation, Petitioner approved the three contracts on August 11, 1998. The contracts were effective August 1, 1998, through June 30, 1999. Beginning in August 1998, DHC regularly submitted invoices to the district for payment that, without Petitioner's knowledge, included charges at the rate of $55.00 per hour for the driving time of DHC service providers. Respondent had the responsibility to review the invoices to ensure payment according to the contracts prior to submitting them to the finance department. On or about August 10, 1998, Respondent gave Mr. Sunday a personnel action form for Ms. Farrior. The form related to a "[n]ew" position needed due Board action on June 9, 1998. Ms. Farrior's position description and terms of employment were attached to the form. The terms of employment stated that the employment contract was for 12 months with a base salary of $33,000 for a master's level degree. Mr. Sunday informed Respondent that the position description did not allow for a negotiated salary and that Petitioner could not have approved it as such. Mr. Sunday also said that Ms. Farrior was not entitled to an incremental increase in pay based on her experience because she was not a full-time employee when she worked for the district in 1996/1997. Ms. Farrior eventually agreed to work for $23,000 under a published instructional salary schedule. In September 1998, Ms. Holder became the ESE department's Program Specialist/Staffing Specialist. The change in her job description was due to Ms. Jeselnik's transfer to the student services department. In her new capacity, Ms. Holder no longer functioned as a school psychologist. Thereafter, Ms. Farrior was responsible for all testing and diagnostic services in the district. Ms. Frieda White-Crenshaw was a DHC speech pathologist. Pursuant to one of the contracts between Petitioner and DHC, Ms. White-Crenshaw's duties included supervising the district's speech therapists. In the fall of 1998, Ms. Jones was required to work with Ms. White-Crenshaw to determine whether pre-kindergarten students required additional referral services. Ms. Jones met with Ms. White-Crenshaw and parents in Child Find screenings and ESE eligibility meetings. Respondent was present during some of these meetings; she did not approve of Ms. Jones' attitude toward Ms. White-Crenshaw in these meetings. On October 6, 1998, Mr. Sunday prepared a list of employees who were teaching or working in a field for which they were not certified. He compiled this list based on information furnished by school principals, supervisors, and department heads. Respondent did not report that Ms. Farrior was working as an out-of-field school psychologist. Mr. Sunday personally added Ms. Farrior's name to the list. Neither he nor Respondent contacted DOE to check Ms. Farrior's certification status. One week later, Petitioner approved the list based on the Superintendent's recommendation. Petitioner was unaware that Ms. Farrior was functioning as an uncertified, out-of-field school psychologist. Jim McCall has been the district's Finance Officer for 15 or 16 years. He is responsible for the district's financial accounts, including budget and payroll. He is also responsible for paying invoices as Director of Purchasing. Occasionally, school board members request Mr. McCall to answer questions regarding the district's financial accounts. Petitioner is required to approve monthly voucher reports and the annual financial report. The Superintendent and Petitioner's chairman co-sign checks issued by the district. Usually a signature machine imprints their signatures on each check. The Superintendent has always followed this practice. When Mr. Jones first became Petitioner's chairman, he elected to sign each voucher personally. He also reviewed each invoice or statement before signing his name to a check in payment of a bill. On November 17, 1998, Mr. McCall sent Respondent a memorandum requesting copies of all ESE telephone and fax logs for the period beginning August 1, 1998 through November 17, 1998. Mr. McCall made the request on behalf of a school board member. Subsequently, Mr. McCall informed Respondent that the school board member making the request was Mr. Jones. Mr. McCall also informed Respondent that Mr. Jones had not requested similar records from any other department. However, it was a routine practice for Mr. McCall to request administrators to furnish other types of records in order to satisfy concerns of individual school board members. On November 18, 1998, the speech therapist at Butler Elementary School (BES) went on emergency maternity leave. Respondent and BES's principal could not locate a substitute speech therapist. In order for there to be no interruption of speech therapy services at BES, Respondent and DHC entered into a oral agreement for DHC to provide those services for $440.00 per day, inclusive of all expenses. On November 23, 1998, Respondent wrote a memorandum to Mr. McCall refusing to provide the ESE department's telephone and fax logs to Mr. Jones unless Petitioner's attorney or Petitioner, as a collective body, directed her to comply with the request. Respondent quoted Petitioner's policy regarding the lack of authority for school board members to act individually, including as a district administrator. Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. On November 23, 1998, Respondent sent the Superintendent a memorandum requesting that he place a proposed contract with DHC on the agenda for Petitioner's next meeting. The purpose of the contract was to fill a vacancy at West DeFuniak Springs Elementary School (WDSE) due to the sudden resignation of the speech/language pathologist. The proposed contract stated that the district would pay DHC $300.00 per day for all services provided by DHC's certified speech pathologist. The contract did not include any reference regarding the district's obligation to pay mileage expense. The contract stated that it was effective beginning October 5, 1998, through May 28, 1999. On November 24, 1998, Respondent wrote an addendum to her prior memorandum regarding Mr. Jones' request for the ESE department's telephone and fax logs. This document states: On the date of November 23-24, 1998 I communicated with Mr. Mike Dill, Regional Director of the Federal Bureau of Investigation regarding your request for 'a copy of all telephone and fax logs for the time period of August 1st - November 17th, 1998.' I was directed by Special Agent Dill not to release these records. Therefore, I will comply with Mr. Dill's recommendation. In addition, independent legal counsel will be contacted for representation at this time, as well. (emphasis in original) Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission. In a subsequent public meeting, Mr. Jones questioned Respondent about her November 24, 1998, memorandum. She responded orally, stating that she had talked to a Federal Bureau of Investigation (FBI) agent. According to Respondent, the FBI agent had directed her not to release the records sought by Mr. Jones. On November 30, 1998, DHC's speech pathologist provided one day of speech therapy to the students at BES. These services were provided under the oral contract between Respondent and DHC. On or about December 7, 1998, the speech therapist on emergency maternity leave from BES was granted additional maternity leave. Her maternity leave was extended through February 15, 1999. DHC's speech pathologist continued to provide speech therapy at BES under the oral contract. Respondent knew that DOE staff would perform an audit to determine the district's compliance with state and federal regulations under IDEA and Section 504 during the 1997/1998 school year. The audit was scheduled for sometime in April 1999. Respondent was concerned because many ESE records for the prior year were deficient, showing that the district had not followed proper procedures in