The Issue Whether Respondent's license as a real estate salesperson in the state of Florida should be revoked, suspended or otherwise disciplined based on the allegations of misconduct alleged in the Administrative Complaint.
Findings Of Fact Upon consideration of the testimony of the witness and the documentary evidence received as evidence in this case, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the state of Florida, having been issued license number 0569982. Respondent was initially licensed in December 1990. The last license issued to Respondent was as a salesperson, c/o Tangerine Realty Corporation, 390 Gulf of Mexico Drive, Longboat Key, Florida 34228. Respondent is also a licensed real estate broker in the state of South Carolina, with thirteen (13) years experience, where she operates Linda McKenzie Realty Company. On or about August 24, 1992, the Respondent submitted to the Petitioner a Renewal Notice form with her signature affixed to the form requesting renewal of the Respondent's license as a real estate salesperson for the period beginning October 1, 1992. Along with license renewal request, Respondent enclosed her bank check in the sum of $53.00. Respondent's signature on the Renewal Notice (Petitioner's Exhibit 2) affirms that she had read and agreed with the statements made on the reverse side of the notice. However, it is clear that due to circumstances set out below requiring her immediate attention, the Respondent did not read the reverse side of the Renewal Notice and did not understand the significance of affixing her signature to the affirmation. In that regard, the Respondent was negligent. The reverse side of the Renewal Notice is entitled "Affirmation of Eligibility For License Renewal" and among those matters which the Petitioner affirmed is that she "met all of the requirements for license renewal, including any applicable continuing education requirements set forth by the Department and or the Professional Board indicated on the reverse side of this notice". The Department of Professional Regulation, Division of Real Estate is indicated on the front of the Renewal Notice. There is no specific reference to any statute or rule on the Renewal Notice. Apparently, this is a form utilized by all Professional Boards for which the Department is the regulatory agency. Respondent was aware at the time she signed and mailed the Renewal Notice containing the affirmation that she had not completed the required postlicensure salesperson continuing education. Respondent's license as a real estate salesperson was reissued by the Respondent prior to the September 30, 1992 expiration date with an effective date of October 1, 1992. Respondent was scheduled to take the 45 hour course necessary to complete postlicensure salesperson education during the weeks of August 14, 1992 and August 21, 1992. However Respondent had to cancel this course due to her medical condition as discussed below. Respondent was seen in Charleston, South Carolina on August 3 & 4, 1992 and diagnosed as having a tumor requiring surgery. Respondent was scheduled to be admitted to surgery for a suspected malignancy on August 17, 1992 in Charleston, South Carolina but instead obtained a second opinion in Sarasota, Florida. Emergency exploratory surgery for an ovarian tumor was performed on August 21, 1992 in Sarasota, Florida. Respondent underwent surgery on August 25, 1992 to remove a serous cystadenofibroma of the right ovary. This surgery was not of an elective nature. Prior to surgery, Respondent attempted to take care of personal matters that she felt needed immediate attention. One of those matters was the Renewal Notice. It was Respondent's understanding that she would have until September 30, 1992 (expiration date of current license) to complete any postlicensure education. Therefore, after returning from surgery Respondent enrolled in a September 11, 1992 course. Respondent was notified on September 9, 1992 that the course was cancelled. Thereafter, Respondent enrolled for the November 18, 1992 course which was cancelled on November 17, 1992. Respondent advised the Petitioner by letter dated September 16, 1992 that she had been unable to complete her postlicensure education. In this letter Respondent requested an extension of time until at least December 1992. Respondent did not receive any response from Petitioner to this request for extension. Respondent enrolled in a course to complete her postlicensure education on November 30, 1992, completed that course on December 4, 1992 and advised the Respondent of her completion by letter dated December 6, 1992. There is competent substantial evidence in the record to establish facts to show that at the time Respondent signed and mailed the Renewal Notice to Petitioner it was not Respondent's intent to give false or misleading information or to conceal the fact that she had not completed the required postlicensure educational requirements, notwithstanding the fact that her signature affirmed that she had completed the required postlicensure educational requirements. Respondent's license as a real estate salesperson in the state of Florida has never been disciplined in any fashion by the Petitioner. The public was not harmed as a result of Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent. In making this recommendation, consideration has been given to the mitigating factors in relation to the disciplinary guidelines set out in Chapter 21V-24, Florida Administrative Code. Also, taken into consideration was the purpose of regulating any profession, the protection of the public by requiring compliance with those laws governing the profession. In this case, a reprimand will serve that purpose, the public has not been hurt, compliance has been accomplished and the penalty is sufficient to remind the Respondent to be more diligent in the future. Adding any further penalty, including an administrative fine, would be punitive. DONE AND ENTERED this 30th day of September, 1993, in Tallahassee, Florida. WILLIAM R. CAVE 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 30th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1943 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: 1. Unnecessary. 2.-5. Adopted in substance as modified in Findings of Fact 2-15. Respondent's Proposed Findings of Fact: Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate Legal Section, Suite N 308 400 West Robinson Street Orlando, Florida 32801-1772 Linda B. McKenzie 343 South Washington Drive Sarasota, Florida 34236
Findings Of Fact Based upon the evidence submitted, the following facts are determined: On August 29, 1979, John A. Hall filed with the DEPARTMENT an application for a Florida teaching certificate. Official records indicate that HALL was convicted and found guilty of assault to commit murder in the second degree on November 19, 1970. He was sentenced to 13 1/2 years in the State Prison, and released on a two-year parole in 1977. (R.E. 1.) On January 4, 1980, HALL was employed as a substitute teacher at Beasley Middle School in Palatka, Florida. The only qualifications for being employed as a substitute teacher in Putnam County are that the individual be of age and hold a high school diploma. At his request, HALL's name had been placed on the Beasley Middle School list of available substitutes although it does not appear that anyone at the school was acquainted with him. (Testimony of Meredith Barker.) On January 4, 1980, Harry Willis was a 13-year-old student in the seventh grade math class where HALL was assigned as a substitute teacher. HALL saw him in the back of the room, told him to go to his seat, and pushed him into his chair. When the bell rang, Harry got up and tried to go out the door. HALL told him he wasn't going anywhere, pushed him back, and struck him in the jaw with his fist. Harry pleaded with him to let him go and, finally, pushed him out of the way as he rushed to the principal's office. It took several hours for Harry, with the support of the principal and assistant principal, to regain his composure; he was visibly shaken by the incident. He had never been a disciplinary problem at the school. (Testimony of Ivey, Barker, Lamoreaux). HALL was directed to report to the office of the school principal, Meredith Barker. There, he admitted striking Harry, but defended it was necessary to "uphold discipline." He said he wanted to apologize to Harry and return to his class. Ms. Barker, however, dismissed HALL, telling him to gather his belongings and leave the school grounds. HALL's effectiveness as a teacher at Beasley Middle School has been seriously reduced due to the notoriety of the incident and the expressed desire by parents that he not be allowed to teach there again. (Testimony of Barker.) Immediately prior to the opening of hearing, HALL informed counsel for the DEPARTMENT that the hearing could be cancelled since he was withdrawing his application for a teaching certificate; HALL then abruptly left the hearing room. However, since HALL's statement was not made in writing or on the record, Respondent asserted that the application remained in effect and requested that the hearing be conducted, as scheduled.
