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 consideration is whether the Petitioner, Donna B. Lopez, is qualified to sit for the examination as a mental health counselor in Florida by virtue of her education and experience.
Findings Of Fact In April, 1985, the Petitioner, Donna B. Lopez, filed an application with the Florida Board of Psychological Examiners, (Bgard), to sit for examination as a mental health counselor. In paragraph 7 of the application, which called for a listing of all post-secondary psychology related education, Petitioner indicated that she received a degree as psychologist with a major course of study in psychology from the Universidad Nacional de Rosario, Esquela de Psicologia, in Rosario, Argentina, which school was accredited by the Universidad Nacional del Litoral in the Republic of Argentina. Petitioner graduated from that school on December 30, 1971. When the application was received by the Board, it was evaluated by Ms. Biedermann, who determined Petitioner did not qualify to sit for the requested examination because the university from which she received her degree was not accredited in accordance with state requirements that the applicant have a Master's degree from a university accredited by an agency approved by the United States Department of Education. To make the evaluation, Ms. Biedermann used two documents to determine accreditation; the 1981-1982 edition of Accredited Institutions of Post Secondary Education (Programs/Candidates), a directory of accredited institutions and programs published for the "Council on Post-Secondary Education" of the American Council on Education and Accredited Post-Secondary Institutions and Programs, published by the United States Department of Education in September, 1980. Supplements to the latter are published in the Federal Register and during the evaluation, Ms. Biedermann considered not only the basic document but also the then current edition of the Federal Register. Petitioner's university was not listed as an accredited university by any of the documentation either at the time of evaluation of the application or at the time she graduated in 1971. Consequently, Ms. Biedermann advised Petitioner that her application to sit for the examination had been denied. Another reason for rejection of Petitioner's application was that Ms. Biedermann was unable to determine if Petitioner's degree was equivalent to a Master's degree in the United States. Included with Petitioner's application was a translation into English of a Spanish language document which constitutes a description of her course work, but it is not an official transcript. Nonetheless, Ms. Biedermann called the United States Department of Education to inquire if there were any schools in Argentina accredited by United States approved agencies and was advised that there were not. Petitioner attended undergraduate school in Rosario, Argentina, graduating from a five year course of study with the degree of Psychologist in 1971. Thereafter, she completed a three year internship in a mental health center in Buenos Aires during which time she did a series of rotations throughout the different departments of the center. From there she went into private practice in Buenos Aires and was a member of a psychiatric team in a hospital from 1973 through 1978. During this time she was supervised by a psychiatrist who is a member of the American Psychiatric Association. In 1979 she settled in Miami, becoming an American citizen in 1986. After her arrival, she applied to the Dade County Board of Psychologists, then the accrediting agency, and was issued an occupational license as a psychologist in late 1979 or 1980. She thereafter practiced as a psychologist in Dade County until 1981 when the Florida Legislature passed the current statute, (Section 490.005) governing the licensing of psychologists and various sub-disciplines. In the 1950's, the original Chapter 490 of Florida Statutes licensed psychologists at the Doctorate level only. In 1979 this statute sunsetted and from 1979 to 1981, at least in both Dade and Broward Counties the county occupational license was issued to almost anyone applying for it without a prior demonstration of qualification. In the memory of Dr. Jospeh R. Feist, who was instrumental in the process designed to cure this situation, approximately 800 occupational licenses were issued in the first six months of this period: a figure the same as the total number of licenses issued statewide under the prior licensing statute in the prior twenty years. In 1979, the Dade County Commission passed an ordinance to revoke the occupational licenses issued during the hiatus period and established qualifications for licensing. It also created a board to review applicants. Dr. Feist was appointed as Secretary of the board which was made up of six members, all of whom were Ph.D's. In the course of this service, Dr. Feist became acquainted with Petitioner who applied sometime during 1980. The board recommended approval of her application. In Dr. Feist's opinion, Petitioner's course work was at or beyond the Master's level in the United States. The Board, however, did not inquire into whether Petitioner's university was properly accredited here. Dr. James E. Gorney is a clinical psychologist who is also an assistant professor of psychiatry at Cornell University Medical Center. As a part of his duties, he participates in