identifying and educating ESE students. In an effort to prepare for DOE's audit, Respondent requested technical support from a DOE pre-audit team. On December 8, 1998, Judith Smith and Cathy Bishop, DOE staff members, performed the pre-audit. During their one- day visit, they examined the records of six ESE students at Freeport High School and two ESE students at Walton Middle School. On or about December 8, 1998, school board member Darrell Barnhill signed a memorandum regarding a proposed amendment to the proposed contract with DHC for speech pathologist services at WDSE. In pertinent part, Mr. Barnhill's proposed amendment inserted additional language to clarify that the $300.00 per day charge included full payment for mileage expenses and any other incidental expenses associated with DHC's provision of the services. By way of background, Mr. Barnhill noted that an emergency need for speech therapy services had existed at WDSE since October 5, 1998. He concluded that consideration of the contract was presented to Petitioner in an untimely fashion. Sometime thereafter, Petitioner approved this contract as revised. On December 14, 1998, Respondent sent the Superintendent, Mr. Jones, and FBI agent Mike Dill, a memorandum regarding the request for her to produce copies of the ESE department's telephone and fax logs. For the first time, Respondent explained that she did not comply with the request immediately because she was attempting to seek expert advice concerning the confidentiality of information related to ESE students and their families. The memo states in pertinent part: During this time period, I was misinformed through a third party that FBI agent Mike Dill had issued a directive to not release the requested logs - I acted on this information. I was informed on December 11, 1998, by Special Agent Dill that he had never issued those instructions and that, in fact, it was not a FBI matter. In the memorandum, Respondent agreed to produce the records on December 16, 1998, after redacting all confidential information. 4/ She also apologized to Agent Dill and the members of the school board for any inconvenience or embarrassment that she may have caused. Respondent made this apology after Petitioner's attorney contacted the FBI and determined that Agent Dill had never communicated with Respondent. On December 15, 1998, Mr. Jones made a walk-in visit to DOE's teacher certification office in Tallahassee, Florida. The purpose of the visit was to inquire about Ms. Farrior's certification status. By letter dated December 17, 1998, Cathy Bishop, DOE's Director of Program Administration and Evaluation, provided Respondent with a report relative to the December 8, 1998, pre- audit of ESE records. The letter listed specific deficiencies in the student records reviewed by the pre-audit team. The deficiencies noted were not limited to those created during the 1997/1998 school year. The report discussed all compliance issues observed in the records, including violations of state and federal regulations occurring in the fall of 1998 after Respondent became ESE Coordinator. Sometime during the December 1998 school holidays, Mr. and Ms. Jones met in Marianna, Florida with Gregg Centers, a member of the Auditor General's staff. The purpose of the visit was to make inquiries concerning certain DHC invoices. Mr. Jones had obtained the invoices in his capacity as a school board member. On a subsequent trip to Tallahassee, Florida, Mr. and Mrs. Jones met with Wayne Blanton regarding these same invoices. Mr. Blanton is associated with the Florida School Board Association in some capacity. During the December 1998 school holidays, or soon thereafter, Mr. Jones requested Mr. Sunday to call DOE's certification office regarding Ms. Farrior's certification. Mr. Sunday's subsequent call to DOE revealed that Ms. Farrior could not perform intelligence testing of ESE students because she was not certified as a school psychologist. By letter dated December 28, 1998, David Mosrie, Director of DOE's Division of Public Schools and Community Education, advised the Superintendent that his staff had observed significant deficiencies in IEPs developed during the 1997/1998 school year. He noted that the district had corrected some of the deficiencies. He also noted that the district's staff had been proactive in addressing concerns about violations of IDEA. Nevertheless, Mr. Mosrie specifically directed the district to "take action to conduct IEP meetings to correct any IEPs that do not contain present level statements, goals, objectives, and evaluation procedures, as soon as possible." In a memorandum dated January 4, 1999, Respondent requested the Superintendent to place a proposed contract with DHC on the agenda for Petitioner's next meeting. The proposed contract stated that DHC agreed to provide substitute speech/language therapy to the students at BES for $440.00 per day for all services, including all travel time between schools and mileage. The proposed contract stated that it was effective November 30, 1998, through February 15, 1999. Respondent's delay in presenting this proposed contract to Petitioner was caused in part by difficulty in negotiating the contract during the reallocation of corporate responsibilities between DHC and a new corporation, Beverly Health and Rehabilitation Services, Inc. On or about January 5, 1999, Respondent contacted the DOE certification office by telephone to inquire about Ms. Farrior's certification status. She learned that according to DOE's records, Ms. Farrior needed to complete specialization requirements. As ESE Coordinator, Respondent's responsibilities required her to review and verify the accuracy of invoices sent to the district by vendors who provided goods and services to the ESE department. She was expected to review DHC invoices to determine whether the charges were consistent with services provided under contracts approved by Petitioner. Respondent had a certain amount of funds in her budget for discretionary expenses. She had sufficient funds to send someone to represent the district at an autism conference. Respondent elected to send Ms. White-Crenshaw to the conference. As stated above, Ms. White-Crenshaw was a DHC speech pathologist who provided supervisory speech and language services to ESE students in the district. DHC sent the district the following four invoices: (a) an invoice dated November 30, 1998, in the amount of $440.00, for Barbara Carter's services on November 30, 1998, at BES, approved by Respondent on December 7, 1999; (b) an invoice dated October 6, 1998, in the amount of $6,454.29, for Frieda White-Crenshaw's services as a supervisor during the month of September 1998, approved by Respondent on November 20, 1998; (c) an invoice dated November 3, 1998, in the amount of $8,845.66, for Frieda White-Crenshaw's services as a supervisor during the month of October 1998, approved by Respondent for payment in the amount of $8,680.66; and (d) an invoice dated December 3, 1998, in the amount of $5,596.83, for Frieda White- Crenshaw's services as a supervisor during the month of November 1998, approved by Respondent on December 7, 1998. Respondent sent these invoices, which total $21,173.78, to Mr. McCall's office for payment on or about December 9, 1998. Mr. Jones reviewed these invoices and refused to pay them. He listed the dollar amounts that could not be paid for each invoice pursuant to the written contracts. Mr. Jones requested that Mr. McCall verify the charges in relation to the DHC contracts. Mr. McCall subsequently compared the invoices to the DHC contracts and the "outsourcing therapy labor logs" maintained by DHC staff. At the request of Mr. Jones, Mr. McCall arranged a meeting with the school board attorney; Mr. Jones; the Superintendent, and Respondent. Mr. Jones refused Respondent's request to invite DHC to the meeting. Based on advice of counsel during