Conclusions Petitioner failed to establish entitlement to the requested teaching certificate; moreover, the Respondent Department established two grounds for denial of Petitioner's application: (1) his conviction of a felony, and (2) his having engaged in personal conduct which seriously reduces his effectiveness as an employee of the school board. Petitioner's application for a teaching certificate should, therefore, be DENIED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That John A. Hall's application for a Florida teaching certificate be DENIED. DONE AND ORDERED this 20th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1980.
The Issue The issues presented to the Administrative Law Judge for resolution in this case were: Whether it is necessary for Petitioner, Marcella Mika, to go to law school to return to suitable gainful employment. Whether the provisions of Section 440.491, Florida Statutes (1995), apply to Petitioner. Whether the provisions of Florida Administrative Code Rules Chapter 38F-55 apply to Petitioner. Whether Respondent is required to reimburse Petitioner for tuition and the reasonable costs of board and lodging for Petitioner's attendance at Stetson University College of Law.
Findings Of Fact Petitioner's Injury and Recovery On January 24, 1991, Petitioner sustained a compensable injury within the course and scope of her employment with her employer, Community Dialysis Center. Petitioner was diagnosed as sustaining acetabular fracture of the left hip with residual sciatic neuropathy and cervical injury as a result of tripping and falling over a telephone cord. On or about January 7, 1993, Petitioner reached maximum medical improvement with the following physical capabilities: Petitioner can work full-time. Petitioner can drive an automobile with an automatic transmission. Petitioner can drive 30 minutes to an hour at one time and a total of 2-3 hours in a work day. Petitioner can walk 5-10 minutes at one time and a total of 1-2 hours in a work day. Petitioner can stand 5-10 minutes at one time and a total of 1-2 hours in a work day. Petitioner can sit 2-3 hours at one time and a total of 6-8 hours in a work day. Petitioner can lift/carry/push/pull up to twenty pounds (20 lbs.) occasionally up to 1/3 of a work day. Petitioner cannot lift/carry/push/pull more than twenty pounds (20 lbs.). Petitioner can bend frequently for 1/3 to 2/3 of a work day. Petitioner can twist frequently for 1/3 to 2/3 of a work day. Petitioner cannot stoop or squat. Petitioner can kneel occasionally up to 1/3 of a work day. Petitioner cannot crawl. Petitioner cannot climb stairs or ladders. Petitioner can reach above her shoulder constantly for 2/3 or more of the work day. Petitioner can reach across a desk/counter constantly for 2/3 or more of the work day. Petitioner can reach below her waist constantly for 2/3 or more of the work day. Petitioner can grasp/finger with her left and right hand constantly for 2/3 or more of the work day. Petitioner can operate foot controls frequently and up to 1/3 to 2/3 of a work day. Petitioner's Education and Employment History Petitioner has earned an Associate in Applied Science degree in Nursing from Northern Virginia Community College awarded on or about June 9, 1973. From 1973 until her work-related accident on January 24, 1991, Petitioner worked as a registered nurse. Petitioner earned approximately $782.65 weekly and received fringe benefits valued at approximately $41.65 weekly. From 1981 through 1985, Petitioner was employed with Woodbridge Manassas Dialysis Center as a Systems Manager/Charge Nurse. From September 1987 until June 1989, Petitioner was employed as a utilization review specialist with Florida Employers Insurance Service Company earning approximately $23,000 to $27,000 per year. Following her accident, Petitioner returned to work with the Community Dialysis Center at her convenience for 5-6 hours per week earning fourteen dollars ($14.00) per hour from April 15, 1992, until January 31, 1994. At that time, the Community Dialysis Center closed and ceased doing business in Petitioner's area of residence. From September 1994 until May 1996, while pursuing a bachelor of arts degree at the University of South Florida (USF), the Petitioner was employed in a USF work study position, seven to ten hours per week, earning five dollars ($5.00) per hour. Petitioner earned a Bachelor of Arts degree in Interdisciplinary Social Sciences from the University of South Florida awarded in May 1996. Petitioner's Request for Screening On or about February 7, 1995, the District "M," Office of the Judges of Compensation Claims, Judge Joe Willis, entered an Order approving the Petitioner's settlement with her employer, Community Dialysis, and the carrier, Liberty Mutual Insurance Company. Petitioner settled her benefits with Liberty Mutual for $75,000, purportedly pursuant to Section 440.491(6)(b), Florida Statutes (1995). Paragraph 8 of the settlement agreement specifically provided: "The Employee shall also retain the right to apply to the Division of Workers' Compensation for appropriate training and education under Section 440.491(6)(a), Florida Statutes " On or about December 21, 1995, Petitioner submitted a request for screening on form DWC-23 to the Respondent. The Respondent conducted a screening and concluded that Petitioner has transferable skills and therefore it was not necessary to refer Petitioner for a vocational evaluation, nor provide training and education, to return Petitioner to suitable gainful employment. On May 16, 1996, the Petitioner filed a Petition for Hearing. The Petition for Hearing advised that the Petitioner had been accepted by the Stetson University College of Law for the Fall 1996 semester and indicated her desire to pursue a career in law with the assistance of the Workers' Compensation Trust Fund. Petitioner's Law Studies On or about August 1996, Petitioner began to study law at the Stetson University College of Law. Petitioner is currently working towards a Juris Doctor degree. Petitioner has completed two semesters at Stetson University College of Law. The program leading to the Juris Doctor degree consists of five semesters and two summer school sessions. Tuition per semester at Stetson University College of Law is nine-thousand-one-hundred-dollars ($9,100.00), and four- thousand-six-hundred-dollars ($4,600.00) for each summer school session. Stetson University College of law is approved by the American Bar Association, the American Association of Law Schools, and the Southern Association of Colleges and Schools. Petitioner was prohibited by Stetson University College of Law from working during her first year of law school. Petitioner does not intend to work or look for employment while attending Stetson University College of Law. Petitioner's Employability and Need for Retraining Petitioner is forty-seven years old. Petitioner has transferable skills which would allow her to return to suitable gainful employment in nursing within the physical restrictions resulting from her injury. These skills derive not only from her education (Associate in Applied Science degree in Nursing, and Bachelor of Arts degree in Interdisciplinary Sciences), but also from her work history and previous occupation as a Registered Nurse. The Petitioner does not require additional education at Stetson University College of Law to return to suitable gainful employment. There are nursing positions available within Petitioner's physical restrictions for which Petitioner is qualified. The Petitioner's vocational evaluation and vocational rehabilitation expert, Dr. David Heaston, testified that the Petitioner cannot return to the wages she was earning at the time of her accident without rehabilitation or retraining. Dr. Heaston stated that the maximum salary that the Petitioner could return to without any type of rehabilitation or retraining was approximately $28,000 to $30,000. Dr. Heaston also testified that the Petitioner would be able to work within her physical limitations and restrictions as a sole practicing attorney (or under a similar arrangement so that she could maintain could control over her work environment, conditions, and hours). Dr. Heaston testified that, after receiving a Juris Doctor degree at the Stetson University College of Law, the Petitioner would be able to earn approximately $38,000 to $40,000. But that is far from a certainty. Even assuming that a Juris Doctor from Stetson would enable the Petitioner to earn $38,000 to $40,000 in the sole practice of law, it is not clear that those dollars could be earned immediately; licensure will take a certain amount of time after graduation, and it is reasonable to believe that it would take additional time after licensure to build such a sole practice. It is not clear that the Petitioner would be able to achieve earnings as high as her earnings at the time of her accident more quickly by completing law school and starting a law career than she would by seeking employment in the nursing field at this time and working to earn promotions and raises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Division of Workers' Compensation, enter a final order denying the Petitioner's request for payment of her expenses incurred in attending the Stetson University College of Law. RECOMMENDED this 23rd day of October, 1997, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997. COPIES FURNISHED: Christopher B. Young, Esquire Riden, Earle and Kiefner, P.A. 100 Second Avenue South Suite 400, North Tower St. Petersburg, Florida 33701 Michael G. Moore, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of October, 2003.
