The Issue Whether Petitioner's application for licensure as a psychologist should be approved pursuant to Chapter 490, F.S. This proceeding commenced upon the provisional denial by Respondent Board of Psychological Examiners of Petitioner's application for licensure by exception as a psychologist under Chapter 490, Florida Statutes. The denial was based on the Board's determination that Petitioner's doctoral degree was not primarily psychological in nature in that it did not reflect coursework in biological bases of behavior as required by Respondent's Rule 21U-11.05(2)(a), Florida Administrative Code. Petitioner requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer. At the commencement of the hearing, Petitioner was advised of the procedures and her rights in an administrative hearing. She elected to represent herself ate the hearing. At the hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses. She submitted two composite exhibits which were received in evidence. Respondent called one witness and submitted one composite exhibit in evidence. Post-hearing submissions by the parties in the form of a Memorandum by Petitioner and a Proposed Recommended Order by Respondent have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact By application dated May 6, 1982, which was received by Respondent on May 13, 1982, Petitioner Ann M. O'Roark applied for licensure by exception as a psychologist pursuant to Chapter 490, Florida Statutes. The application reflected that Petitioner received an A. B. J. degree in journalism from the University of Kentucky in 1955, a M.Ed. from the University of Florida in 1972, and a Ph.D. from the University of Florida in 1974, with a major in Foundations of Education. She was a member of Phi Beta Kappa at the University of Kentucky, and is currently a member of various psychological associations. She was licensed as a psychologist in the Commonwealth of Kentucky in 1975. She has had extensive work experience in Kentucky, Georgia, and Florida since receiving her doctorate degree, primarily in the field of educational psychology, psychological assessment and diagnostic services, organization development consultation services, and individual and group educational/developmental services. Her application reflects that she was certified as an educational psychologist, Rank A-1, by the State of Florida in 1974. (Testimony of Petitioner, Petitioner's Exhibits 1-2, Respondent's Exhibit 1) By letter dated October 28, 1982, Respondent advised Dr. O'Roark that her application was denied for the reason that her doctoral transcript did not reflect coursework in biological bases of behavior, as required by Respondent's Rule 21U-11.05(2), Florida Administrative Code. The letter further provided Petitioner an opportunity to submit additional information concerning her doctoral program, and also advised her of her rights to an administrative hearing. Following the submission of further information by Petitioner, Respondent advised her, by letter dated October 28, 1982, that her application file, including the additional information submitted, had been reviewed, but the board reaffirmed its previous decision to deny the application. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 2) Rule 21U-11.05, F.A.C., provides that in order to be certified by the board as eligible for issuance of a psychology license by exception, an applicant must have received a doctoral degree from an accredited educational institution in a program that is "primarily psychological in nature." Such a program is defined in paragraph (2) of the rule as one that requires the successful completion of one course in each of six specified areas. One of these areas is "biological bases of behavior" and the rule provides examples of courses that qualify in such category as being "physiological psychology, comparative psychology, neuropsychology, and psychopharmacology." At the hearing, Petitioner submitted materials concerning certain courses she had taken in her doctoral program which purportedly contained from one-fifth to one-third of the subject matter in the area of biological bases of behavior. However, none of the courses deals substantially or exclusively with the area of biological bases of behavior. Most of the courses fall within other categories specified in Rule 21U-11.05(2), F.A.C. As a matter of policy, the Board in the past has not permitted an applicant to use portions of several courses to qualify as the one course required in each of the various subject matter areas. The reason for this policy is to insure that one obtains an appreciable knowledge in each of the six specified areas. (Testimony of Petitioner, Perry, Petitioner's Composite Exhibit 2) Petitioner's work as a consultant at the Albany Mental Health and Retardation Center and for the Florida Department of Transportation was characterized by officials of those organizations as very professional and successful. (Testimony of Hertwig and Kietzer)
Recommendation That Petitioner's application be denied. DONE and ENTERED this 2nd day of March, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: Ann M. O'Roark, Ph.D. 2904 NW 40th Place Gainesville, Florida 32605 John E. Griffin, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Jane Raker, Director Board of Psychological Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact As of the end of July, 1983, Petitioner had completed all the course work required for her master's degree in counseling psychology at Wheaton College. She had not, however, taken and passed a mandatory test in the New Testament required by the college of all degree candidates prior to award of the degree earned. This test in no way concerned any academic matters relating to her specialty but was strictly limited to a knowledge of the New Testament. At the time, Petitioner had satisfactorily completed all the academic courses relating to her specialty. Because of her failure to take and pass this test, however, she was not awarded her degree at that time. Petitioner took the required test in October, 1987 and was found to have passed it and to have met all requirements for her master's degree on February 8, 1988. However, because Wheaton College does not date or award degrees until the next regularly scheduled commencement exercise, she was not actually awarded the master's degree until May 12, 1988. Transcripts of course work completed indicate Petitioner has completed more than 21 hours of graduate work with course content in human development theory and personality thereof, psychotherapy, and abnormal psych-personality courses. However, she did not offer any official course outlines, course descriptions, or course syllabi or any testimony, outside her own, to indicate that her course work meets the requirements