the meeting, Mr. McCall concluded that the district had to reduce payment to DHC for the invoices in question by $14,135.00. During the meeting, Respondent was advised that the district would not honor future DHC invoices to the extent that the invoices included charges at $55.00 per hour for the service providers' school-to-school travel time because travel time was not covered under the DHC contracts. In fact, future DHC invoices would be reduced for any service provider's time not reflected in sign-in/sign-out logs maintained at the individual schools or sites where the services were provided. Respondent agreed to inform DHC of the reasons for the reductions. At the request of Mr. Jones, she also agreed to inform DHC that its staff would have to sign-in and sign-out on logs maintained by the individual schools or sites where services were provided. Respondent created a form for DHC staff to sign because not all schools maintained sign-in/sign-out logs. These types of logs are usually kept as "site-based management decision," and not pursuant to Petitioner's policies. Mr. Jones did not request that any other vendor sign a site-based log. This caused Respondent some concern because one other ESE contract vendor did not have to keep on-site time logs. In a memorandum dated January 7, 1999, Mr. McCall directed his staff to pay $7,038.78 for services rendered by DHC staff as reflected on the four DHC invoices referenced above. According to Mr. McCall, the amount paid to DHC was reduced for the following reasons: (a) there was no contract between Petitioner and DHC for Barbara Carter to provide services at BES during the month of November 1998; (b) contracts between Petitioner and DHC that were in place did not authorize payment for school-to-school travel time of DHC employees; and (c) contracts between Petitioner and DHC did not cover expenses incurred by DHC staff for attending an autism conference. Despite this reduction in payment, DHC continued to provide uninterrupted services pursuant to the written contracts. During a school board meeting on January 12, 1999, Petitioner rejected the Superintendent's recommendation to revise the job description for a school psychologist for ten months plus two additional months (10+2) on an instructional salary schedule. Petitioner approved the Superintendent's request to advertise for a full-time ESE teacher in the Options Alternative School (Options), the district's second/last chance program. Additionally, Petitioner discussed the following matters without taking any action: (a) Mr. Jones' concern that Ms. Farrior was not a certified school psychologist and therefore could not administer intelligence tests to ESE students; (b) the approval and payment of DHC invoices; and (c) the proposed DHC contract for services at BES. During the school board meeting on January 12, 1999, Respondent stated that Ms. Farrior only lacked one course, for which she was currently enrolled, in order to be eligible for certification as a school psychologist. This information was incorrect. Ms. Farrior took no course work toward fulfilling her certification requirements during the first semester of the 1998/1999 school year. The second semester Ms. Farrior took two of the courses required for certification. In January 1999, she needed to complete those two courses, take one other course, and complete an internship. At that time, Ms. Farrior had not applied for enrollment in an accredited school psychology internship program or registered for the final academic course. In January 1999, Ms. Farrior also needed to send transcripts of courses that she had taken in prior years at Troy State University to the DOE certification office. Additionally, DOE did not have a record of some of Ms. Farrior's required examination scores. Some of the scores were missing because Mr. Sunday's office had not forwarded them to DOE. One other score was missing because Ms. Farrior had not taken the exam. Finally, Respondent misled Petitioner by stating that Ms. Farrior could be employed as "out-of-field teacher" even though she lacked certification as a school psychologist. While Petitioner's rules authorize teachers, under appropriate circumstances, to teach classes outside the areas for which they are certified, DOE rules do not permit one who is certified only to teach psychology to administer intelligence tests as an "out- of-field" school psychologist. During a January 19, 1999, school board meeting, Mr. Jones expressed his concern regarding the backlog of students requiring psychological testing. He also discussed Ms. Farrior's inability to administer intelligence tests under DOE rules. Petitioner subsequently voted to approve a contract with Florida State University's (FSU) Multidisciplinary Center for the provision of services, including intelligence testing and re-evaluations of ESE students formerly tested by Ms. Farrior. The Superintendent approved of contracting with FSU to test the ESE students. He was aware of one complaint from one parent about the backlog in testing students. However, the Superintendent was not of the opinion that the testing backlog was due to Ms. Farrior's not being certified as a school psychologist. He felt that it was a problem that Respondent inherited when she became ESE Coordinator. The Superintendent did not believe the district could eliminate the backlog until it hired a second school psychologist to fill the position formerly held by Ms. Holder. Respondent was not in favor of contracting with FSU. She wanted to allow Ms. Farrior to continue administering all tests except intelligence tests. She was willing to perform Ms. Holder's duties so that Ms. Holder could perform any re- evaluations of ESE students that were necessary. Under that arrangement, Ms. Holder eventually re-tested 24 ESE students. The test results from Ms. Holder's re-evaluations were not significantly different from the intelligence testing performed by Ms. Farrior. There were no changes in the placement of any ESE students after the re-evaluations were performed. The re-testing of the students did not result in any additional cost to the district, but it increased the workload of the ESE department. By letter dated January 20, 1999, Shan Goff, Chief of DOE's Bureau of Instructional Support and Community Services, advised the Superintendent of the following: (a) only a certified school psychologist could administer intelligence tests to ESE students; (b) an uncertified examiner could not administer the test even if a licensed individual "signed-off" on the test as supervisor; and (c) under certain conditions, an intern in an approved course of study could perform intelligence testing provided the testing was performed under the supervision of a qualified individual. Ms. Goff's January 20, 1999, letter set forth the following specific actions that the district needed to take in order to be in compliance with IDEA: Re-test all students whose tests of intelligence were administered by the non- certified individual and prepare and "addendum" or a comprehensive psychoeducational report. Please note that school psychology practices may require that a different test be used for re-testing purposes than the instrument originally administered. Determination about what tests should be administered will need to be made on an individual student basis. Make a determination about parental involvement. We believe it advisable to notify parents of the situation and the purpose of the re-test. In instances where the original testing took place some time ago, you may want to secure parental consent. Review the results of the re-testing to determine whether there are significant changes that would impact on the students' eligibility for services and/or the content of the students' IEPs. In each instance where eligibility for services and/or content of the students' eligibility or the content of the IEP would