the training program for post-doctoral psychologists and for 11 years or so, has examined the transcripts of numerous individuals possessing both Master's and Doctor's degrees in psychology. He got to know the Petitioner when they were both selected to serve on a prestigious international panel in New York City made up of university teaching psychologists hand picked by the conference leaders. Dr. Gorney has reviewed Petitioner's course work and based on it and his personal knowledge of her work and experience, he is of the opinion that she possesses the equivalent of a Master's degree from Cornell. Her program far exceeds any program for a Master's degree in psychology Dr. Gorney has seen anywhere in the United States and is the equivalent of a Doctoral program. It surpasses many programs approved by the American Psychiatric Association. Every area is covered and many related areas normally covered in Doctoral programs are included providing a very broad range of experience. Dr. Gorney's opinion is reinforced and supported by the deposition testimony of Dr. Muller whose experience with Petitioner and evaluation of her credentials leads him to conclude that her course work is the equivalent of at least a Master's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's application to take the examination for licensure as a mental health counselor be denied. RECOMMENDED this 28th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1987. COPIES FURNISHED: John L. Britton, Esquire BRITTON & KANTNER, P.A. Barnett Bank Building, Suite 1203 One East Broward Boulevard Fort Lauderdale, Florida 33301 Phillip B. Miller, Esquire Robert D. Newell, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Linda Biedermann, Executive Director Board of Pschological Services 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner's application for licensure as a psychologist should be approved pursuant to Chapter 490, F.S. This proceeding commenced upon the provisional denial by Respondent Board of Psychological Examiners of Petitioner's application for licensure by exception as a psychologist under Chapter 490, Florida Statutes. The denial was based on the Board's determination that Petitioner's doctoral degree was not primarily psychological in nature in that it did not reflect coursework in biological bases of behavior as required by Respondent's Rule 21U-11.05(2)(a), Florida Administrative Code. Petitioner requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer. At the commencement of the hearing, Petitioner was advised of the procedures and her rights in an administrative hearing. She elected to represent herself ate the hearing. At the hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses. She submitted two composite exhibits which were received in evidence. Respondent called one witness and submitted one composite exhibit in evidence. Post-hearing submissions by the parties in the form of a Memorandum by Petitioner and a Proposed Recommended Order by Respondent have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact By application dated May 6, 1982, which was received by Respondent on May 13, 1982, Petitioner Ann M. O'Roark applied for licensure by exception as a psychologist pursuant to Chapter 490, Florida Statutes. The application reflected that Petitioner received an A. B. J. degree in journalism from the University of Kentucky in 1955, a M.Ed. from the University of Florida in 1972, and a Ph.D. from the University of Florida in 1974, with a major in Foundations of Education. She was a member of Phi Beta Kappa at the University of Kentucky, and is currently a member of various psychological associations. She was licensed as a psychologist in the Commonwealth of Kentucky in 1975. She has had extensive work experience in Kentucky, Georgia, and Florida since receiving her doctorate degree, primarily in the field of educational psychology, psychological assessment and diagnostic services, organization development consultation services, and individual and group educational/developmental services. Her application reflects that she was certified as an educational psychologist, Rank A-1, by the State of Florida in 1974. (Testimony of Petitioner, Petitioner's Exhibits 1-2, Respondent's Exhibit 1) By letter dated October 28, 1982, Respondent advised Dr. O'Roark that her application was denied for the reason that her doctoral transcript did not reflect coursework in biological bases of behavior, as required by Respondent's Rule 21U-11.05(2), Florida Administrative Code. The letter further provided Petitioner an opportunity to submit additional information concerning her doctoral program, and also advised her of her rights to an administrative hearing. Following the submission of further information by Petitioner, Respondent advised her, by letter dated October 28, 1982, that her application file, including the additional information submitted, had been reviewed, but the board reaffirmed its previous decision to deny the application. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 2) Rule 21U-11.05, F.A.C., provides that in order to be certified by the board as eligible for issuance of a psychology license by exception, an applicant must have received a doctoral degree from an accredited educational institution in a program that is "primarily psychological in nature." Such a program is defined in paragraph (2) of the rule as one that requires the successful completion of one course in each of six specified areas. One of these areas is "biological bases of behavior" and the rule provides examples of courses that qualify in such category as being "physiological psychology, comparative psychology, neuropsychology, and psychopharmacology." At the hearing, Petitioner submitted materials concerning certain courses she had taken in her doctoral program which purportedly contained from one-fifth to one-third of the subject matter in the area of biological bases of behavior. However, none of the courses deals substantially or exclusively with the area of biological bases of behavior. Most of the courses fall within other categories specified in Rule 21U-11.05(2), F.A.C. As a matter of policy, the Board in the past has not permitted an applicant to use portions of several courses to qualify as the one course required in each of the various subject matter areas. The reason for this policy is to insure that one obtains an appreciable knowledge in each of the six specified areas. (Testimony of Petitioner, Perry, Petitioner's Composite Exhibit 2) Petitioner's work as a consultant at the Albany Mental Health and Retardation Center and for the Florida Department of Transportation was characterized by officials of those organizations as very professional and successful. (Testimony of Hertwig and Kietzer)
Recommendation That Petitioner's application be denied. DONE and ENTERED this 2nd day of March, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: Ann M. O'Roark, Ph.D. 2904 NW 40th Place Gainesville, Florida 32605 John E. Griffin, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Jane Raker, Director Board of Psychological Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in the case is whether the application of Anne L. Kruppa (Petitioner) for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 13, 2004, by Jim Horne, Commissioner of Education (Respondent).
Findings Of Fact By an application dated July 7, 2000, Petitioner applied for a teaching position with the Hillsborough County School District. In the application, the Petitioner identified her college degree as "B.S. Zoology" from the University of South Florida (USF). Above Petitioner's signature, the application states that Petitioner certified that the information provided on the application was "true and correct without any falsifications, omissions, or misleading statements of any kind whatsoever." The application contained a space where the date of Petitioner's college graduation was to be provided. Petitioner's application did not include a graduation date. A handwritten question mark appears in the space where the date was to be set forth. Petitioner was employed as a teacher by the Hillsborough County School District for the 2000-2001 school year. At the time of her employment, Petitioner was instructed to obtain her college transcript from USF and provide it to the Hillsborough County School District. The evidence establishes that Petitioner did not have a bachelor's degree in zoology from USF when she completed the employment application. By an application dated July 31, 2000, Petitioner applied for a Florida Educator's Certificate. In the application, Petitioner stated that she had received a bachelor's degree in zoology from USF in 1998. According to the application, by her signature, Petitioner certified that "all information pertaining to this application is true, correct, and complete." At the time of the certification application, Petitioner was directed to obtain her college transcript and provide it to the Florida Department of Education. The evidence establishes that Petitioner did not have a bachelor's degree in zoology from USF when she completed the certification application. By spring of 2001, Petitioner had not provided a transcript to either the Hillsborough County School District or to the Florida Department of Education. At that point, the Hillsborough County School District contacted USF to assist in obtaining Petitioner's transcript, at which time the district learned that Petitioner did not have a bachelor's degree. In April 2001, the Hillsborough County School District terminated Petitioner's employment because she could not obtain a Florida Educator's Certificate without a college degree, and the employment required such certification. After the termination of employment by the Hillsborough County School District, Petitioner worked with the Hillsborough County School District as a substitute teacher and attended Hillsborough Community College in the fall semester 2001. After completing a course at the community college, Petitioner received a bachelor's degree in zoology from USF on December 14, 2001, and returned to teaching full-time for the school district. The evidence establishes that prior to December 14, 2001, Petitioner did not have a bachelor's degree, contrary to the information set forth on her application for employment with the Hillsborough County School District or the application to obtain a Florida Educator's Certificate from the Florida Department of Education. At the hearing, Petitioner testified that at the time she filed the applications she believed that she had received her bachelor's degree from USF in the summer of 1997 after taking a course called Elementary Calculus II during the summer term. The USF summer term included three separate sessions. Session A and Session B were six-week terms. Session C, a