of the statute and the Board's rule indicating the necessary course work. Petitioner has worked under the supervision of Dr. Vinod K. Bahtnagar, a Board certified psychiatrist, since June 1, 1987. Dr. Bahtnagar's credentials meet the requirement set forth in the statute and rules. The degree of supervision is also acceptable. Upon completion of her course work at Wheaton College, Petitioner interned at the Manatee Mental Health Center and then worked as a counselor there for two years. From there she went to Sarasota Palms hospital for several years where she worked under Dr. Bahtnagar's supervision and since 1987, she has worked directly for the Doctor. In each of her working years, she worked more than 1500 hours of which at least 750 was face to face dealings with clients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's application for licensure as a mental health counselor by examination be denied. RECOMMENDED this 27th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5247 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER Accepted and incorporated herein.* Accepted and incorporated herein.* Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. Rejected as not established. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. *This does not concede Petitioner's course work meets the statute or rule requirements. FOR THE RESPONDENT Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Robert L. Moore, Esquire Kanetsky, Moore & DeBoer, P. A. P.O. Box 1767 227 Nokomis Avenue South Venice, Florida 34285 David M. Maloney, Esquire Asst. Attorney General Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Kenneth A. Easley, Esquire General Counsel DPR 130 North Monroe Street Tallahassee, Florida 32399-0750 Linda Biederman Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Immediately prior to the hearing the parties submitted a stipulation as to a portion of the facts as follows: The parties hereby agree that the follow- ing facts are true for the purposes of this proceeding: Petitioner is licensed to practice Psychology in the State of Illinois, holding License No. 72-604. The date of issuance of his license was 8 March 1965. Petitioner's application for licen- sure contained all information necessary for respondent to make a determination as to his entitlement for licensure. On 15 April 1978 respondent denied petitioner's application on the grounds that he did not have a doctoral degree in Psycho- logy and that the standards for licensure in the State of Illinois were not at least equal to the standards for licensure in the State of Florida. On 21 October 1978 respondent denied petitioner's application for licensure on the grounds that his degree was not from an Ameri- can Psychological Association approved program nor from a program that was equivalent thereto. On 15 April 1978 respondent approved an application for licensure under special con- ditions on behalf of Dr. Thomas A. Guest, based upon his licensure in the State of Illinois. On 18 October 1977 respondent approved an application for licensure under special con- ditions on behalf of Dr. Lois M. Mueller, based upon Dr. Mueller's licensure in the State of Illinois. Petitioner complies with the require- ment contained in s. 490.19(1)(a), Florida Statutes, for good moral character. Petitioner complies with the require- ment of s. 490.19(1)(b), Florida Statutes, in that he conforms to the ethical standards of the profession as adopted by the Board. Petitioner received his license in Illinois by virtue of a grandfather clause con- tained in that act. Petitioner has never taken the exami- nation referred to in respondent's rules as the PES exam. Petitioner does not meet the requir- ments of Rule 21U-2.05(1)(a)1, being a requirement for 90 hours of graduate study. Petitioner does not have a doctoral degree in Psychology from a program approved by the American Psychological Association. It was further stipulated that Petitioner's Exhibits 1 through 9, attached to the foregoing Stipulation as documentation, would not be objected to on grounds of authenticity, and that the depositions of Dr. Robert Zellar and Dr. Albert Ellis would be taken by deposition and the record closed only after receipt by the Hearing Officer of said depositions. Both depositions have been received by the Hearing Officer. Petitioner, a resident of Springfield, Illinois, and a licensed psychologist in Illinois since 1965, requested an administrative hearing after the second denial by the Respondent Board of his application for licensure as a psychologist in the State of Florida. Petitioner also requested a hearing on whether he would be eligible to take the Florida psychology examination. This issue has not been determined by the Respondent Board, but no objection was raised as to having said issue determined at this administrative hearing. After Respondent Board denied the application of Petitioner for licensure in April of 1978, Petitioner obtained an Ed.D. degree in human services and reapplied to Respondent for licensure in October, 1978. He was again denied licensure. The Respondent Board denied both applications for licensure by the Petitioner on the grounds that he failed to meet the educational requirements of Florida. The finding of the Respondent was based on: Petitioner's degree does not have a major in psychology from an accredited university. Petitioner's degree does not have a major in psychology from a university maintaining a standard of training comparable to an American Psychological Association accredited university due to the fact that: Petitioner received an Ed.D in Higher Education not a Ph.D in psychology. Petitioner has only two (2) semesters of full-time study, and those were predomi- nantly of a practical nature. A comparable program requires at least two (2) years (four [4]) semesters of full-time study or ninety (90) semester hours; sixty (60) of those should be designed as preparation for the professional practice of psychology, of which at least forty-two (42) shall be in any five basic areas as detailed in Chapter 21U-2.05(2)(a)(2), F.A.C. Respondent Board refused Petitioner a license only after an individual appraisal of the program cited by the Petitioner in his application. Petitioner Gullo holds a Masters degree in clinical psychology from Bradley University in Peoria, Illinois, awarded in 1964. Bradley University does not have an American Psychological Association approved program in psychology. The Petitioner was licensed to practice psychology in 1965, under Illinois Statute, Title 91 1/2 Section 411(a). His licensure was granted under the grandfather clause of that statute, which permitted licensure of those holding a Masters degree on the effective date of the statute. The statute increased the requirements to a doctorate degree