be affected, conduct a new eligibility staffing and/or IEP meeting. Please note that all state and federal requirements relative to the conduct of staffings and IEP meetings must be adhered to. Determine whether any students were counted for FTE purposes in October and/or the December 1 child count who were subsequently determined to be ineligible for exceptional student education services. Adjust these counts as necessary. In those instances where a child tested under these conditions has transferred from Walton County School Districts, provide follow-up with the receiving school district to provide guidance in corrective actions necessary for that district to be in compliance. All District School Superintendents received a letter dated January 26, 1999, from Mr. Mosrie, Ms. Goff's superior. Mr. Mosrie's letter reviewed the rules and regulations regarding qualified examiners of intelligence tests. By memo dated January 26, 1999, Greg Centers, advised the Superintendent about the Auditor General's questions concerning Ms. Farrior's employment based on a pre-audit review of the district's records. Mr. Centers noted that Ms. Farrior's temporary teaching certificate expired on June 30, 1998, and had not been renewed. According to Mr. Centers, the district's records did not indicate that Ms. Farrior was otherwise qualified for the school psychologist position. The Superintendent signed this memo on January 29, 1999, acknowledging that the Auditor General's understanding regarding Ms. Farrior's employment status was correct. By letter dated January 29, 1999, Charles Lester, Auditor General, requested the Superintendent to submit a written explanation within 30 days concerning the findings of preliminary audit findings. Attached to the letter was a finding that the district had hired a school psychologist when the district's records did not indicate the basis upon which the employee was determined to be qualified for that position. The Auditor General requested that the district provide an explanation or take corrective action to provide a certified school psychologist for administering tests and assessing placement for ESE students. After receiving the Auditor General's letter, the Superintendent met with Respondent and Ms. Farrior. During the meeting, he asked Ms. Farrior to resign. She refused to comply with his request. Terrica Carlock became the new ESE classroom teacher at Options in January 1999. The district's ESE department was responsible for evaluating and writing new IEPs for ten or twelve of Options' students who needed to be placed in the new classroom on a resource or special assignment basis. Prior to that time, ESE students at Options had been mainstreamed and provided ESE services only on a consultation basis. The IEP meetings at Options needed to be scheduled immediately in order to complete the IEPs before the state conducted a Full Time Equivalent (FTE) count in the first week of February. The district's state funding depends in part on the FTE count. In order to expedite the process, Respondent sent the necessary IEP forms to the principal at Options, on January 25, 1999. She directed the principal to schedule IEP meetings and to notify parents about the meetings. Respondent did not give the principal specific directions about the IDEA notice procedure. The principal of Options sent notices to parents about the IEP meetings by giving the notice forms to the ESE students. Ms. Carlock advised the principal that IDEA required the school to give parents a second notice to determine whether parents wished to participate in the IEP meetings or waive that right. On January 27, 1999, Ms. Carlock assisted the principal in making those calls to parents who did not sign and return the written notice. Very few parents were able to attend the IEP meetings on such short notice. The IEP meetings at Options were scheduled for January 27-29, 1999. Respondent intended to serve as the Local Education Agency (LEA) representative at the meetings. However, she was unable to attend several of the IEP meetings because of a scheduling conflict. Respondent told Ms. Carlock to continue with these meetings despite the absence of an LEA representative. Respondent told Ms. Carlock to complete the LEA's IEP paperwork even though Ms. Carlock had not been trained for that responsibility. As to the IEP meetings that Respondent was able to attend, she occasionally left the meetings to answer phone calls, directing Ms. Carlock to continue the meetings in her absence. By memorandum dated January 29, 1999, Ms. Carlock advised Respondent that she did not approve of the way the Options' IEPs were conducted. Specifically, Ms. Carlock complained that parents did not have sufficient notice of the meetings. Ms. Carlock did not feel comfortable conducting the meeting without an LEA representative as required by IDEA. She did not think she was qualified to complete the IEP paperwork, which according to Respondent was the responsibility of the LEA representative. Ms. Carlock sent a copy of her memorandum to the Superintendent and Petitioner's members. By memorandum dated January 30, 1999, Respondent attempted to explain to the Superintendent why she had not been present at the Options' IEP meetings. She accused Ms. Carlock of providing the Superintendent with erroneous information. Respondent criticized Ms. Carlock for complaining to the Superintendent and Petitioner without following the proper grievance procedure. Respondent requested that the Superintendent reprimand Ms. Carlock for making misrepresentations of fact. The Superintendent subsequently advised Ms. Carlock to stay within the chain of command when filing complaints. By letter dated February 2, 1999, Patricia Howard, DOE's consultant for School Psychology, advised the Superintendent that he had two options for providing intellectual evaluations to ESE students. First, he could employ a full-time, certified psychologist or contract with a privately licensed psychologist/school psychologist to administer and interpret all tests, including intellectual, achievement, process, emotional, and adaptive behavior. Second, he could employ a part-time, certified school psychologist or privately licensed psychologist/school psychologist to administer and interpret all tests of intelligence. In the latter case, the intellectual test results could be merged with assessments administered by other staff members that the district determined to be qualified to administer achievement, process, emotional, and adaptive behavior assessments. On February 5, 1999, the Superintendent sent the DOE certification office a letter requesting the issuance of Ms. Farrior's second two-year temporary certificate in the subject area of psychology. The letter stated that the request was based on the fact that Ms. Farrior did not graduate from an approved teacher education program. By letter dated February 8, 1999, Respondent requested Tom Gallagher, Commissioner of Education, to assist her with problems she was having as the district's ESE Coordinator. On February 9, 1999, DOE issued Ms. Farrior's temporary/non-renewable certificate to teach psychology in grades six through twelve. The certificate was effective retroactively to July 1, 1998, through June 30, 2000. On February 9, 1999, Ms. Carlock was in the ESE building at the close of the school day. She was sitting in the office of Samantha Nelson, an ESE Resource Specialist. Ms. Nelson was checking her electronic mail when Ms. Carlock noticed Respondent's husband standing in the doorway to the office. Respondent's husband was holding a video camera. The camera was pointed toward Ms. Carlock and Ms. Nelson; the red recording light on the camera was blinking. Ms. Nelson confronted Respondent's husband regarding his violation of her privacy. She and Ms. Carlock then reported the incident to the Superintendent. The Superintendent immediately went to