The Issue The issue is whether Respondent committed misconduct in office by applying for credential payment in reliance upon an online doctorate degree obtained without academic effort and thus violated Section 1012.33(6)(b), Florida Statutes, and Florida Administrative Code Rules 6B-4.009(3) and 6B-1.006(5).
Findings Of Fact Respondent is an assistant principal at Toussaint L'ouverture Elementary School in Miami. He graduated from the United States Naval Academy in Annapolis, Maryland, in 1978. While serving in the military in Pensacola, Respondent obtained a master's degree from Troy State University in 1985 by way of its extension program. Respondent is 54 years old. In 1994, when first employed as a teacher in the Miami- Dade County public school system, Respondent was admitted to the doctoral program in education leadership at the University of Miami. He attended classes a couple of times per week per course and submitted tuition reimbursement vouchers to Respondent. Respondent left that program the following year without completing the requirements for a doctoral degree. In 1996, Respondent reviewed brochures that he had received in the mail and decided to pursue his doctorate degree at Northwestern University, Ltd. He sent Northwestern International University, LLC, (NW) a check for about $8000 to a post office box in Brussels, but did not seek reimbursement from Respondent. For some reason, Respondent also decided to obtain a doctorate degree from Northeastern University (NE) and sent them a check for about $7000 to a post office box in New York, but again did not seek reimbursement. Respondent testified that he believed that he had already obtained the maximum reimbursement available to him. Respondent engaged in academic activities with both institutions from 1996-2000, but the activities did not rise in scope or intensity to those associated with a legitimate doctoral program. In 1998, Respondent applied for an assistant principal position, omitting any mention of his academic activities with NW and NE. He obtained the job. In 2000, Respondent completed his academic activities with NW and NE. NW sent him a transcript showing the completion of 19 courses and the Ph.D. dissertation, with grades assigned to each. Only one typo undermines the credibility of the transcript itself: the second "i" is dropped from "Administration" in a human resources course, but the transcript omits dates for the courses. Respondent received very good grades with only one C and A+s in Education Program Evaluation and his dissertation. Less care went into the preparation of the NE transcript, which also appears to culminate in the award of a Ph.D. "Curriculum" is spelled "Cirriculum, ""Philosophy" is spelled "Philosphy," and "Evaluation" is spelled "Evaluaton." The NE envelope covering the transcript misspelled "transcript." Respondent received all As and Bs. Shortly after obtaining his dual doctorates, Respondent submitted them to Petitioner. The credential payment program for administrators went into effect in April 2006, so Respondent's motivation at the time that he submitted the transcripts was to obtain the prestige, and perhaps advancement, that went with the advanced degrees. However, on June 8, 2006, Respondent submitted an application for the credential pay increment due to an administrator in possession of a relevant, legitimate doctorate degree. In the application, Respondent stated that he possessed a Ph.D. from NE, which he had obtained in 2000. He signed the application beside a statement, "I certify that all the foregoing information is true to the best of my knowledge." Respondent claims that he submitted papers, including dissertations, in connection with both programs, but offered no detailed description of his academic activities. Instead, he seems to be "sticking to his story" that he thought he was completing coursework from legitimate educational institutions, even though it is indisputable that he did not. At all material times, Respondent has known that NE and NW were diploma mills. He never explained why he spent the money and, presumably, time pursuing doctorate degrees at both institutions over the same timeframe. He is aware of the rigor of legitimate programs, having attended the Naval Academy, Troy State, and University of Miami. Respondent was undaunted by the sloppiness apparent in the transcripts. He claims now that, "[i]f there is any fault, in this matter, it is one of trusting the advertisements that I saw, brochures I received and the syllabi, course work and transcripts I received from the [sic] non-accredited institution." However, it is inescapably apparent that there was fault, and the fault is that Respondent, with the intent to deceive Petitioner, submitted these transcripts and a fraudulent application for credential pay, to which Respondent knew he was not entitled. There is no testimony explicitly to the effect that Respondent's fraudulent application for credential pay is so serious as to impair his effectiveness in the school system. However, this fact is inferred from the nature of a fraudulent application, to Respondent's professional employer, for credential pay based on fraudulently obtained academic credentials. After a conference for the record, Petitioner proceeded to discipline Respondent for his misconduct. By letter dated December 10, 2007, Petitioner informed Respondent that the Superintendent would be recommending to the School Board suspension without pay for "30 workdays," effective at the close of the workday on December 19, 2007. The School Board subsequently approved this recommendation and, by letter dated December 20, 2007, the Assistant Superintendent informed Respondent that he was suspended for "30 workdays" without pay and he was not to report to any work location from December 20, 2007, through February 13, 2008. The penalty is not excessive. At the final hearing, Respondent elected not to admit to his misdealings with his employer, but instead produced exculpatory witnesses, one of whom testified that she had done some typing for him and one of whom testified that he had seen the damage done to Respondent's home by a hurricane and a lot of water damage to Respondent's belongings. Respondent has evidently not yet accepted responsibility for his misconduct. Respondent rightly questions the accuracy of the Assistant Superintendent's calculation of the period of the suspension, which was to cover "30 workdays." Equating workdays with days for which Respondent was to be paid, Respondent claims that the suspension actually covers 40 workdays, not 30 workdays. The Manual of Procedures of Managerial Exempt Personnel, dated April 18, 2006, states at Section B-3 that a 12-month employee works a 260-day work year. This means that he works 52 weeks times five days per week, for a total of 260 days. Respondent's suspension started December 20, so, in accordance with the determination of the School Board, the suspension should have ended at the close of the workday on January 30.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of misconduct in office for intentionally misrepresenting his academic qualifications in applying for credential pay for a doctorate degree and imposing a 30-workday suspension, as previously authorized by the School Board, but paying Respondent back pay for the period after January 30 through which the suspension was mistakenly implemented. DONE AND ENTERED this 9th day of May, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 9th day of May, 2008. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 James C. Casey, Esquire Law Offices of Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134 Janeen L. Richard, Esquire Miami-Dade County School Board Attorney's Office 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact On August 7, 1983, the Petitioner, accompanied by two companions, a male and female, entered the Richway Department Store at 1941 South Military Trail in West Palm Beach, Florida. The male approached the store's service desk and attempted to obtain a refund for some silverware. Previously, the store security manager, Art Riggott, had been informed by telephone call from another local Richway Store that if two black females and a black male attempted to obtain a refund for silverware at his store, a refund should be refused. When Mr. Riggott advised the male that a refund for the silverware could not be issued without a receipt for its purchase, he left the silverware on the service desk counter and exited the store. While the two women were in the store, Mr. Riggott and another security officer kept them under surveillance. In the ladies wear department, they placed several articles of clothing in a carriage, including two women's jackets, and continued through the store, placing several other articles of merchandise in the carriage also. In the domestic department, the Petitioner was observed as she put the two jackets in her purse. The women then left the carriage in an aisle with the other merchandise in it, and exited the store. Outside, they rushed toward a red car parked at the curb, which was driven by the male who had sought the refund for silverware. The Petitioner was arrested. The other woman was able to get into the car before it sped off with one door open. The Petitioner was taken to the store office where her purse was opened and the two women's jackets were removed. The jackets had Richway price tags on them. They had been received by the Richway Store only two days before. When the Petitioner failed to appear at her scheduled court appearance, a bench warrant was issued for her arrest. She did appear at a subsequent hearing on January 20, 1984, and entered a plea of no contest to the offense of retail theft. The court withheld adjudication of guilt, ordered the Petitioner to pay a fine of $90.00, and rescinded the outstanding bench warrant. The Petitioner paid the fine. In 1985, after graduating from college, the Petitioner applied to the Dade County School Board for a teaching position. On her application, the Petitioner answered "no" to the question "Have you ever been convicted, fined, imprisoned or placed on probation in a criminal proceeding?" On this application, the Petitioner also certified that the information she provided was true, correct and complete to the best of her knowledge and belief, and that the information was furnished in good faith. The application includes the statement that any omissions or false statements will constitute reason for dismissal. The Petitioner was hired and worked during the 1985-1986 school year, but she was dismissed from this position when school officials learned of her criminal prosecution and the false statements on her employment application. On April 9, 1986, the Petitioner applied to the Department of Education for a Florida teaching certificate. On this application, the Petitioner answered "no" to a question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Because the results of a routine fingerprint check by the Florida Department of Law Enforcement disclosed that the Petitioner had been arrested and prosecuted for shoplifting in August of 1983, the Petitioner's application was denied. On November 26, 1986, the Petitioner filed another application for a Florida teaching certificate. On this application the Petitioner disclosed that she had been arrested in West Palm Beach for shoplifting on August 3, 1983, and that adjudication of guilt was withheld. The Petitioner's falsification of her applications for employment and for a teaching certificate are acts of extreme dishonesty and conduct which would seriously reduce her effectiveness as an employee of the school system. Such conduct violates the Principles of Professional Conduct for Educators, and is unacceptable for members of the teaching profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Cherry D. Cornelius for a Florida teaching certificate, be denied. THIS RECOMMENDED ORDER entered this 2nd day of April 1987 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 2nd day of April 1987. COPIES FURNISHED: Ms. Cherry D. Cornelius 231 S.W. 15th Avenue Delray Beach, Florida 33444 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Karen Barr Wilde Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Department of Education 319 West Madison Street Room 3 Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Gary L. Wheeler, Respondent, is a graduate of Bob Jones University, having received a Bachelor of Science degree therefrom in accounting in 1974. On July 27, 1979, Respondent received his California certificate as a certified public accountant. Thereafter, Respondent filed an application to obtain a reciprocal C.P.A. certificate in Florida based on his certificate issued by the State of California (Certificate No. E-28234). His application was denied by the Petitioner on October 26, 1979, for the following reason: Applicant failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, inasmuch as the license issued to Gary L. Wheeler in California is not issued under criteria substantially equivalent to that in effect in Florida at the time the California license was issued. Bob Jones University was not recognized as an accredited university in Florida by the Board when Respondent received his California certificate inasmuch as it was not listed among the institutions of postsecondary education by the Council on Postsecondary Accreditation (COPA). During September, 1976, Petitioner adopted the COPA list of schools as the schools from which it would accept graduates to sit for its examination. This was done for the avowed purpose of ensuring minimum competence and technical fitness among the ranks of Florida accountants. Douglas H. Thompson, Jr., the Petitioner's Executive Director since 1968, is the Board's chief operating officer and carries out its functions respecting applications for licensure. As such, Mr. Thompson was the person charged with examining Respondent's application pursuant to his California certificate to determine whether the Respondent's certificate was issued under criteria "substantially equivalent" to Florida's licensing criteria. Respondent's application was considered by the Board on two (2) occasions and rejected because Respondent's alma mater, Bob Jones University, is not listed among the accredited schools and universities by COPA. See Sections 473.306; 473.307 and 473.308, Florida Statutes, as amended; and Chapter 21A-28.06, Florida Administrative Code. As an aside, it was noted that the Board, in adopting its procedure for evaluating the criteria for applicants who were seeking to obtain certificates based on the reciprocal qualifications guidelines also adopted other equivalency procedures which provide Respondent an alternative method for which he may obtain a Florida certificate. In this regard, Respondent is only approximately six (6) quarter hours away from obtaining his certificate under the alternative equivalency procedures established by the Board. See Chapters 21A-9.01 through 9.04(4), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's appeal of the Board's action in denying his application for a reciprocal license to practice public accounting based on the issuance of his California certificate be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of March, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether the School Board has just cause to terminate Respondent’s employment.