thereafter. Petitioner has practiced as a psychologist or taught in Illinois at various institutions since shortly after his licensure, and has been employed in his own clinic since receiving his degree from the University of Sarasota in 1975. Petitioner was awarded an Ed.D. degree in 1975, from the University of Sarasota in Sarasota, Florida, with a major in human relations, while he was practicing psychology in Illinois. The University of Sarasota does not have an American Psychological Association approved program in psychology. One of the reasons the Petitioner chose to obtain a degree from the University of Sarasota was so that he could continue to work in Illinois while fulfilling the school's requirements. Most of the work for his degree was done off campus in a directed research and seminar type of study. Actual campus study consisted of a few weeks' instruction. The University of Sarasota is a "non-traditional" university. Such "non-traditional" universities are held to be not acceptable to provide required professional training by the American Psychological Association. The students use their home libraries or use university libraries near their respective homes for the remainder of their work. The University of Sarasota offers the Ed.D. (doctorate of education) degree, the M.A. (master of arts in education) degree, and the M.Ed. (master of education) degree. Since the time Petitioner Gullo received his degree in 1975, the required hours for the doctorate degree in education have been increased to 90 hours. The University does not have a program in psychology, and no studies in basic psychology are taught there. There are no full-time teachers, and the students are nation-wide residents. Class work is accomplished during two (2) to four (4) weeks during the summer. The University of Sarasota has not been accredited by any accrediting organization, although it has been licensed by the Florida State Board of Independent Colleges. The American Psychological Association has never approved a "non-traditional" type of university. Petitioner Gullo has 74 hours of graduate study and 27 hours of basic psychology. Petitioner has not had one year of supervised experience since receiving his doctorate, but has been working in his own clinic. Petitioner has never taken the Professional Education Service examination. Dr. Robert H. Zellar, a professor of human development counseling and professor of humanities at Southern Illinois School of Medicine, directed Petitioner Gullo's doctoral study. This study was done in "rational emotive psychoterapy." The degree was in human services, which is a broad generic term, rather than the strict academic specialization required for a degree in psychology. Dr. Zellar found Dr. Gullo competent to teach emotive psychotherapy on two occasions at the university at which Dr. Zellar was employed. Dr. Albert Ellis, a psychologist and psychotherapist, and Executive Director of the Institute for Rational Emotive Therapy in New York, New York, has known the Petitioner since 1963, or 1964. He has observed Dr. Gullo in clinical situations six (6) or seven (7) times. Each of those times he observed Dr. Gullo in clinical situations in all-day workshop situations. Those workshops observed by Dr. Ellis were during the period 1964, to 1976, or 1977. It was Dr. Ellis' opinion that Dr. Gullo is a "very competent psychologist and psychotherapist." Dr. John W. French, Dean of Education at the University of Sarasota, and the director of Petitioner's doctoral program, stated that in his opinion any student should be allowed to take a test to show what he knows regardless of his educational background. In reference to the library at the University of Sarasota, Dr. French stated that it is a "specialty" library, and its specialty is to get students started on dissertations. Primarily, the library is useful in aiding each student to work up a bibliography. Prior to the arrival of Dr. French in 1976, the assignment of students to dissertation advisors and the assignment of dissertations to readers was based more on whether a member of the faculty had recently received and read a number of dissertations, and whether it was that person's turn to get another dissertation rather than upon the expertise of the faculty member. A schedule of fees paid to the faculty for services include: $40.00 for each dissertation read and critiqued; $10.00 for each dissertation proposal read and critiqued; and $50.00 per half-day teaching in Sarasota. Dr. Thomas A. Guest and Dr. Lois M. Mueller were approved for licensure under special conditions by the Respondent Board after it examined the applications submitted by the applicants and found that they had each been licensed by the State of Illinois pursuant to that state's current laws which require, among other things, a doctorate degree in psychology. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended: The application of John Gullo for licensure as a psychologist in the State of Florida be denied. The application of John Gullo to take the examination for licensure as a psychologist in Florida be denied. DONE and ORDERED this 28th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 John J. Rimes, III, Esquire Legal Affairs Section The Capitol Tallahassee, Florida 32301
The Issue The first issue to be determined is whether Petitioner, Rebecca Coleman Curtis (“Petitioner” or “Dr. Curtis”), is entitled to licensure as a psychologist in the State of Florida by virtue of the “deemer” provision in section 120.60(1). The second issue to be determined is whether the Florida Board of Psychology (the “Board”) used an unadopted rule in violation of section 120.54(1)(a), with respect to its decision to deny Dr. Curtis’s application for a license.
Findings Of Fact Section 490.006(1), Florida Statutes, presents three avenues for a psychologist to obtain licensure by endorsement. Petitioner applied to the Board of Psychology for licensure as a psychologist on September 30, 2014. She applied under the category of licensure authorized by section 490.006(1)(c), which allows for licensure to persons who possess a doctoral degree in psychology as described in section 490.003 and have at least 20 years of experience as a licensed psychologist in any jurisdiction or territory of the United States within 25 years preceding the date of the application. Petitioner’s application was deemed complete by the Board office on October 17, 2014. Ninety days from Petitioner’s completed application was January 15, 2015. The Department of Health sent Petitioner a letter regarding her application dated October 17, 2014, which states in pertinent part: Dear Dr. Curtis: Psychology board staff has reviewed your application. You have been authorized for the Florida laws and rules exam. You