the ESE building to talk to Respondent's husband. Respondent's husband explained that he had not intentionally taped the conversation of Ms. Carlock and Ms. Nelson. According to Respondent's husband, he was testing his video equipment in preparation for taping the school board meeting that evening. Upon learning that Respondent was not present and had no knowledge of her husband's activities, the Superintendent advised Respondent's husband that videotaping of district employees in their offices was not allowed. He told Respondent's husband to wait in Respondent's office in the future. Ms. Nelson subsequently provided the Superintendent with a written complaint, informing him that she intended to file a grievance concerning the matter. As a result of that grievance, the Superintendent agreed that he, and not Respondent, would evaluate Ms. Nelson's job performance. At the school board meeting on February 9, 1999, the Superintendent recommended that Petitioner contract with FSU for $200.00 per intellectual evaluation. The Superintendent wanted Petitioner to authorize 49 evaluations. Petitioner approved this request for an unlimited number of evaluations. At the February 9, 1999, school board meeting, Petitioner rejected the Superintendent's request to advertise for an additional school psychologist pursuant to an approved position description with an annual salary of $50,000.00. By memorandum dated February 11, 1999, Respondent advised the Superintendent that a copy of her husband's February 9, 1999, videotape would not be made available until an attorney had an opportunity to review Ms. Nelson's complaint. Respondent subsequently provided the Superintendent with a copy of the videotape. The Superintendent never reviewed the tape because he believed he had effectively resolved the matter. By letter dated February 17, 1999, Respondent requested the Superintendent to join her in seeking Commissioner Gallagher's assistance in investigating the problems she faced as ESE Coordinator. Respondent enclosed a copy of her letter to Commissioner Gallagher. On or about February 15, 1999, the speech therapist on maternity leave from BES elected not to return to work. DCH continued to provide speech therapy services even though Petitioner had not yet approved a contract for those services. DHC sent the district the following invoices: (a) invoice dated December 28, 1998, in the amount of $4,390.35, for Fredda White-Crenshaw's services as a supervisor during the month of December 1998, approved by Respondent in the amount of $3,620.35; (b) invoice dated December 28, 1998, in the amount of $2,100.00, for the services of Marilyn Marshall at West Defuniak Elementary during the month of December 1998, approved by Respondent as submitted; (c) invoice dated December 28, 1998, in the amount of $4,066.85, for the services of Julie Lange during the month of December 1998, approved by Respondent in the amount of $2,980.60; and (d) invoice dated December 28, 1998, in the amount of $2,553.02, for the services of Kathy Lafever during the month of December 1998, approved by Respondent in the amount of $1,466.77. The total amount invoiced by DHC for December services was $13,109.87. Respondent reviewed these invoices and compared them to the "outsource therapy labor logs" maintained by DHC staff. She approved or made adjustments on February 11, 1999, verifying payment due to DHC in the total amount of $10,167.72. She then sent the invoices to Mr. McCall's office for payment. Upon receipt of the invoices, Mr. McCall compared them to the sign-in/sign-out logs maintained by the individual schools or site where DHC provided services. He determined that DHC's service providers recorded more time related to student services on their "outsource therapy labor logs" than was reflected on the sign-in/sign-out logs maintained by the schools. Mr. McCall reduced the payment for DHC's December 1998 services to the amount reflected on the sign-in/sign-out site- based logs. By memorandum dated February 19, 1999, Mr. McCall directed his office staff to pay DHC for its December invoices in the total amount of $7,674.39, or $2,493.33 less than the total amount approved by Respondent. Despite these reductions in payment, DHC continued to provide services to ESE students pursuant to the contracts. By letter dated February 25, 1999, John A. Stewart, Deputy Commissioner for Educational Programs, responded to Respondent's letter to Commissioner Gallager. Mr. Stewart stated that DOE's Bureau of Instructional Support and Community Services would continue to work with the district to address compliance and programmatic issues previously identified. As to Respondent's concerns over working conditions that were unsatisfactory, Mr. Stewart stated that the DOE could not intervene in personnel matters, which are within the purview of local officials. The Superintendent wrote a letter to Commissioner Gallagher on or about March 1, 1999. The letter refers to the pre-audit critique requested by Respondent and performed by DOE's two-member team in the fall of 1998. The letter refers to significant deficiencies in IEPs developed during the 1997/1998 school year. The Superintendent requested a "task force of supplementary pre-audit personnel" to provide technical assistance in preparing for an upcoming audit of ESE records from the 1997/1998 school year. In a memorandum dated March 22, 1999, DOE advised Ms. Farrior that she needed the following in order to be certified as a school psychologist: (a) 27 additional semester hours of graduate credit in school psychology; (b) graduate credit should include six semester hours in a supervised school psychology internship, approved by DOE, at an elementary or secondary school; and (c) official documentation of a passing score on the school psychologist subject area test. At the time that Ms. Farrior received the March 22, 1999, statement of eligibility from DOE, she had not submitted her updated transcript from Troy State University, showing graduate credit received in 1992 and 1993. It did not include the graduate courses at the University of West Florida and Capella Distance Learning University, in which she was then enrolled. Therefore, DOE was not aware that Ms. Farrior had completed some of the required graduate credit course work. In March of 1999, Ms. Holder helped Ms. Farrior complete her application packet for enrolling in Capella Distance Learning University's school psychology internship program. Ms. Holder agreed to act as intern supervisor for Ms. Farrior. On March 23-25, 1999, George Pesta, Juvenile Justice Education Specialist at FSU, conducted a quality assurance review at North American Family Institute (NAFI) in Walton County. NAFI is a private, not for profit, Level Six and Level Eight facility. It provides juvenile delinquents enrolled in the Serious Habitual Offender Program with residential services in an Intensive Halfway House. NAFI provides these services pursuant to a contract with the Department of Juvenile Justice. NAFI provides its clients with educational services under a contract with the district. The district provides ESE services to NAFI's clients. Mr. Pesta's review included an audit of NAFI's ESE records. Respondent had signed five IEPs for NAFI students; these IEPs were in compliance with IDEA. One IEP that was developed before Respondent became ESE Coordinator was incomplete; it lacked goals and objectives. At a school board meeting on March 30, 1999, the Superintendent requested Petitioner's approval to advertise for a certified school psychologist for ten months plus one month (10+1) with a base salary of $33,000.00. Petitioner approved the recommendation with the base salary subject to the collective bargaining agreement. In 1999, the parent company of DHC created a new corporation to provide outsourcing therapy services. The new corporation, Beverly Health and Rehabilitation