ten- week term, is not at issue in this case. The records of the 1997 USF summer term indicate that the Petitioner was enrolled in "MAC 3234 Elem Clclus II" (Elementary Calculus II) during the Summer Session A. According to the transcript, she received an "F" in the course. Petitioner testified that she thought she had enrolled in the course for Summer Session B. Petitioner testified that she paid another person to attend the classes and take notes for Petitioner. Petitioner testified that Petitioner took "a bunch of the tests" and "was figuring I had roughly a B something in the course." The note-taker testified by deposition and recalled taking notes for Petitioner during July and August of 1997 for a fee of ten dollars per hour. There is no evidence that the note-taker took any tests. Classes for the 1997 USF Summer Session B commenced on June 30 and ended on August 8. Classes for the 1997 USF Summer Session A commenced on May 12 and ended on June 20. Petitioner testified that at some point after the summer session was completed, she saw the course instructor and spoke to him about her performance in the class. The instructor did not testify at the hearing. Petitioner testified that she did not receive her grade for Elementary Calculus II, but presumed that she had passed the course and received her degree. Review of Petitioner's USF transcript establishes that at various times Petitioner took courses identified as "MAC 3233 Elem Clclus I" (Elementary Calculus I) and "MAC 3234 Elem Clclus II" (Elementary Calculus II). Petitioner enrolled in Elementary Calculus I in the fall term of 1994, but withdrew. In the fall term of 1995, Petitioner re-enrolled in Elementary Calculus I and received a grade of "A." Petitioner first enrolled in Elementary Calculus II in the spring term of 1996 and received a grade of "F." Petitioner again enrolled in the course in the summer term of 1996 and received a grade of "D." In the fall term of 1996, Petitioner re-took the Elementary Calculus I course and received a grade of "F." Petitioner's testimony regarding her presumed performance in the summer 1997 course lacks credibility based on review of the transcript. Based on the performance in the referenced calculus courses, it is unlikely that Petitioner reasonably presumed without further inquiry that she passed the Elementary Calculus II course and received her degree after the summer term of 1997. Petitioner also testified that she believed her admission to the USF graduate school indicated that she had completed her undergraduate requirements, and that further inquiry was apparently not required. The Official Acceptance that was mailed to Petitioner and was required to be presented to USF officials in order to register for courses clearly states that the admission was "provisional." The Official Acceptance required that Petitioner submit to the graduate school her undergraduate transcript indicating that the degree had been conferred. Nothing provided to Petitioner by the USF graduate school indicated that the undergraduate degree had been awarded. Petitioner was in the USF graduate program for one semester and was enrolled for five classes, four of which were undergraduate-level classes. In the fifth class (identified as "EDF 6432 Fndtns Measrmnt") she received a grade of "F."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Jim Horne, as Commissioner of Education, enter a final order denying Petitioner's pending application for a Florida Educator's Certificate and providing that Petitioner may not reapply for such certification for a period of two years. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of September, 2004.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 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 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
The Issue The issue in this case is whether Respondent, Harriett S. Parets, committed the offenses alleged in an Administrative Complaint issued by Petitioner, and dated July 27, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact 1. Petitioner filed his Administrative Complaint on July 27, 2004, alleging certain material allegations and Statutory and Rule violations and seeking an appropriate penalty pursuant to the authority provided to the Education Practices Commission in Sections 1012.795(1) and 1012.796(7), Florida Statutes. Respondent filed her Election of Rights and requested a formal hearing on August 23, 2004. The parties’ previous attempt at resolving this matter met without success, and a formal hearing was requested which was scheduled for March 1 and 2, 2006. 2. At all times material to the allegations of this case, Respondent, Harriett Parets, was employed as an elementary school teacher in the Broward County School District. 3. Respondent holds Florida Educator’s Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008. 4. Prior to the incidents complained of in this cause, Respondent taught in the Broward County School District without discipline for six years. Respondent was in her seventh year with the system when the allegations of this case arose. 5. Respondent had no prior disciplinary concerns. 6. Respondent had received satisfactory evaluations every year. 7. Respondent had administered the Florida Comprehensive Assessment Test (FCAT) on five prior occasions without incident. 8. During the 2002 school year Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11 through 13, 2003. 9. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video. 10. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited. 11. Teachers at McNab were advised on the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT. 12. In fact, as McNab had received an “A” rating in the past (following good FCAT results), the school had received special funding tied to that performance. 13. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed. 14. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration. 15. In this case, the proctor and several students verified comments from Respondent that deviated from the scripted instructions. 16. Contrary to the scripted instructions Respondent looked at the students’ test booklets, told more than one student to re-examine their work for errors, and pointed out a wrong answer. Respondent announced to the class as a whole that she was “seeing a lot of wrong answers.” 17. The Respondent was not authorized to make comments during the administration of the test. More important, the Respondent was not permitted to assist by any means the students who were taking the FCAT. 18. Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). Respondent knew or should have known that she had been directed to watch the video. 19. Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher’s testing manual. 20. The issues of Respondent’s comments to the class and the level of assistance she had provided to students came to light when a student told her mother of Respondent’s conduct. The mother then contacted a school administrator to make the alleged improprieties known. 21. After determining that Respondent had assisted students in her class, administrators invalidated the test results from Respondent’s class. 22. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an “A” performing school under the state guidelines. Had the results from Respondent’s class been included, the school might have qualified and received recognition as it had in the past. 23. Following a formal hearing on the identical facts, the school district suspended Respondent for thirty (30) days. 24. Respondent has proctored the FCAT every year since the incident, including this year, without problem. 25. The District found that a 30-day suspension plus training was sufficient discipline.
Conclusions Stipulated Conclusions. 26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. 27. Petitioner bears the burden of proof in this case to establish the allegations in the Administrative Complaint by clear and convincing evidence. Petitioner has met that burden. 28. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam. 29. Additionally, Florida Administrative Code Rule 6A- 10.042 prohibits interfering “in any way” with persons who are taking the FCAT in order to assist their performance. Clearly, Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers. 30. By deciding to only suspend Respondent (as opposed to dismissal), Petitioner has recognized her past contribution to the school district. That Respondent blames others for her violation of testing protocols is regrettable. Petitioner has established that Respondent violated testing protocols and should be disciplined. 31. Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint. Other Conclusions. 32. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission (hereinafter referred to as the “EPC”) the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute. 33. The Commissioner has alleged in Count 1 of the Administrative Complaint that Respondent violated Section 1012.795(1)(c), Florida Statutes; in Count 2, that Respondent violated Section 1012.795(10(f), Florida Statutes; and in Count 3, that Respondent violated Section 1012.795(1)(i), Florida Statutes. 34. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude." 35. Section 1012.795(1)(f), Florida Statutes, provides that a teacher may be disciplined if he or she “has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.” 36. Section 1012.795(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she “[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” The Principles of Professional Conduct for the Education Profession in Florida (hereinafter referred to as the "Principles") are set out in Florida Administrative Code Chapter 6B-1.006. Having failed to reference any particular part of the Principles, it is assumed that the allegations of Count 4 are intended to refer to the actual portion of the Principles Respondent violated. Count 4 charges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a), which requires that teachers “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” 37. Given the parties’ stipulation that “Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint,” the only issue which remains to be decided in this case is the appropriate penalty. In recommending a penalty, however, the extent to which the facts stipulated to by the parties actually supports their stipulation as to the statutory and rule violations must be considered. In particular, the Commission should take into account that the facts actually do not support the conclusion that Respondent violated Section 1012.795(1)(c), Florida Statutes, the basis for the alleged violation in Count 1. 38. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992). 39. Florida Administrative Code Rule 6B-4.009(2) defines "immorality" as follows: Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. 40. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality": The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981). Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996). 41. Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows: Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. 42. The court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), observed that moral turpitude: involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. 43. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981). 44. The acts committed by Respondent in this case were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Respondent’s conduct, while inconsistent with the conduct expected of a teacher administering the FCAT, does not constitute an act ". . . which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society." 45. As for the violation of Section 1012.795(1)(f), Florida Statutes, while the parties have stipulated that Respondent's conduct reduced her effectiveness as an employee of the School Board, the facts show that the School Board has considered Respondent's effectiveness as an employee adequate to continue her in its employment and to continue allowing her to administer the FCAT. 46. While clearly inappropriate conduct on the part of the Respondent, her conduct barely constitutes a violation of the other statutory violation alleged in Count 3. Recommended Penalty. 47. Section 1012.795(1), Florida Statutes, gives the EPC the following disciplinary authority: The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, . . . provided it can be shown that the person [violated one of the subsections that follow]. 48. In its Proposed Recommended Order for Appropriate Penalty, Petitioner has requested that it be recommended that Respondent’s certificate be permanently revoked and that she be permanently barred from re-application. Respondent has requested that it be recommended that Respondent’s 30-day suspension by the Broward County School Board (hereinafter referred to as the “School Board”) serve as her penalty in this case. In the alternative, Respondent has suggested that a one- year period of probation be added to the already served suspension. 49. In deciding the appropriate penalty to recommend in this case, consideration has been given to Florida Administrative Code Rule 6B-11.007(3), which provides aggravating and mitigating circumstances to be considered in determining the appropriate penalty in a case such as this: (3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses; The length of time since the violation; The number of times the educator has been previously disciplined by the Commission. The length of time the educator has practiced and the contribution as an educator; The actual damage, physical or otherwise, caused by the violation; The deterrent effect of the penalty imposed; The effect of the penalty upon the educator’s livelihood; Any effort of rehabilitation by the educator; The actual knowledge of the educator pertaining to the violation; Employment status; Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation; Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served; Actual negligence of the educator pertaining to any violation; Penalties imposed for related offenses under subsection (2) above; Pecuniary benefit or self-gain inuring to the educator; Degree of physical and mental harm to a student or a child; Present status of physical and/or mental condition contributing to the violation including recovery from addiction; Any other relevant mitigating or aggravating factors under the circumstances. 50. Based upon the facts stipulated to by the parties, the following mitigating circumstances exist: the offense in this case is a single, isolated one; the actual danger to the public in this incident was minimal; it has been three years since the violation occurred (and in the interim, Respondent has continued to monitor the FCAT without incident); and Respondent has not been previously disciplined by the EPC. 51. The following aggravating circumstances have been shown to exist: Respondent actions deprived students of the educational process, likely resulting in the loss of school funding and hindering the school’s ratings; and a harsh penalty will send the message that Respondent’s conduct will not be tolerated. 52. Petitioner has argued that an additional aggravating circumstance is the failure of any evidence that Respondent has been rehabilitated. In particular, Petitioner has suggested that Respondent lacks any rehabilitation because she has “consistently accused other individuals, including the FCAT’s administrators and supervisors, for her misdeeds rather than accepting the blame.” Petitioner’s argument on this point must be rejected. First, there is no stipulated fact or any evidence that has been offered in this case to support Petitioner’s position. Secondly, Petitioner has failed to consider the fact that Respondent has agreed to the stipulated facts and law which form the basis of this Recommended Order. 53. Ultimately, in recommending a penalty in this case, the most important considerations in this matter should be the extent to which Respondent actually violated the provision alleged in the Administrative Complaint, which has been addressed, supra, and the action taken by Respondent’s employer, the School Board. 54. The extent to which Respondent actually violated the provisions alleged in the Administrative Complaint has been discussed, supra. 