have been approved for licensure upon passage of your exam. Please note that that you have 24 months, from the date of this letter, to verify completion of these requirements or your application will be administratively closed as required in Section 490.005(3)(a), Florida Statutes. (emphasis added). Petitioner was included in a list of applicants (the APA List) to be ratified by Respondent at a telephone conference call on November 21, 2014. The Board approved all of the candidates on the list. Both the letter authorizing Petitioner to take the laws and rules examination and the Board’s action ratifying approval of Petitioner’s application for licensure occurred within 90 days of her completed application. The top of the first page of the APA List contains a statement which reads: “regardless of the application method, if board staff becomes aware of any issues of concern, approved applicants will be brought back before the Board for reconsideration prior to issuance of a license.” Respondent has not cited any authority for this statement. This statement was applicable to all candidates on the APA List, including Petitioner, and was applicable to similar candidates on previous lists on which the Board has acted. Applicants for licensure are not made aware that the Board will reconsider an application previously approved by the Board. Petitioner took and passed the required laws and rules examination in August 2016, and her score was reported to the Board office. Respondent sent Petitioner a letter dated August 9, 2016, which stated that her application would be considered by the Board of Psychology’s Credentials Committee at its meeting September 9, 2016, despite that she was advised previously that she was approved for licensure. That same day, Michelle Branch from the Board office sent Dr. Curtis an email which stated, in part: We have received your Laws and Rules exam score and it appeared you were ready for licensure, however, after further review of your file, there is a question on whether you received your doctorate degree from a program that was accredited by the American Psychological Association. To obtain a psychology license under the Endorsement of 20 Years of Licensed Psychology Experience method, you must have received your doctorate degree from an APA accredited program. I have provided Section 490.005, F.S., for your reference: . . . . Your transcripts indicated that you received your PhD from the Social Psychology program at the Teachers College, Columbia University, New York City, which is not listed as an accredited program on APA’s website. I have contacted APA to verify and am waiting on a reply. Please request a letter from the university indicting [sic] your major. This letter can be emailed to me. Your application and transcripts will then go before the September 9, 2016 Credentials Committee for review. Please find the attached meeting notice. (emphasis added). Ms. Branch’s request for additional information was more than 30 days from the Board’s receipt of Petitioner’s application, and well after the application had been deemed complete, and well after the application was approved by the Board. On August 24, 2016, Petitioner submitted to Respondent’s agency clerk a Notice of Intent to Rely upon Default License Provision. A memo provided to the Board regarding Dr. Curtis’s application contained the following information for the Board’s consideration. Dr. Curtis applied for licensure under the Endorsement of 20 Years of Licensed Psychology Experience method, however, her doctoral psychology program completed at the Teachers College, Columbia University, New York City in 1973, did not hold programmatic accreditation by the American Psychological Association (APA). Although Dr. Curtis went on to complete studies in Clinical Psychology at the APA-accredited Adelphi University in 1988, the transcript indicates it was a non- degree program. In the initial review of Dr. Curtis’ application by former staff, these issues were not addressed and the staff erroneously approved Dr. Curtis to sit for the laws and rules examination. Upon the receipt of Dr. Curtis’ exam score, current staff performed a final review for license issuance and these issues were discovered. Dr. Curtis was subsequently notified that her application would require review by the Board’s Credentials Committee before further action could be taken. The author of this memo is not identified, and did not testify at hearing. While it is admissible for the purpose of demonstrating what the Board considered in its second review of Dr. Curtis’s application, it is hearsay. Dr. Curtis’s unrefuted testimony is that she holds two separate doctoral degrees in psychology, the first from Teachers College at Columbia University, and one from Adelphi University. Both schools are located in New York. According to Dr. Curtis, because New York would not issue a second doctoral degree in the same field, her degree from Adelphi is listed as non-degree seeking, despite her completing the requirements for a degree and being issued a diploma. Dr. Curtis has been licensed in the State of New York since 1983, and her application file does not include any indication that her license has ever been disciplined. The only evidence other than the memo cited above that would indicate that Dr. Curtis’s education did not qualify her for licensure in Florida are copies of emails, which appear to be the source of the Board staff’s information. Neither the person who received the email nor the person who sent them testified at hearing, and, although included in Petitioner’s licensure file, the contents of the emails are also hearsay. During the September 9, 2016, meeting, the Committee voted to deny Petitioner’s application for licensure. Petitioner received a Notice of Intent to Deny from Respondent on or about October 11, 2016, notwithstanding the Board’s prior approval of her application nearly two years before. The Board has not promulgated any rule that provides for “re-screening” or a “second review” or “final review” of an application that has been previously approved by the Board. Nor has the Board promulgated any rule that provides for “reconsideration” of an application that has been previously approved by the Board. The Board delegates to office staff the review of applications to see if applications meet the requirements specified in chapter 490 and the Board’s rules. Petitioner provided notice to the Board on September 12, 2016, pursuant to section 120.595(4)(b), regarding possible unadopted rules. The Board has not commenced any rulemaking proceedings regarding the subjects addressed in the September 12, 2016, notice to the Board of Psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Psychology enter a final order that: 1) acknowledges Petitioner’s application for licensure is approved, pursuant to the procedure in section 120.60(1); and 2) directs the issuance of Petitioner’s license as a psychologist. With respect to Petitioner’s claims pursuant to section 120.57(1)(e), it is further RECOMMENDED that: 1) the statements related to reconsideration or a second review of approved applications for licensure after the receipt of examination scores and before the issuance of the license meet the definition of a rule and constitute an unpromulgated rule; 2) the Board must immediately discontinue all reliance on these statements or any substantially similar statement as a basis for agency action; and 3) Petitioner is entitled to an award of reasonable attorney’s fees and costs, in an amount to be determined after the entry of the final order. DONE AND ENTERED this 13th day of March, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 13th day of March, 2017.