Services, Inc. (Beverly Rehabilitation), assumed DHC's obligations under the written contracts with Petitioner. In March 1999, Beverly Rehabilitation gave notice that it would no longer provide Petitioner with physical therapy and occupational therapy services. It was not economically feasible for Beverly Rehabilitation to provide these services under Petitioner's interpretation of the written contracts. Beverly Rehabilitation continued to provide Petitioner with a speech pathologist supervisor and speech therapy services pursuant to the approved written contracts. In a memorandum dated April 5, 1999, Respondent requested the Superintendent to rehire Ms. Farrior as an ESE staff employee for the 1999/2000 school year. Respondent wanted Ms. Farrior to continue working as an "evaluation specialist" until she could perform all of the functions of a certified school psychologist or an intern in an approved school psychology internship program. Respondent knew there was no position description for an evaluation specialist approved by Petitioner. She also knew that the Superintendent could not recommend the hiring of a staff member for which there was no approved position. Respondent did not request the Superintendent to recommend that Petitioner create such a position. At a school board meeting on April 15, 1999, the Superintendent recommended that Petitioner rehire Ms. Farrior as an ESE employee. Neither the Superintendent nor Respondent, who was present at the meeting, informed Petitioner that they were attempting to have Ms. Farrior rehired for a position that did not exist. The Superintendent's intent was for Ms. Farrior to fill the school psychologist position for which she was not certified. The Superintendent understood that Ms. Farrior would be enrolled in an internship program during the 1999/2000 school year. He also understood that until Ms. Farrior could fulfill the duties of a school psychologist, other members of the ESE staff would have an increased workload. Petitioner voted to reject the Superintendent's recommendation. Sometime after April 16, 1999, Petitioner approved the contract for Beverly Rehabilitation to provide BES with a speech/language therapist. The contract terms were accepted as originally proposed with Petitioner paying $440.00 per day for all services including travel time and mileage. In a memorandum dated April 18, 1999, Respondent advised the Superintendent that due to Petitioner's failure to renew Ms. Farrior's annual contract, the district would not have a staff member filling the school psychologist position at the end of the school year. Respondent stated that the district was in "dire need of hiring two individuals [as school psychologists] in order to adequately serve the needs of the ESE students of Walton County." Respondent stated that she intended to address this need at the next school board meeting. However, Respondent never requested the Superintendent to nominate a specific individual to be employed as school psychologist other than Ms. Farrior. Respondent admits that it was her duty to make this recommendation to the Superintendent. On April 19, 1999, Respondent sent the Superintendent a memorandum inquiring about the current position status of Ms. Jones. Respondent needed the information in order to prepare an organizational chart requested by the Superintendent. Respondent did not know whether Ms. Jones was a member of the ESE department or the student services department. Respondent's memorandum stated that Ms. Jones was serving in the capacity of Child Find Specialist in a position that Petitioner had not approved. In May 1999, Capella Distance Learning University approved Ms. Farrior's application to enroll in its school psychologist internship program with Ms. Holder as her supervisor. The internship program was scheduled to begin the next quarter on October 4, 1999. On May 12, 1999, Respondent sent the Superintendent a memorandum concerning Ms. Jones' annual job performance evaluation. Respondent did not want to write the annual evaluation as requested because Ms. Jones was not an ESE staff member under the organizational chart. Respondent recommended that Ms. Jones be transferred to a position with no connection to ESE students. At the May 13, 1999, school board meeting, the Superintendent recommended that Petitioner approve a position description for a school psychologist for ten months plus one month (10+1) under a salary schedule. The Superintendent requested permission to advertise for this position the following Monday. The Superintendent reminded Petitioner that the district was entitled to two school psychologists and that he would like to advertise for both of them. After much discussion, Petitioner voted to approve the advertisement of two school psychologist positions for ten months plus two months (10+2) under a salary schedule, one to be filled immediately and one to be filled later. At the May 13, 1999, school board meeting, Petitioner voted to terminate the contract with Beverly Rehabilitation for a speech/language pathologist supervisor. Ms. White-Crenshaw had been providing this service. At the May 13, 1999, school board meeting, Petitioner rejected the Superintendent's recommendation to renew Respondent's annual contract for the position of ESE Coordinator by a vote of three to two. Ms. Atkinson and Mr. Davis voted to rehire Respondent. Mr. Jones rejected Respondent's nomination based on her conduct as follows: (a) Respondent's failure to provide telephone and fax logs in a timely fashion; (b) Respondent's misrepresentation regarding Special Agent Dill's directive not to release the requested records; (c) Respondent's failure to explain the details of her oral agreement with DHC regarding charges for the service providers' travel time before recommending that Petitioner approve the contract; (d) Respondent's failure to verify the charges on the second batch of DHC invoices by comparing them with the site-based sign-in/sign-out logs; (e) Respondent's failure to check Ms. Farrior's certification credentials before recommending that Petitioner employ her for the 1998/1999 school year; (f) Respondent's recommendation that the Superintendent nominate Ms. Farrior for employment in the 1999/2000 school year when Respondent knew that Ms. Farrior was not certified as a school psychologist; and (g) Respondent's failure to recommend a certified school psychologist for the 1999/2000 school year after learning that Ms. Farrior would not be rehired. Mr. Richardson voted not to renew Respondent's contract based on her conduct as follows: (a) Respondent's recommendation of an uncertified school psychologist for the 1998/1999 school year; (b) Respondent's recommendation of the same uncertified school psychologist for the 1999/2000 school year; (c) Respondent's failure to verify the accuracy of the charges in the first and second batch of DHC invoices; and (d) Respondent's failure to provide telephone logs in a timely fashion and subsequent misrepresentation regarding Special Agent Dill's directive not to release the records. Mr. Barnhill voted to reject Respondent's nomination. He based his vote on Respondent's failure to present the proposed DHC/Beverly Rehabilitation contract for speech services at BES in a timely fashion. At the school board meeting on May 25, 1999, the Superintendent made a second attempt to nominate Respondent as ESE Coordinator for the 1999/2000 school year. Petitioner rejected her nomination for the second time. On June 30, 1999, Respondent's and Ms. Farrior's annual contracts expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rejecting the Superintendent's nomination of Respondent as ESE coordinator for the 1999/2000 school year. DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1999.