Findings Of Fact Respondent has worked for the Polk County School District (District) in various capacities –- e.g., classroom teacher, physical education instructor, dean of students, assistant principal –- for the past 20 years. Respondent has been an assistant principal for the past 11 years, and at the time of the suspension giving rise to this proceeding, he was an assistant principal at Homer K. Addair Career Academy. Respondent has a Master’s degree in educational leadership from Nova Southeastern University (Nova), and he is certified in that field by the Florida Department of Education (DOE). Respondent is in the District’s “principal pool,” which is the program from which principals are selected for the District’s schools. He has also served as a “teacher recruiter” for the District. Respondent and another assistant principal, Jennifer Dean, started talking about pursuing doctorate degrees together at some point between the summer of 2004 and April 2005.1 Respondent and Ms. Dean are neighbors and close friends. They attend the same church, and their families regularly spend time together. Ms. Dean is the Respondent in the related DOAH Case No. 06-0683. The primary reason that Respondent and Ms. Dean were interested in obtaining doctorate degrees was to enhance their standing in the principal pool so as to give themselves a better chance of being hired as school principals.2 Respondent also believed that a doctorate degree would help him get a teaching position at a college or university. Respondent and Ms. Dean credibly testified that they were unaware that they would be eligible for $1,750 pay supplements from the District if they had doctorate degrees. Respondent and Ms. Dean looked into the doctoral program at Nova and several other traditional universities in the area, but they determined that those programs were not suitable for their needs because of the cost of the programs and the time that it would take them to obtain degrees. Respondent looked into several online universities that offered doctoral degrees, including Belford University (Belford). He learned about Belford through a “pop up” advertisement while he was browsing on the Internet. In September 2005, Respondent sent Ms. Dean an e-mail referring her to Belford’s website and told her that “I think this may be the program for us.” Belford is described on its website as a “virtual university with administration offices located in Humble, Texas,” and according to the website, Belford is accredited by “two renowned accreditation agencies on-line education, namely the International Accreditation Agency for Online Universities (IAAOU) and the University Council for Online Education Accreditation (UCOEA).” Notwithstanding Belford’s accreditations and its characterization of itself as a “virtual university,” Belford’s website includes a number of statements that call into question its legitimacy as an educational institution, such as: “Get a degree for what you already know!”; “No admissions. No attendance. No hassle.”; “Add degrees to your resume in just 7 days and open avenues to promotion and better jobs!”; and “Get all your money back if you do not get approved!” The website explains that to obtain a doctorate degree from Belford, an applicant must have “at least 8 years of work or life experience relevant to [his or her] desired major.” That eligibility requirement “may be satisfied in any of the following ways: prior job experience in any field; previous educational achievements; employer-sponsored training and attendance of workshops; participation in organizations, both professional and non-professional; personal goals, lifestyle, hobbies, and travel; participation in volunteer activities and community service; and independent reading, viewing, listening or writing.” A doctorate degree can be received from Belford “without attending classes or taking admissions anywhere.” Respondent reviewed the information on Belford’s website, and he also contacted Belford by phone to get additional information about its doctoral program and its accreditation status. When he called Belford, Respondent was told that its degrees were accepted “worldwide” but he was told that information as to whether Belford’s degrees were accepted in Florida was “confidential.” Ms. Dean told Respondent that she contacted Lois Schuck, the District’s certification specialist, regarding whether a doctorate degree from Belford would be accepted for certification purposes. Respondent did not have any direct communications with Ms. Schuck on the issue. Respondent relied on Ms. Dean’s representation that Ms. Schuck told her to go ahead and get the degree from Belford and then submit it for a determination as to whether it would be accepted for certification purposes. However, as detailed in the Recommended Order in DOAH Case No. 06-0683, the evidence was not persuasive that Ms. Schuck actually gave Ms. Dean that advice. On or about November 10, 2005,3 Respondent applied for a doctorate degree from Belford by filling out the form on Belford’s website. In the boxes provided on the form, he entered information detailing his education, work, and other life experiences. The information Respondent provided to Belford included his resume, a five-page summary of his life experiences, and the materials that he put together as part of the application process for the principal pool. He did not submit transcripts or other official evidence of his Bachelor’s or Master’s degrees to Belford. Respondent did not attend any classes at Belford, nor did he prepare or defend a dissertation in order to obtain his doctorate degree from Belford. He received the degree based solely on the package of information described above. Respondent testified that the information that he submitted to Belford to obtain his degree accurately reflected his education, work history, life experiences, and other qualifications. The School Board offered no evidence to the contrary and, indeed, its witnesses acknowledged that they had no reason to believe that the information Respondent submitted to Belford was inaccurate.4 Respondent obtained the base-level doctorate degree, which according to Belford’s website costs $549. The degree was issued to Respondent within two weeks of the time that he applied for it, and Respondent was not required to pay for the degree until he was advised by Belford that he would receive the degree based upon the information submitted. A traditional doctorate degree, such as a Ph.D., takes several years to receive, costs thousands of dollars, and involves extensive coursework as well as the preparation and defense of a lengthy dissertation. Respondent’s “official transcript” from Belford reflects that he was awarded a Doctor of Arts degree with a major in educational administration on November 10, 2005. The transcript makes no reference to the fact that the degree was based upon “life experiences” rather than a traditional course of study. Respondent’s transcript includes a grade point average (GPA) of 3.18. Unlike Ms. Dean, Respondent was not interested in a higher GPA, which cost more money. Respondent’s transcript lists eight courses with specific grades -- from “A” to “C+” -- awarded for each course. Respondent testified that he did not attend those courses, and that it was his understanding that the grades shown on the transcript were based upon the information that he submitted to Belford, which reflected the extent of his experience in the areas identified in the course descriptions. On November 29, 2005,5 Respondent and Mr. Dawson met with Ms. Schuck to give her copies of their Belford transcripts for certification purposes. Ms. Schuck was unable to process the transcripts for certification purposes at that time because they did not include the date that the degrees were awarded. She handed the transcripts back to Respondent and Ms. Dean during the meeting and advised them to get her dated transcripts.6 Respondent and Ms. Dean obtained dated copies of their transcripts from Belford, and Ms. Dean sent them to Ms. Schuck through interoffice mail. Ms. Dean testified that she called Ms. Schuck to confirm that she received the degrees