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, 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 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact By letter dated February 4, 1976, the Board denied the Petitioner's application for licensure as a psychologist in the State of Florida (Petitioner's Exhibit 1). As grounds for its denial the Board stated that the Petitioner's doctoral degree does not meet the requirements of Florida Statutes Chapter 490.19(1)(d). Petitioner received a master's degree in clinical psychology from the University of Tennessee, Knoxville, Tennessee in March, 1949. A transcript of the Petitioner's record at the University of Tennessee was received in evidence as Petitioner's Exhibit 2. Petitioner took two academic quarters of course work at the University of Tennessee, Knoxville, and two quarters at the University of Tennessee, Memphis, School of Medicine, Department of Psychiatry. While at Knoxville the Petitioner completed, inter alia the following courses: Philosophy 401, a course in esthetics; Psychology 431 and Psychology 432, courses in clinical psychology with an emphasis on testing materials; and Psychology 542, a course in advanced statistics. While at Memphis the Petitioner completed the following courses: Psychiatry 403, a course in fundamentals of human behavior; Psychology 461, a course in applied psychological psychology; Psychology 651, a course in which clinical practices were demonstrated and discussed; Psychology 681, a practicum course in testing, diagnosis, and evaluation of patients at the psychiatric hospital; Psychology 594, a course in advanced testing techniques; and Psychology 682, an additional practicum course. In addition to the course material Petitioner completed a thesis, and oral examinations. The Petitioner then completed an internship at the University of Tennessee, Department of Psychiatry, which is called the Gailor Psychiatric Hospital. Following her internship the Petitioner joined the staff at the Gailor Psychiatric Hospital, where she worked for four years. During the fall of 1967 the Petitioner attended George Washington University. A transcript of her record at George Washington University was received in evidence as Petitioner's Exhibit 4. Petitioner took the following courses: Learning Problems and Disabilities, a course on how to teach and handle misbehaving, disturbed children; and the Adolescent in School and Work, a course dealing with behavioral adjustment of adolescents. Before she could complete a degree program at George Washington, the Petitioner's husband was relocated, and she moved to Las Alamos, New Mexico. During 1970 the Petitioner enrolled in the University of New Mexico in Albuquerque, New Mexico. Petitioner entered the College of Education, Department of Guidance and Counselling. Petitioner was seeking a degree in clinical psychology. There is a Department of Psychology at the University of New Mexico, but the program in that department dealt almost exclusively with experimental psychology, a program in which the Petitioner had no interest. The transcript of the Petitioner's record at the university of New Mexico was received in evidence as Petitioner's Exhibit 5. During the spring academic quarter of 1970, the Petitioner took a workshop course which focused upon working with children who have learning disabilities. During the summer academic quarter of 1970 Petitioner took a course dealing with the treatment of special education children in the regular classroom, and a seminar which dealt with education and treatment of neurologically impaired children. During the fall, 1970 academic quarter Petitioner took a course in group techniques for guidance; a course dealing with the education of emotionally disturbed children; and an advanced course dealing with education and treatment of neurologically impaired persons. During the spring academic quarter, 1971 the Petitioner took a course in techniques of counselling, an advanced practicum course in guidance and counselling, and an additional course in working with physically and neurologically impaired persons. During the summer quarter, 1971 Petitioner took a course titled "Research Design and Statistics". During the fall quarter of 1971, the Petitioner took a course on techniques of parent and teacher counselling, and a course on advanced theories of counselling and psychotherapy. During the spring quarter of 1972, the Petitioner took an additional advanced practicum in counselling and guidance. In addition to her course work the Petitioner completed a dissertation. The Petitioner's dissertation was a study of the way school counsellors view their work, both as they actually perform it and as they ideally perceive it; and the way students view what counsellors do, both in reality and ideally. Petitioner received a Doctor of Philosophy degree from the University of New Mexico. Her degree was labeled a degree in Pupil Personnel Services, which is an umbrella degree for all doctoral programs in the School of Education. Petitioner's major field of study was titled Counselling Psychology. No program in the University of New Mexico School of Education was approved by the American Psychological Association at the time that Petitioner was at the University of New Mexico, and no program has been approved since that time. The course of study undertaken by the Petitioner at the University of New Mexico is not a program with a standard of training comparable to universities having programs approved by the American Psychological Association. Petitioner's program was primarily limited in scope to one specific facet of a general program in psychology, that being school guidance and counselling. Some of the courses taken by the Petitioner included aspects of a general course in psychology, but the courses were not designed to provide a comprehensive background in psychology. The post-graduate programs pursued by the Petitioner prior to her enrolling in the University of New Mexico do not adequately fill the void. Petitioner's course work at the University of Tennessee, and at George Washington University does not provide her with a comprehensive academic background in psychology.