The Issue The issues to be resolved in this proceeding concern whether the Respondent's teaching certificate should be subjected to sanctions based upon whether he engaged in personal conduct that seriously reduces effectiveness as a teacher; whether he violated the principles of professional conduct of the education profession; whether he intentionally exposed a student to unnecessary embarrassment or disparagement; and whether he failed to take reasonable efforts to protect the student from conditions harmful to learning and to the student's mental health or physical safety.
Findings Of Fact The Respondent holds Florida's Educator Certificate No. 533651, certifying him in the area of music. It is valid through June 3, 2004. At all times pertinent hereto, the Respondent was employed as a music teacher in the Citrus County School District. He has been a teacher for 14 years and began teaching in Citrus County in August of 1993. During the 1996-1997 school year C.C. was a seventh grade student. She was 12 years of age until May of 1997, when she turned 13. She had taken violin lessons from the Respondent during the 1996-1997 school year and the Respondent had been one of her teachers since she had been in the second grade. C.C. was admitted to the National Junior Honor Society (NJHS) when she was in the seventh grade because she had good grades and was a good student. One of the fund-raising projects for the NJHS was a pineapple sale. C.C. participated in this sale and asked the Respondent if he would like to buy a pineapple and he agreed. At that point he hugged her and told her he loved her. She became somewhat upset at being hugged by the Respondent and his telling her that and made a note in her diary for February 27, 1997, that "Mr. Wedebrock told me he loved me. I don't know what to make of it." This made her somewhat uncomfortable and embarrassed. The Respondent told C.C. he loved her several times over the early months of 1997. This made her feel uncomfortable since she was only 12 years old and did not think she needed to hear such comment from her teacher. She had never been spoken to by another teacher in that way and never saw Respondent tell any other students that he loved them in that way. It embarrassed her. The Respondent gave C.C. souvenirs from a trip to Disney World and marked two brochures from Disney World with his rankings of the many different rides or attractions. He gave her those brochures and gave her a key chain with her name on it and a pin. At the same time he gave her a note which said among other things "maybe some day we can go together" (referring to Disney World). The Respondent had called her into his office to give her the Disney World-related items. She had never seen the Respondent give presents to any other student. Near the end of the school year the Respondent wrote a note to C.C. and placed it in her violin case along with several pieces of music. The Respondent then told C.C. to go look in her violin case. When she did so she discovered the note along with "Music of the Night" a piece from Phantom of the Opera. The note read as follows: Please remember everything I told you this year. It's really true times a billion! Times infinity! Please just give me a chance. That's all I ask of you. You are my music of the night . . . I'll miss you (over) so much this summer! I'll miss seeing you in chorus next year. I'm sure you would have made All State! Did you know that you could be a peer counselor at CHS (hint hint). I just need to know how you feel about me. My love for you is so strong and deep. Should I just stop? Or do you think some day you'll love me? Have a great summer! Enjoy your new violin! I love you!!! (Emphasis from the original) C.C. thought the note was embarrassing and somewhat disgusting coming from a teacher. She showed the note to her sister who was one year younger than C.C. Her sister believed that C.C. should show the note to her mother and father. C.C. decided to tell her mother. Later, at a restaurant, C.C. placed the note in her mother's hands and then ran into the bathroom. After receiving the note, C.C. became quite withdrawn, having less interaction with others. When she gave her mother the note her mother noticed that she was extremely upset and teary-eyed and did not want to talk to her mother or step- father. This was unusual behavior for her. C.C.'s mother and step-father decided to notify the school about the note; however, at C.C.'s request they waited until the last day of class with the Respondent before revealing it to the school administration. C.C.'s mother and step-father went to the school and in Mr. Eldridge's absence they spoke to Ms. Staten, the assistant principal. They informed her of the situation with the Respondent and the note, although C.C. did not go with them because of her embarrassment. Both C.C.'s mother and step- father were very upset about the contents of the note and the Respondent's expressions towards C.C. After meeting with the parents Ms. Staten informed the principal, Mr. Eldridge, of the situation when he returned. Mr. Eldridge had a meeting with the Respondent that day and the next day Ms. Staten, Mr. Eldridge, and the Respondent met again. During the course of that second meeting the Respondent agreed to resign. Ms. Stiteler, the Director of Personnel for Citrus County Schools met with the Respondent on May 30, he admitted to her that he had given the note to C.C. He appeared rational and lucid during the course of that interview and told Ms. Stiteler that he did not know why he wrote the note in question but admitted having feelings for C.C. and said he had not intended to have those feelings. He said he was fond of her and that she was a special student and was very bright and musical. The Respondent acknowledged that he himself had noticed a change in C.C.'s behavior (withdrawal) after he had given her the note in question. The Respondent also wrote a note to C.C.'s parents which he gave to Ms. Stiteler. Among other things he promised in that note to never again express his feelings for C.C., but does not deny that he had the feelings previously expressed. The Respondent's actions damaged the trust that C.C.'s parents, C.C., and her sister had placed in him as a teacher. It also lessened the trust the administrators, such as Ms. Stiteler, Mr. Eldridge, and Ms. Staten, confided in him as well as their trust in his judgment. The Respondent has experienced weight problems much of his life and, in fact, during the relevant time period he was considered "morbidly obese." He strongly desired for obvious health reasons, to end his obesity and so on April 19, 1996, began seeing Dr. Azeele Borromaeo, M.D. Dr. Borromaeo prescribed the dietary drug combination of Phentermine and Fenfluoramine, commonly known as "Phen-fen." While he was taking Phen-fen the Respondent met regularly with Dr. Borromaeo. In the fall of 1996, he complained of mood swings, great irritability, forgetfulness, and other side effects, such as dry-mouth, frequent headaches, and sexual problems. In November of 1996, after such complaints, the doctor took him off Phen-fen for about a month. The side effects subsided at that time. During the time the Respondent had been on Phen-fen through November 1996, his weight decreased from 359 pounds to 289 pounds. Given that degree of success he decided to begin again taking Phen-fen in December of 1996. He noticed a return of the side effects almost immediately. The forgetfulness, confusion, nausea, sensitivity to light and sound, and irritability all returned and the Respondent says it got progressively worse through the first half of 1997 while he was taking Phen-fen. His wife described the effects as getting worse and worse. Beginning in about February of 1997 through May 1997, the Respondent wrote and said the inappropriate things to C.C. referenced in the above findings of fact. The Respondent candidly admits that he expressed these feelings, of an amorous nature, referenced in the above findings but professes not to