and to check on their status. Ms. Dean testified that Ms. Schuck told her that she had received the degrees and that she had given them to Ms. Butler for processing. Ms. Dean passed that information along to Respondent. Ms. Dean’s testimony regarding her conversation with Ms. Schuck was not persuasive. Indeed, the more persuasive evidence establishes that Ms. Schuck never received the dated transcripts, but rather that they were received by Pam Merritt, an administrative assistant in the District’s personnel office. Ms. Merritt put the transcripts in Judy Butler’s in- basket for processing. Ms. Butler’s responsibilities include processing salary changes for District staff. Ms. Butler is not responsible for reviewing transcripts or degrees for certification purposes. That review is done by the District’s certification office and is supposed to occur prior to the transcript or degree being forwarded to the personnel office for purposes of a salary change. Ms. Butler assumed that Ms. Dean’s degree was in her in-basket for purposes of a salary change even though there was no cover letter or other directions with the transcript. She did not see Respondent’s transcript because it had somehow gotten affixed to Ms. Dean’s transcript. Ms. Butler placed Ms. Dean’s salary change on the agenda for the Salary Classification Committee (SCC), and on January 26, 2006, the SCC approved a $1,750 salary supplement for Ms. Dean based upon her Belford doctorate degree. On January 28, 2006, Ms. Butler discovered Respondent’s transcript as she was pulling apart the documents from the SCC meeting for inclusion in a package for the Superintendent to review. On that same date, she e-mailed Respondent congratulating him on the award of his degree and advising him that his degree would be placed on the agenda for the SCC’s next meeting “so that [Respondent] can begin getting the supplement of $1,750.” Respondent assumed from this e-mail (and the representations given to him by Ms. Dean) that the salary change was being processed because his degree had been reviewed by Ms. Schuck and that it had been accepted for certification purposes. However, as noted above, Ms. Schuck had never received the degree. Ms. Butler sent a copy of the e-mail to David Lauer, the District’s assistant superintendent for human relations. Mr. Lauer received the e-mail on January 31, 2006, when he returned to the office. Mr. Lauer knew Respondent, and he was surprised to learn that he had obtained a doctorate degree. He asked Ms. Butler to give him the documentation related to Respondent and Ms. Dean, which she did. Mr. Lauer reviewed the Belford website for approximately 45 minutes and determined that it was a “diploma mill” and that the doctorate degrees obtained by Mr. Dawson and Respondent were “bogus.” Mr. Lauer also spoke with Ms. Schuck and asked her to determine whether Belford is an accredited university for DOE certification purposes. Ms. Schuck did so by e-mailing Mandy Mims, her contact at DOE. Ms. Mims advised Ms. Schuck that “Belford is not accredited by any agency recognized by the U.S. Dept. of Education, so degrees earned would not be appropriate for certification purposes.” Mr. Lauer was “flabbergasted” by the situation, and because he considered the submittal of bogus degrees to be “so serious and so contrary to what we believe in as educators,” he went directly to the Superintendent, Dr. Gail McKinzie, instead of first speaking to Respondent and Ms. Dean to get their side of the story. Mr. Lauer reported the situation to Dr. McKinzie on February 1, 2006. That same day, Dr. McKinzie reviewed the Belford website for approximately an hour and came to the same conclusions as Mr. Lauer regarding Belford and the nature of Respondent’s and Ms. Dean’s doctorate degrees. On February 3, 2006, Respondent was called to a meeting with Dr. McKinzie and Mr. Lauer. Dr. McKinzie told Respondent that she was going to recommend that the School Board fire him because he had misrepresented his professional qualifications though the submission of the Belford degree. The meeting lasted approximately five minutes. Respondent was not given a meaningful opportunity to explain his side of the story at the meeting and, prior to the meeting, Respondent had no indication that the validity of his Belford degree was in question. To the contrary, he was under the impression -- through representations made by Ms. Dean and his interpretation of Ms. Butler’s e-mail -- that his degree had been accepted by the District and DOE. By letter dated February 8, 2006, Dr. McKinzie informed Respondent that she had recommended to the School Board that his employment be terminated. The letter advised Respondent of his right to request an administrative hearing, and Respondent timely did so through a letter dated February 10, 2006. The School Board approved Dr. McKinzie’s recommendation at its meeting on February 14, 2006, and Respondent has been suspended without pay since that date pending the outcome of this proceeding. The negative characterization of Belford and its degrees by Mr. Lauer and Dr. McKinzie is reasonable based upon the evidence of record. For example, in addition to the statements from the website referred to in Finding of Fact 12 that should put a reasonable person on notice that Belford is not a legitimate educational institution, a degree from Belford can be obtained in as little as one week; the applicant is allowed to select his or her GPA, with a higher GPA costing more money; the applicant is not required to pay for his or her degree until after learning that the degree will be issued; the applicant is allowed to select his or her graduation date, with back-dating available at an additional cost; Belford will “introduce [a major] as a new addition to [its] doctorate curriculum” if the major sought by the applicant is not on Belford’s list of majors; Belford does not require transcripts or other proof beyond the applicant’s representations that he or she has received lower degrees (e.g., Bachelor’s and Master’s) prior to awarding a higher degree (e.g., Doctorate); and a base- level doctorate degree from Belford costs only $549.00. It is unreasonable for anyone, and particularly someone like Respondent who has 20 years of experience in the education system, to believe that Belford is a legitimate educational institution or that a doctorate degree from Belford is a legitimate educational degree that would be accepted as such by DOE or the District. Thus, it is inferred that Respondent knew or should have known that a doctorate degree from Belford is not a legitimate educational degree that could be used to enhance his standing in the principal pool or bolster his professional qualifications. Respondent’s conduct was slightly less egregious that Ms. Dean’s because, unlike Ms. Dean, Respondent did not make any affirmative representations to the District about completing a “doctorate program,” and Respondent relied upon Ms. Dean’s representations about the substance of her alleged conversations with Ms. Schuck. Nevertheless, it is clear from the evidence that Respondent was attempting to misrepresent and improperly bolster his qualifications through the submission of a “doctorate degree” from Belford that he knew or should have known was not a legitimate educational degree. Respondent’s decision to purchase a doctorate degree over the Internet calls into question his judgment as well as his respect for the educational process, which, in turn, raises serious doubts about Respondent’s ability to be effective in the school system. Indeed, it is clear from the totality of the evidence -- and particularly the testimony of Dr. McKinzie and Mr. Lauer -- that Respondent’s ability to be an effective leader (as assistant principals and aspiring principals are supposed to be) in the District has been significantly impaired through his submission and continued defense of his Belford degree as a legitimate educational degree.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Polk County School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 21st day of July, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 21st day of July, 2006.