The Issue The issue is whether Respondent committed the acts alleged in the Amended Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Respondent holds, and at all relevant times, held a valid Florida Educator’s Certificate. Respondent is and, at all relevant times, was a fifth- grade teacher at Avon Park Elementary School in Highlands County. Respondent has been an elementary school teacher for 19 years. She taught fourth and fifth grade at Zolfo Springs Elementary School in Hardee County from 1986 through the end of the 2000-01 school year. She started teaching at Avon Park Elementary School at the beginning of the 2001-02 school year. Respondent is currently on a year-to-year contract. Her contract was renewed for the 2003-04 and 2004-05 school years notwithstanding the allegations in this case, which occurred during the 2002-03 school year. Respondent has not had any disciplinary problems over the course of her career, and other than the allegations in this case, she has never been accused of any unethical or unprofessional conduct. Respondent has always received good annual performance evaluations. Respondent’s most recent performance evaluations - - for the 2002-03 and 2003-04 school years –- state that she “meets or exceeds expectations” in all categories, including the category that assesses whether Respondent “act[s] in a professional and ethical manner and adhere[s] to the Code and Principles of Professional Conduct.” Consistent with the information in Respondent’s annual performance evaluations, the principal at Avon Park Elementary School, who is Respondent’s current supervisor, testified that Respondent “does a good job” as a teacher and that she values Respondent quite highly as a teacher; the former principal at Zolfo Springs Elementary School, who was Respondent’s supervisor for approximately five of the years that Respondent taught at that school, testified that Respondent’s reputation for complying with the code of ethics is “excellent” and that Respondent always “monitored and cherished” her professionalism; one of Respondent’s co-workers at Avon Park Elementary School testified that Respondent is “a very effective and professional teacher”; and the students who testified at the hearing characterized Respondent as a good teacher. Respondent has administered the FCAT to her students since the test’s inception in the 1990s, and as a result, she is very familiar with what teachers can and cannot do when administering the test. Respondent and other teachers at Avon Park Elementary School received training on the administration of the 2003 FCAT, and as part of the training, Respondent received a copy of the Test Administration Manual for the 2003 FCAT. The Test Administration Manual is published by the state Department of Education (Department) and is distributed to teachers by the testing coordinators at each school. The school-level testing coordinators report to a testing coordinator at the school district level, who is ultimately responsible for the administration of the FCAT to the district’s students. The Test Administration Manual summarizes the “dos and don’ts” of test administration for the FCAT. It also includes a copy of the statute and rule governing test security, which for the 2003 FCAT were Section 228.301, Florida Statutes, and Florida Administrative Code Rule 6A-10.042. On the issue of test security, the Test Administration Manual explains that: it is not appropriate to talk with [students] about any test item or to help them answer any test item. For example, if students finish the test before the allotted time for the session has elapsed, or have not attempted to complete a question, it would be appropriate to encourage them to go back and check their work. It is not acceptable to provide the students with any information that would allow them to infer the correct answer, such as suggesting that they might want to check their work on a specific question. (Emphasis in original). The FCAT is required by state law to be administered annually to public school students in the third through tenth grades to measure the students’ proficiency in reading, writing, science, and math. The FCAT measures the students’ performance against state standards. The Norm Referenced Test (NRT), which is administered in conjunction with the FCAT, measures the students’ performance in math and reading against national standards. The FCAT is an important test, both to students and the schools. The student’s promotion to the next grade and/or class placement is affected to some degree by his or her performance on the FCAT. The school’s grade, which has an impact on the funding that the school district receives from the state, is also affected to some degree by the students’ performance on the FCAT. The math and reading portions of the 2003 FCAT were administered to fifth graders on Monday through Wednesday, March 3-5, 2003. The science portion of the FCAT and the NRT were administered the following week, on Monday through Wednesday, March 10-12, 2003. Throughout the 2002-03 school year, Respondent “taught the FCAT” and gave her class practice FCAT questions. She used the questions as teaching tools and to help prepare her students for the actual FCAT. Respondent would sometimes explain the wording of the practice questions to her students and, as needed, she would provide the students other assistance, both individually and as a class, while they were working on the practice questions. On Friday, February 28, 2003, Respondent administered two practice tests to her students in which she tried to simulate the environment in which the students would be taking the actual FCAT the following week. For example, the tests were timed and Respondent walked around the room as she proctored the tests. Respondent helped the students during the practice tests as she had done with the practice questions administered throughout the year. At one point, she stopped the test and reviewed a math problem on the board with the class because she observed a number of students having problems with a particular question. Respondent administered the math and reading portions of the actual FCAT to 18 students in her homeroom class on March 3-5, 2003. None of those students were exceptional education students who were entitled to special accommodations. Respondent did a 15 to 20 minute “mini-review” each morning that the students were taking the actual FCAT during which she went over