55. Just as significantly, the School Board, which, along with the parents and children it serves, suffered the actual harm of Respondent’s conduct, concluded that Respondent was adequately punished by a 30-day suspension rather than termination of her employment. The School Board, therefore, has indicated a willingness to continue to employ Respondent, something it will no longer be able to do if Petitioner’s recommended penalty is carried out. Nor will the School Board be able to continue Respondent’s employment if Petitioner were to suspend Respondent’s certificate for any period of time. 56. Given the School Board’s decision to continue to employ Respondent, any discipline taken by Petitioner should be limited to discipline which will not thwart the local government’s decision to continue to employ Respondent. A suspension of 30 days, considered already served at the time she served her School Board imposed suspension; five years probation; and a requirement that Respondent attend, at her own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered imposing the following penalty: (1) suspending her teaching certificate for 30 days, such suspension to be considered already served; (2) placing her on probation for five years subject to any conditions deemed appropriate by the EPC; and (3) requiring her to attend, at her own expense, any seminars or courses the EPC deems appropriate. DONE AND ENTERED this day 4th day April of, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2006.
Findings Of Fact During October, 1980, the staff of Polk Community College prepared a cost analysis for the 1979-80 school year in accordance with requirements imposed by the State Board of Education. One of the purposes of this annual cost analysis is to allow comparison of costs among community colleges. The cost analysis for the 1979-80 school year indicated that Polk Community College had high instructional costs per full-time student in comparison to other community colleges. The District Board of Trustees of Polk Community College accordingly requested that the college staff conduct further studies to examine the cost effectiveness of the instructional program. These further studies revealed that Polk Community College employs more full-time instructors in various academic fields than there are classes available for the instructors to teach. This situation is the apparent result of a shift in student demand. The psychology grouping of academic subjects is among those which has been overstaffed with instructional personnel at Polk Community College in recent years. When the number of instructional personnel available to teach in the psychology grouping is considered against an optimum class size of thirty- five students and compared to the number of students who actually took courses in the psychology grouping, it is apparent that the psychology grouping had .1 more faculty members than needed for the academic year which began in September, 1977; .8 more instructors than needed for the academic year which began in September, 1978; 1.2 more faculty members than needed for the academic year which began in September, 1979; and 1.8 more faculty members than needed for the academic year which began in September, 1980. Projections for the 1981 academic year indicate that the psychology grouping will again be overstaffed by 1.8 instructors. Overstaffing of instructional personnel such as has consistently occurred in the psychology grouping of academic courses results in several inefficiencies. In order that instructional personnel can carry full course loads as required by law, it is necessary to allow some courses to be taught with fewer students than is considered efficient. Alternatively, faculty members are given special projects to complete in lieu of teaching a course. These special projects have very little value to the community college. Furthermore, by maintaining excessive instructional staffs to teach academic subjects where student demand is decreasing, the college is unable to hire instructional personnel to teach subject areas where student demand is increasing. There has been an increase in student demand for courses in data processing at Polk Community College. The college administration desires to reallocate its resources to provide more faculty members to teach data processing courses rather than courses in psychology for which student demands have decreased. The administration has accordingly recommended to the college's District Board of Trustees that one psychology instructor be terminated. The Respondent, James E. Durant, IV, is a psychology instructor at Polk Community College. The college administration has recommended that his employment be terminated due to the overstaffing in the Psychology Department. In making this recommendation, the administration evaluated the Respondent vis- a-vis other psychology instructors in the following areas: the capacity of the faculty members to meet the educational needs of the community, including consideration of past and anticipated demand for courses and their cost effectiveness, and future curriculum needs; the efficiency of the faculty members as indicated by such factors as professional evaluations; the educational qualifications of the faculty members including their versatility, level of degree, field, and length of service; and whether the