Findings Of Fact Dr. Bert, a white woman, has been employed 25-1/2 years by the Department of Education (hereinafter "DOE"). Dr. Bert earned a Bachelor's of Science (1950), a Master's of Science in home economics education (1963), and a Ph.D. in home economics (1967) from the College of Economics at Florida State University. Beginning in 1950, Dr. Bert was employed as a teacher of high school home economics first at Union County High School (3 years), and then at Havana High School until 1965, when she took leave to finish her Ph.D. courses and write her dissertation. Dr. Bert first went to work for DOE in 1967 as a Vocational Studies Assistant. In 1975, she was promoted to the position of Program Director and worked in the area of research and development. While there, she helped Florida bring in over $30 million in federal grants for various vocational education programs (including home economics). During the period 1980-1985, when the federal government cut back the funds available for educational research and development, the R & D program was phased out; however, Dr. Bert remained as a Program Director in the R & D position, writing grants and seeking funds from other sources. In 1985, DOE was reorganized. Dr. Bert was laterally reassigned and given the job of Program Director I in home economics education by the Division Director, Dr. Joe Mills. Dr. Mills knew that Dr. Bert had earned her Ph.D. in home economics and asked her to take the position. As Program Director for Home Economics Education, Dr. Bert supervised a staff of four other professionals (Program Specialist III's) and was responsible for monitoring and administering the Florida and Federal government programs in home economics education, occupational education and homemaking education in all of the 67 local school districts. The Federal government provides Florida and other states with most of the monies needed for the administration of these programs, collectively referred to as "consumer and homemaking education." DOE's function is to establish the minimum education standards and curricula required in each area and otherwise to carry out the intent of Federal and Florida Law. As Program Director, Dr. Bert voiced repeatedly her concerns in 1992 regarding expenditures of federal funds earmarked for the Consumer and Homemaking Education Program which she described as illegal to Jerry Barnett, DOE's Budget Officer. The June 1993 report of audit on federal financial assistance programs at DOE for fiscal year 1992 confirmed that DOE was mis-spending federal monies, as Dr. Bert had pointed out. Dr. Bouie is a black woman, who had worked for DOE 14 years. She earned a Bachelor's of Science from Florida A&M University in home economics education (1967), a Master's of Science in home economics education from Tuskeegee Institute (1974), and a Ph.D. from Florida State University College of Education in administration and supervision (1983). From 1970- 1979, Dr. Bouie was a home economics instructor in Volusia County, Florida. Dr. Bert and Dr. Bouie were employed in 1992 in the Bureau of Vocational Programs and Services, which is within the Division of Vocational, Adult, and Community Education (the Division's name has now changed to "Division of Applied Technology and Adult Education" but will be referenced by its former name herein, or called the "Division"). Pat Hall (hereinafter "Hall") is the Bureau Chief of the Bureau of Vocational Programs and Services within the Division, and Lanny Larson (hereinafter "Larson") is the Director of the Division. On July 20, 1992, Castor issued a memorandum to the "Policy Group." The subject matter of the memorandum concerned the possible loss by minority employees of their positions or opportunities for advancement due to attrition and downsizing. The memorandum closed by announcing that Herb Parker (hereinafter "Parker") would be meeting with managers to development strategies to reduce the effect of attrition and downsizing and to enhance the composition of the work force. Hall, who was not a member of the policy group, was not aware of the July 20th memorandum, and never met with Parker. Neither Parker, Castor, nor Larson suggested to Hall that she promote a Black. Larson, as a member of the policy group, had seen the July 20th memorandum. Larson was never pressured by Castor to hire a Black and had never met with Parker pursuant to the memorandum. Larson was the Division Director of Vocational Adult Community Education and a member of Commissioner Castor's "Policy Group." He was aware of Castor's policy guidance not to reduce the number of Blacks in the process of downsizing the Department and in promoting Blacks at DOE. In the first week of October of 1993, Hall learned that her Bureau might have to leave five vacant positions unfilled and subject to elimination because of a legislative mandate. Not filling positions vacated by resignations and retirements was the primary means used to achieve the new manning levels of the Departmental reorganization. Hall analyzed her Bureau as to work-load issues, functions required, and expertise areas of remaining staff to insure that the Bureau's work could be covered with available personnel without laying anyone off. Hall's bureau was tasked to search out, apply and complete for Federal, state, and private grants, and to research new and merging issues in vocational education. No new personnel would be available to perform these new resource development duties. Hall's personnel review showed that Dr. Bert had worked 16 years in and was ultimately the Program Director of Research and Evaluation, which included resource development for 16 years. Dr. Bert had an extensive background, broad experience and considerable expertise in this area; and she was the only person in the Bureau with such experience. Hall's review also showed that Dr. Bouie had worked as a home economist for the Agricultural Extension Service, was a Junior and Senior High School home economics teacher, and was Chairperson of her Home Economics Department of her high school in Volusia County, Florida. Dr. Bouie also had a solid background in programs designed for the disadvantaged and the limited English proficient, together with programs administered through the Community Based Organizations Delivery System. She had developed a reputation for being a team player. Hall was of the opinion that this experience would be invaluable to the Bureau's Home Economics Section. The economic development and demographic trends in Florida resulted in the need for extensive restructuring and changes to the program offerings in each vocational area, to include Home Economics. Hall, at Larson's request, previously had asked Dr. Bert to look into changing the Home Economics curriculum. Dr. Bert refused, and Hall asked Shirley Lee, one of Dr. Bert's subordinates, to review the curriculum for change. Dr. Bert refused to allow Lee to conduct the project during normal working hours. Dr. Bert's refusal to consider changing the curriculum was, in Hall's opinion, an example of Dr. Bert's lack of receptiveness to change. In Hall's opinion, Dr. Bert was not the best person to initiate and develop those changes because Dr. Bert had, in the past, not been receptive to new initiatives for Home Economics. Larson was of the same opinion. Hall recommended to Larson that Dr. Bert be transferred to the new position of Program Specialist IV in Resource Development and that Dr. Bouie be placed in the Program Director I position. The decision to transfer Dr. Bert and Dr. Bouie to their new positions was jointly made by Hall and Larson based on Hall's review and recommendation. Both transfers were at the same pay grade. Thirty (30) such