The Issue An amended administrative complaint dated February 22, 1992 alleges that Respondent violated several provisions of Section 231.28(1), F.S. and Rule 6B- 1.006(5), F.A.C. Those alleged violations are based on incidents of criminal conduct in 1978 and 1989, and Respondent's failure to disclose the incidents on various employment or teaching certificate applications. The issue in this proceeding is whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Donny R. McCoy (McCoy) currently holds teaching certificate number 431066, in the areas of childhood education, mental retardation, elementary education and English as a second or other language. His recently- renewed certificate is valid through June 30, 1998. McCoy submitted applications for extension of his Florida teacher's certificate, signed and notarized October 1, 1982 and December 8, 1987. He also submitted an application for addition to his Florida teacher's certificate signed and notarized July 30, 1985. McCoy's application for a professional position with the Brevard County School District was dated September 1, 1990. In each of these applications, he responded "no" to the 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?" McCoy was hired as a kindergarten teacher at Gardendale Elementary School in the Brevard County School District from July 15, 1991 until September 20, 1991. As a result of his employment, the school district ran a background check and through the Federal Bureau of Investigation (F.B.I.) learned that McCoy had been involved in two criminal proceedings, one involving illegally importing parrots and the other involving charges of indecent exposure. McCoy resigned from his position effective September 20, 1991, and the Department of Education, Office of Professional Practice Services was notified. That office commenced an investigation consisting primarily of gathering court documents regarding the criminal cases. The investigation addressed three issues: the arrest and conviction for importing parrots, the arrest for indecent exposure, and McCoy's failure to acknowledge the incidents on his applications described above. McCoy was twenty-three years old on January 29, 1978 when he and a friend were arrested and charged with illegally shipping two parrots from Mexico to the United States. The Judgement Order of the U.S. District Court for the Southern District of Texas, Brownsville Division, reflects that McCoy had counsel, pled guilty and was adjudged guilty. A fine of $100.00 was imposed. McCoy was scared and remembers only going to court and leaving. Discussions were held between the attorney and the magistrate and McCoy has no recollection of the guilty plea. He felt the case was dismissed; someone else, his friend or the friend's father must have paid the fine. From 1979 until 1991, McCoy worked as a teacher in various places, including Broward County, Florida; Tokyo, Japan, for the Department of Defense; Alachua County, Florida; and St. Louis, Missouri. He claims he has been fingerprinted and had background investigations for these positions and never before has he been informed of the smuggling conviction on his record. He has told people about the parrot incident, but never put it on his application forms because he believed the case was dismissed. The application forms clearly inquire about convictions or adjudications withheld, not arrests. After the Brevard County background check, McCoy's attorney obtained an F.B.I. identification record on Donny McCoy. That record, dated 9/3/91, and provided to McCoy after he resigned from his Brevard County teaching position, reflects that the parrot charge was dismissed. On January 25, 1989 in Tazewell County, Illinois, McCoy was charged by information with three counts of "public indecency" in that he publicly "exposed his sex organ in a lewd manner." (Petitioner's Exhibit 6) Two of the counts were dismissed and the third was reduced to disorderly conduct. McCoy pled guilty to the count of disorderly conduct and adjudication was deferred on February 27, 1990. He was placed on twelve months supervision, was required to attend counselling, and was fined $100.00, plus $80.00 in court costs. After he complied with all the conditions of supervision, the case was dismissed on February 5, 1991. The case had not been dismissed as of September 1, 1990, the date of McCoy's Brevard County School District application. As of that date, he was still under supervision and adjudication was deferred. His "no" response described in paragraph 2, above, was untruthful. At some time prior to the hearing in this proceeding, McCoy, or his attorney sent to the Department of Education an affidavit that he had executed on February 7, 1992 and the copy of a polygraph report dated April 3, 1989. The polygraph report is referenced in the affidavit. The substance of these documents is an admission by McCoy that he had exposed his underwear and, at most, his pubic hair, but not his penis, to a high school youth he encountered on the street. He had done this on more than one occasion for the purpose of determining whether the individual might be gay. He did this because someone had done it to him. He participated in counselling and understood the reason for his behavior. He disavowed any desire to repeat the behavior. Throughout his teaching career, McCoy has received a series of excellent recommendations and commendations. He admits that none of the authors of those letters is aware of the Illinois incident. A criminal record does not automatically reduce a teacher's effectiveness or make him ineligible for licensure. The Department of Education, Office of Professional Practices Services looks beyond the criminal charge and disposition to the underlying incident and circumstances. In this case, it had McCoy's own explanation of the Illinois incident and it had the applications which he had submitted. These documents and the agency's long- standing policy of taking very seriously any sexual charges involving teachers, a policy reasonably based on the expectations of the public that children should be safe with people employed in schools, resulted in the agency's determination that McCoy is unfit to hold a teaching certificate in Florida.