faculty members have a continuing contract or annual contract with the community college. The administration concluded that there were no significant differences among instructional personnel in the psychology grouping in the areas of future curriculum needs, educational qualifications and type of contract. This conclusion is supported by the evidence. It does not appear that curriculum needs within the psychology grouping are changing. All of the faculty members in the psychology grouping have either master's degrees or doctorates and have been employed at the community college for a lengthy period. All are on continuing contract. The administration contends that the Respondent is the least cost effective of the psychology instructors and that he has been the least efficient. The administration based its conclusion that the Respondent was the least cost effective of the psychology faculty members through an analysis of weak and cancelled sections that have been taught by psychology faculty members. Weak sections are those classified as having been taught with fewer than fifteen students. Cancelled classes are those for which there was so little student interest that a scheduled course was cancelled. There are several deficiencies with use of a "weak and cancelled section matrix" as a means of determining the cost effectiveness of an instructor. The fact that a class runs weak or must be cancelled can be the result of factors which would reflect favorably upon an instructor. For example, if an instructor develops experimental classes or teaches courses beyond the introductory sort, there is likely to be less demand for the courses, but the courses would have an important function in the community college curriculum. Furthermore, student demand for classes depends to some extent upon factors that are beyond the control of the instructor. Student demand for classes is high, for example, during certain times of the day and low during others. Classes are scheduled by the administration, and not by the instructors. Despite these deficiencies of considering weak and cancelled sections as evidence of poor cost effectiveness, it is appropriate to do that in this instance. For the 1977 through 1981 academic years, the Respondent had a total of 32 weak or cancelled sections. No other faculty member in the psychology grouping had more than 13 weak and cancelled sections during that period, and the four other faculty members combined had only 34 weak and cancelled sections. These figures establish that there is significantly less demand for courses taught by the Respondent than courses taught by other members of the psychology grouping, and that he is therefore the least cost effective instructor within the grouping. The administration's contention that the Respondent is the least efficient instructor within the psychology grouping is supported by the evidence. The Respondent has consistently received the lowest supervisory and student evaluations of instructors within the psychology grouping since the 1975 academic year. Furthermore, there have been more student complaints lodged with respect to the Respondent than for all other members of the psychology grouping combined. The large number of student complaints resulted in remedial action being taken with respect to the Respondent during the 1979 academic year. The Respondent's classes were monitored more closely than is usual, and the number of complaints was reduced for a short period. During the 1980 academic year, however, the large number of student complaints has persisted. Typical student complaints have been that the Respondent is not accessible to answer questions, and that he degrades students by making them wait for inordinate periods outside his office or classroom. While it does appear that the Respondent is trained to teach courses outside of the psychology grouping, it appears that he has taught primarily psychology courses for a number of years. The evidence would not sustain a conclusion that he is qualified to teach in areas where there is a need for instructional personnel. The Respondent has contended that he is qualified to teach mathematics and French; however, there is no competent evidence in the record to support these contentions. The Respondent has contended that inappropriate factors were considered by the administration in recommending that he be terminated. He contends that the reasons given by the administration for terminating him are actually a subterfuge, and that the administration is seeking to terminate him because of the Respondent's political activities, and because of his views on controversial subjects. These contentions are not supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the District Board of Trustees of Polk Community College enter a final order accepting the recommendation that the Respondent, James E. Durant, IV, be terminated from his position as an instructor of the community college, and that the Respondent be terminated effective at the conclusion of the 1980-81 academic year. RECOMMENDED this 29th day of July, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1981. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell, Boswell & Conner Post Office Box 1578 Bartow, Florida 33830 Dr. James E. Durant, IV 2605 Reef Court Orlando, Florida 32805 Mr. Frederick T. Lenfestey President Polk Community College 999 Avenue H, Northeast Winter Haven, Florida 33880