lateral transfers have been made due to reorganization in the Division over the last two years. Hall met with Dr. Bert on October 21, 1992 to notify and explain to Dr. Bert her pending transfer. Dr. Bouie was notified of the transfer on or about the same date. Dr. Bouie had not asked for and did not want to make the transfer. The fund-raising position into which Dr. Bert was transferred was a newly created position, having no support staff. Unlike her previous R & D position at DOE, Dr. Bert was given little or no assistance, met infrequently with Larson, and was given no extraordinary resources to perform the duties of her new job. Her transfer was a demotion. Dr. Bouie would retain certain duties she was already performing, as well as assuming those previously performed by Dr. Bert. Louis Davidson, the Health Occupations Program Director, and Loretta Costin, the Marketing Program Director, were also required to take on additional duties within the Bureau. Both Davidson and Costin are white. In late October, 1992, Dr. Bert learned from Dr. Mae Clemons that a group of Blacks at DOE had been communicating with Betty Castor, the Commissioner of Education, regarding the lack of Blacks in administrative positions given the number of Blacks with doctorate degrees. Dr. Clemons showed Dr. Bert an anonymous letter written sometime in 1992 to Betty Castor, containing the name of Blacks seeking promotions at DOE. Dr. Connie Hicks-Evans' and Dr. Bouie's names were two of the names listed in the anonymous letter to Commissioner Castor as having doctorates. Commissioner Castor called Dr. Hicks-Evans about the letter, and then faxed a copy to her. Dr. Hicks-Evans then called the meeting of Blacks holding doctorate degrees at DOE to discuss the issues and decide how to respond to Castor's inquiry. A group of black employees met in the DOE cafeteria to discuss informally the situation in October, 1992. Dr. Hicks- Evans discussed at the meeting the fact that Blacks were being denied promotions. Although this had not happened to her, it had happened to Rufus Ellis, James Scruggs and Baxter Wright. Dr. Bouie attended this meeting. She had never seen the anonymous letter before that meeting. Dr. Bouie believed that Blacks had applied for various positions and were not considered. She and other black employees wanted to find out what was happening in the Department. The subject of Dr. Bouie's transfer into Dr. Bert's position was not discussed at the group meeting. Dr. Bouie had not been told about her transfer at the time of the meeting. On November 2, 1992, Betty Castor met with a group of Blacks within DOE to discuss their concerns regarding promotions and other issues. The nine Blacks listed as "present" at the November 2 meeting were: Dorothy Bouie; Rufus Ellis, Jr.,; Connie Hicks-Evans; James A. Scruggs; Baxter Wright; Mae Clemons, Adeniji Odutola; Herb Parker; and Jean Williams. Dr. Bouie asserts she did not attend the November 2nd meeting with Commissioner Castor because she was sick that day. Her statement is deemed credible. Almost a year after the transfer was effective (December 21, 1992), the Program Director I position was upgraded to Program Director II, and Dr. Bouie's pay grade was increased from pay grade 25 to 27. Dr. Hicks-Evans did not know if any of the Blacks other than Dr. Bouie had been promoted at DOE since the anonymous letter was written and the meetings were held. Dr. Larson is the division Director of Vocational Adult Community Education which has four bureau. Two of the bureau chiefs are black (Leatricia Williams and John Lawrence), one is hispanic (Glenn Thomas), and the fourth is white (Pat Hall). Larson acknowledged that the decision to reassign Dr. Bouie into Dr. Bert's position and, subsequently, upgrading the position to promote Dr. Bouie, met the guidance of Castor regarding promotions for Blacks holding doctorate degrees; Dr. Bouie was not reassigned and promoted because of the Blacks' efforts in October and November, 1992. Larson was also aware of the 1992 movement by Blacks holding doctorate degrees, who were seeking promotions, prior to his decision to reassign Dr. Bert and place Dr. Bouie in Dr. Bert's position. There was never any pressure by the Commissioner on Dr. Larson to promoted Blacks because he had already met his EEO goals. The promotion of minorities at DOE was discussed quarterly as an issue related to performance appraisal and performance appraisals of all Division Directors at DOE by Castor. In July, 1992, Larson promoted a Black (Leatricia Williams) to one of his Bureau Chief jobs to replace another Black (Jim Barg). Although Dr. Larson could have reassigned Ann Rushing, a qualified white female, to the resource development position, he felt that Dr. Bouie was a better candidate for that position. Paulette Mainwood, Charlotte Gore, and Nancy Phelps were other qualified whites in the division whom Dr. Larson did not consider for the resource development position. Dr. Parker, a black male, has been DOE's Director of Administration for three years. He was promoted to the position by Castor and replaced by Larson, who was reassigned. Parker's job includes running the DOE's affirmative action program, and he attended the November 2, 1992 meeting with the other Blacks and Castor. The first informal group meeting of Blacks occurred about two weeks prior to the November 2, 1992 meeting with Castor. The anonymous letter had to have been sent before then. Parker met with all Division Directors regarding promotion of Blacks within the Department because he was the Chairman of the EEO Committee, and Betty Castor was concerned about promotion of minorities within the Department. The Department had goals established, and progress was discussed quarterly at executive steering committee meetings. Attainment of departmental affirmative action and EEO goals were not required by any law, according to Parker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Florida Commission on Human Relations Commission enter its Final Order finding no cause regarding the Petitioner's complaint. DONE and ENTERED this 15th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-5812 Both Parties submitted proposed findings of fact which were read and considered. The following states which of their findings were adopted, and which were rejected, and why: Petitioner's Proposed Order: Findings: Paragraph 1 Subsumed in 1 Paragraphs 2-7 Paragraphs 3-7 Paragraphs 8,9 Irrelevant Paragraphs 10, Subsumed in 7,8,9 11,12 Paragraph 13 Paragraph 22 Paragraph 14 Paragraph 10 Paragraph 15 True, but Bert was qualified as the resource person, and Bouie was qualified as the Home Economics Director. Paragraphs 16,17 Subsumed in 21-24 Paragraphs 18,19 Paragraphs 25,26 Paragraphs 20,21 Paragraph 32 Paragraphs 22,23 Paragraph 10 Paragraphs 24-27 Paragraphs 27-31 Paragraphs 28,29 Paragraphs 33,34 Paragraphs 30,31 Paragraphs 27,28 Paragraphs 32,33 Paragraphs 11, 15-18 Paragraph 34 Irrelevant Paragraph 35 Subsumed in 15-18 Paragraphs 36-44 Paragraphs 35-41 Paragraphs 45-51 Paragraphs 42-46 Respondent's Proposed Order: Findings: Paragraph 1 Paragraph 1,2 Paragraph 2 Paragraph 11 Paragraph 3-6 Paragraph 15-18 Paragraph 7 Paragraph 24 Paragraph 8 Paragraph 19 Paragraphs 9-11 Paragraphs 20-22 Paragraphs 12,13 Subsumed in 25-28 Paragraph 14 Irrelevant Paragraph 15 Paragraph 12 Paragraph 16 Paragraph 13 Paragraph 17 Irrelevant COPIES FURNISHED: Bruce A. Minnick, Esquire 660 East Jefferson Street Post Office Box 11127 Tallahassee, FL 32399-3127 William H. Roberts, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, FL 32399-1050 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana C. Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2011.