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a final order be entered finding that Respondent, Donny McCoy violated Sections 231.28(1)(c), (f) and (h), F.S., and Rules 6B-1.006(5)(a), (g) and (h), F.A.C., and imposing the following penalty: three years suspension, followed by two years probation, under terms to be specified by the Educational Practices Commission, which terms should assist in insuring that Respondent does not represent a threat to the safety or well-being of students under his responsibility. DONE AND RECOMMENDED this 9th day of December, 1993, in Tallahassee, Florida. MARY CLARK 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 9th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-2250 The following constitute rulings on the findings of fact proposed by each party: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5 to the extent that the referenced exhibit reflects those findings. However, other evidence conflicts with, or supplements the disposition of the case. Adopted in paragraph 9. and 6. Adopted in paragraph 2. Adopted in paragraphs 3 and 4. Rejected as unnecessary. Adopted in paragraph 13. Adopted in paragraph 11. Adopted in paragraph 4. Respondent's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraphs 3 and 4, except that it was not established the resignation was "forced". Rejected as unsubstantiated by evidence. Reflected in the Administrative Complaint and unnecessary. Adopted in paragraph 5. Rejected as to the Illinois incident; adopted as to the Texas incident, see paragraph 6. Rejected as contrary to the weight of evidence. Adopted in paragraph 7. Rejected as unnecessary. Adopted in paragraph 9. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as contrary to the weight of evidence. COPIES FURNISHED: Gregory Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Thomas H. Lanham, Esquire 1900 South Harbor City Boulevard Melbourne, Florida 32901 Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Petitioner made application to Respondent to obtain a license as a psychologist by exception pursuant to the provisions of Section 1 of Chapter 81- 235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. It was stipulated by and between the Petitioner and the Respondent that Petitioner's doctoral degree did not meet the specific course requirements of Rule 21U-11.05, Florida Administrative Code. Petitioner received his B.A. degree from Rutger's University, a master's degree in counselor education from Florida State University, and a Ph.D. in marriage and family counseling from Florida State University. Petitioner's doctoral dissertation concerned itself with one of the key aspects of Adlerian psychology called "social interest." This dissertation was of such professional significance as to result in an appearance of Petitioner for the purpose of presenting the paper to the American Society of Adlerian Psychologists. Petitioner's course of study for his doctoral degree focused primarily on Adlerian psychology. The total course work completed by the Petitioner exceeded the minimum requirements for his Ph.D. In addition to his educational training, the Petitioner has done individual counseling and psychotherapy for approximately eleven years. Within the general field of psychology there are a host of different subdivisions. One of these subdivisions is counseling psychology. Within counseling psychology there are different theories or methods relative to dealing with individuals, and one of these methods is the Adlerian method. It was this method which was the focus of the Petitioner's dissertation for his doctoral degree. Petitioner sought his licensure by exception by contending that he obtained a doctoral degree from an approved university in a program that is primarily psychological in nature. The Petitioner's application for licensure was denied on the basis that his course of study was not primarily psychological in nature because the program did not include at least one course in biological bases of behavior or cognitive-affective bases of behavior as required by subparagraphs (a) and (b) of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. Three other individuals, Dr. Kerr, Dr. Simpson, and Dr. Shreenan, applied for and were granted licensure as psychologists during the same period of time in which Petitioner applied and was denied licensure. Petitioner's educational qualifications were equal to or exceeded those of Drs. Kerr, Simpson, and Shreenan. Dr. Kerr, Dr. Simpson, and Dr. Shreenan were certified by the Florida Association of Practicing Psychologists and gained licensure as psychologists pursuant to Chapter 81-235 as amended by Section 37 of Chapter 82- 179, Laws of Florida, which mandated licensure of persons so certified. Petitioner did not apply for certification by the Florida Association of Practicing Psychologists. The evidence did not establish that Petitioner's failure to apply for such certification was in any part due to actions or inactions on the part of the Respondent. The specific course requirements of Rule 21U-11.05, Florida Administrative Code, were not applicable to those individuals gaining licensure through certification by the Florida Association of Practicing Psychologists. Rule 21U-11.05 was promulgated by the Board of Psychological Examiners in order to establish an objective method for evaluating the educational programs of those applying for licensure. The rule establishes the minimum qualifications for a program of study to be considered primarily psychological in nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for licensure as a psychologist be DENIED. DONE AND ENTERED this 29th day of September, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983. COPIES FURNISHED: Mallory E. Horne, Esquire Randall A. Holland, Esquire BORNE, RHODES, JAFFRY & Assistant Attorney General HORNE Administrative Law Suite 800, Barnett Bank Bldg. 1601-The Capitol Tallahassee, Florida 32301 Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Psychology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue 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.