terminology and concepts that the students might see on the test that day. Respondent started the administration of the actual FCAT by reading the directions verbatim from the “scripts” in the Test Administration Manual. Once the students began taking the test, she monitored them from her desk and she also walked around the room on a periodic basis. Respondent also went to students’ desks when they raised their hands. The Test Administration Manual contemplates that students might raise their hands and ask questions during the test; indeed, the “scripts” that the teacher is required to read verbatim state more than once, “Please raise your hand if you have any questions.” Respondent denied giving the students any assistance in answering the test questions on the actual FCAT. According to Respondent, when a student asked her about a particular test question, she told the student that “I can’t help you,” “go back and re-read the directions,” “do the best you can,” or other words to that effect. The Department’s testing coordinator, Victoria Ash, testified that responses such as those are acceptable. Respondent also made a general statement to the class during the test reminding the students to go back and check their work if they finished the test before the allotted time expired. Ms. Ash testified that a general reminder such as that is “absolutely acceptable.” Respondent’s testimony was corroborated by student J.M., who credibly testified that he recalled more than once hearing Respondent tell other students that she could not help them during the actual FCAT. Several students testified that Respondent helped them during the actual FCAT by explaining words that they did not understand, explaining how to solve math problems, and/or by suggesting that they check their work on particular problems. That testimony was not persuasive because it lacked specificity and precision, and other than A.P., B.B. (boy), and K.J., the students testified that they were not certain that the help they remembered receiving was on the actual FCAT rather than on the practice tests that they were given by Respondent. With respect to B.B. (boy), the undersigned did not find his testimony persuasive because he also testified that Respondent helped the entire class with a math problem during the actual test, which contradicted the statements given by the other students and which suggests that he was recalling events from the practice test during which Respondent gave such help to the entire class. With respect to A.P. and K.J., the undersigned did not find them to be particularly credible witnesses based upon their demeanors while testifying. There were other inconsistencies in the students’ accounts of Respondent’s administration of the FCAT that make their testimony generally unpersuasive. For example, B.B. (girl) testified that Respondent played classical music during the actual test, which was not corroborated by any other student in the class and was contradicted by Respondent’s credible testimony that she played music during the practice tests to relax the students but that she and the other fifth-grade teachers at Avon Park Elementary School made a conscious decision not to play music during the actual FCAT. As a result of the students’ apparent confusion regarding events occurring during practice tests rather than the actual FCAT, the inconsistencies in the students’ accounts of the events during the administration of the test, the general lack of specificity and precision in the students’ accounts of the events, and Respondent’s credible denial of any wrongdoing, the evidence does not clearly and convincingly establish the truth of the allegations against Respondent. In making the foregoing finding, due consideration was given to the investigation undertaken by the district-level testing coordinator, Rebecca Fleck, at the time of the allegations against Respondent, and the materials generated through that investigation. The reason for the investigation was a phone call that Ms. Fleck received on Wednesday, March 5, 2003, from a Department employee who told Ms. Fleck that the Department had received an anonymous complaint about Respondent’s administration of the FCAT. Ms. Fleck went to Avon Park Elementary School on Friday, March 7, 2003, to investigate the complaint. On that date, she met with the school’s assistant principal and interviewed several of the students in Respondent’s class. She also spoke briefly with Respondent to “get her side of the story,” which consistent with her testimony at the hearing, was an unequivocal denial of any wrongdoing. Ms. Fleck decided, based upon the student interviews, that Respondent should not administer the science portion of the FCAT or the NRT the following week. As a result, Respondent was assigned to work at the school district office on March 10-12, 2003, while her students were taking the tests on those dates. Ms. Fleck also decided to interview and get statements from all of the students in Respondent’s class, which she did on the following Monday and Tuesday, March 10 and 11, 2003. On those days, the students were called to the principal’s office in groups of two or three and they were asked to fill out a questionnaire developed by Ms. Fleck. Pam Burnaham, the principal of Avon Park Elementary School, and Ms. Fleck supervised the students while they filled out the questionnaires. The students were not told that Ms. Fleck was investigating alleged wrongdoing by Respondent; they were told that the purpose of the questionnaire was to find out about their “FCAT experience.” Ms. Fleck testified that she was confident that the students understood that the questionnaire related only to the actual FCAT and not any of the practice tests administered by Respondent; however, Ms. Burnaham testified that she did not place any emphasis on the distinction, and as noted above, the students’ testimony at the hearing indicates that they may have been confused on this issue. Ms. Fleck concluded based upon the students’ responses on the questionnaires that Respondent “coached” the students during the administration of the actual FCAT. As a result, she invalidated the tests of all 18 students in Respondent’s class. Ms. Fleck’s decision to invalidate the students’ tests was not unreasonable based upon what she was told by the students, which she believed to be true; however, the invalidation of the tests is not sufficient in and of itself to impose discipline on Respondent because, as discussed above, the truth of the students’ allegations was not clearly and convincingly proven at the hearing. Several of the students gave written statements to a Department investigator in late May 2003 regarding the help that they recalled being given by Respondent on the FCAT. No weight is given to those