know why he wrote or said those things to the student in question. He maintains he was confused, depressed, and suffering from the other referenced side effects of the drug at the time. The Respondent's professional peers, Mr. Eldridge and Ms. Staten, did not notice any abnormal behavior by the Respondent while he was working at school. They perceived him to be happy and in control of his personality. Ms. Staten was his supervisor during the school year and saw him almost daily, including in his classroom setting. She did not notice anything unusual about his behavior and found him personable and jovial. Neither C.C. nor S.G., a classmate, noticed any unusual behavior by the Respondent in the classroom, such as forgetfulness or excessive irritability. In his visits to Dr. Borromaeo and his primary care physician, Dr. Dwinelle, the Respondent noted the he was a little irritable and had some sexual problems and dry mouth from February through May of 1997, but did not, at least according to the doctors' notes, complain of any of the other side effects of Phen-fen. The Respondent did not mention any effects of the use of the drugs as a possible explanation for his conduct in his conversations with Mr. Eldridge, Ms. Staten, and Ms. Stiteler around the time of his resignation. Following his resignation from his teaching position, the Respondent underwent a neuro-psychological examination from Sidney J. Merrin, Ph.D., a psychologist in private practice in Tampa, Florida. A variety of psychological tests on the Respondent was performed, lasting approximately 15 hours. Dr. Merrin also conducted a counseling session with the Respondent. Dr. Merrin concluded as shown in his report, in evidence as the Respondent's Exhibit No. 1, including Exhibit A thereto, that: . . . There was nothing in his examinations that would support any contention he is an emotionally or mentally disturbed individual that would prompt him to invade the privacy of a young student or disturb the decency of normal interpersonal relationships. I see nothing in his examinations that would describe him in pathological terms. Consequently, should he have behaved as he described, in the manner he had, the basis for that behavior must then be ascribed to a temporary condition of short-term destabilization from which he has now very adequately recovered. In his deposition Dr. Merrin opined that whatever did occur in his estimation would have been unlike the Respondent's usual personality to the extent that something in the interim had to have changed his behavior or reduced his impulsivity controls. Dr. Merrin opined that it could have been the introduction of Phen-fen. Dr. Una D. McCann is an associate professor of psychiatry at Johns Hopkins University. She has conducted clinical and pre-clinical research on a variety of different amphetamine analogs, including Fenfluoramine, for over 10 years. Her interest in studying Phen-fen is that it is an amphetamine analog that happens to be neurotoxic. It has been shown in animals to damage certain brain cells which produce the chemical serotonin, related to mood. Her research has been directed to achieving understanding of the effect of Phen-fen and related drugs towards specific cells such as those that make serotonin in the brain. Thus Dr. McCann's primary interest as a psychiatrist has been to determine what happens to humans who take Phen-fen, whether the brain's serotonin neurons are damaged from taking the drug and whether and to what extent any psychiatric effects flow from that damage. There is no definitive study according to Dr. McCann's testimony, which shows that Phen-fen can cause such personality changes or behaviors as are involved in the Respondent's actions in this case. Dr. McCann is aware of some 30 case studies or histories of people who, while taking the drug combination called Phen-fen had exhibited aberrational psychiatric symptoms and behaviors. Dr. McCann did not examine and test the Respondent but upon being provided information of his circumstances and the actions he took at issue in this case, she concluded that his behavior toward the student could have been influenced by his use of Phen-fen. The Respondent is no longer taking Phen-fen and the evidence indicates he has returned to his baseline psychiatric state. He has exhibited no such abnormal and inappropriate behavior since abandoning the use of Phen-fen. The Respondent has an excellent teaching background, with excellent evaluations and no other disciplinary problems. He has been a teacher for 14 years and began teaching in Citrus County in August of 1983. He has been a very effective teacher with no personality traits or behaviors other than those in the time referenced-above which have caused any difficulties in his relationships with students, other teachers, or administrators. His family history is that of a stable marriage and of his being a loving father to his three children. There is little in the evidence of record to show any pattern to the objectionable behavior involved in this proceeding. Thus it would appear, with his history of exhibiting a stable personality and stability in his employment life and family life that, along with the rather scant available medical and scientific evidence, that there may indeed be some causal relationship between the Respondent's use of Phen-fen and his inappropriate actions towards the student in question. Persuasive evidence, however, has not been presented to show as through appropriate scientifically managed, and refereed that the use of Phen-fen abrogates such a person's exercise of free- will, that it abrogates his sense of reality nor that it prevents him from knowing what he is doing as he commits certain behaviors. It was not shown to prevent him from being able to control his own actions. Phen-fen may cause severe depression and the other symptoms and psychiatric problems referenced in the above findings of fact while the associated depression and other problems possibly, although not proven to have been caused by Phen-fen, may have caused a lowering of his impulse control which relates to the exercise of bad judgement, the clear and convincing evidence shows that at the time he committed the behaviors in question he was in touch with reality. Although he exhibited abysmally poor judgment on those occasions, he knew what he was doing at the time and in fact never denied it when interviewed by his superiors in the school system. Consequently, it cannot be found that the use of Phen-fen abrogated his responsibility for his actions.
Recommendation Accordingly, in consideration of the above findings of fact, including those of the mitigatory circumstances, it is therefore, RECOMMENDED that a final order be entered by the Petitioner Agency suspending the Respondent's teaching certificate for a period of three years, during which time he should engage in therapy and counseling from a qualified psychiatrist or psychologist with a view towards showing that he is mentally and emotionally recovered and able to work with children and otherwise perform the duties of a public school teacher. Upon his completion of such counseling and therapy, under a professionally-mandated schedule and regimen, he should be required to provide a written opinion of a qualified psychiatrist or psychologist to the Department of Education, establishing that he is mentally and emotionally able to work with children and otherwise perform the duties of a public school teacher before his licensure should be restored to active, unrestricted status. He should also be placed on probation for a period of five years following any such reinstatement, under such terms and conditions as the Education Practices Commissions may deem appropriate. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2000. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
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.