statements because no credible evidence was presented regarding the circumstances under which the statements were made, the statements were made several months after the events described in the statements, and as was the case with the questionnaires the students filled out for Ms. Fleck, the undersigned is not persuaded that the students understood at the time they were giving the statements that they were describing events that occurred during the actual FCAT rather than the practice tests that they were given by Respondent. There is no persuasive evidence that any of the students in Respondent’s class whose tests were invalidated suffered any adverse educational consequences. Even though the school administrators did not have the benefit of the students’ FCAT scores for purposes of placement and/or developing a remediation plan, they had other information on which they could make those decisions, including the students’ scores on the NRT, which was administered the week after the FCAT and was not invalidated. Other than being reassigned to the school district office during the administration of the NRT, Respondent did not suffer any adverse employment consequences from the school district as a result of the students’ allegations and/or the invalidation of the students’ tests. To the contrary, Respondent continued to get good performance reviews and her contract has been renewed twice since the administration of the 2003 FCAT. Respondent did not administer the 2004 FCAT because this case was still pending. She was given other duties at Avon Park Elementary School while her students were taking the 2004 FCAT.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2005, 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 6th day of April, 2005.
Findings Of Fact Petitioner is a longtime Florida resident, having moved to the state when she was five, and thereafter was reared and educated in Dade County Florida. Petitioner received an AA degree from Dade County Junior College, a BA from Florida Atlantic University in Boca Raton, Florida, and a Masters Degree from Lone Mountain College in San Francisco, California via an external program based in the Miami/Dade area. In pursuit of a Ph.D. in psychology, Petitioner applied to Union was accepted and matriculated there from 1981 through 1953, and received her Ph.D. in psychology on June 29, 1953. Upon receipt of her Ph.D. degree in psychology, Petitioner was required to fulfill a one-year post-doctoral supervision prior to applying for certification to take the psychology licensure examination. Section 490.005, Florida Statutes (1953). Petitioner satisfied this requirement from June 30, 1953 to June 30, 1954 by engaging in psychotherapy under the supervision of Dr. Ted Aidman. Petitioner then applied to the Board for certification to take the psychologist licensure examination. Petitioner applied to take the examination under the provisions of Section 490.OO5(1), Florida Statutes (1953) and in pertinent part is quoted below: Any person desiring to be licensed as a psychologist shall apply to the department to take the licensure examination. The department shall license each applicant who the board certifies has: * * * (b) Submitted proof satisfactory to the Board that he has received a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or that he has received a doctoral degree in psychology from a university or professional school maintaining a standard of training comparable to the standards of training of those universities having programs approved by the American Psychological Association or the doctoral psychology programs of the state universities. The Board adopted Rule 21U-11.06, Florida Administrative Code, to implement Section 490.005, Florida Statutes (1983) and essentially codified the criteria for American Psychological Association (APA) approved programs for the first time in this rule. The rule took effect on April 5, 1984. The pertinent part of the rule is quoted below: In order to be certified by the Board as eligible for examination pursuant to Section 490.005(1), Florida Statutes, an applicant must: * * * Submit proof of the completion of a doctoral degree with a major in psychology from a university or professional school that has a program approved by the American Psychological Association or a doctoral degree in psychology from a university or professional school maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association. For the purpose of determining whether an applicant's doctoral degree in psychology was received from a university or professional school maintaining a standard of training comparable to those universities having programs approved by the American Psychological Association the Board will apply the following criteria: (emphasis supplied) Education and training in psychology must have been received in an institution of higher education accredited by one of the regional accrediting bodies recognized by the Counsel on Postsecondary Accreditation. * * * 5. The doctoral program must be an organized, integrated sequence of study designed by the psychology faculty responsible for the program. The American Psychological Association Accreditation Handbook, Criteria For Accreditation of Doctoral Training Program and Internship in Professional Psychology (Handbook), adopted in January 1979 and amended in January 1950, sets out criteria that the doctoral programs must meet to be eligible for accreditation by APA and in pertinent part are listed below: A. Training in professional psychology is doctoral training offered in an institution of higher education accredited by one of the six regional accrediting bodies recognized by the Council of Postsecondary Accreditation (COPA). * * * The faculty of the program must have clear authority and primary responsibility for all aspects of the program (even if the program cuts across institutional administrative lines). The program must include an integrated, organized plan of study and must ensure a breadth of exposure to the field of psychology. In the Introduction of A Handbook of Accreditation (Petitioner's Exhibit 7, page 1) accreditation is defined as both a process and a result and in pertinent part is quoted below: As a process, it is a form of peer review in which educational institutions establish a set of criteria and procedures by which they and their fellows are judged. As a result, it is a form of certification by which the qualify of an educational institution, as defined by the accrediting body's criteria, is affirmed. The forms of Affiliations are discussed in A Handbook of Accreditation and in pertinent part quoted below: Postsecondary educational institutions may be affiliated with the Commission on Institutions of Higher Education, and through it with the Association, in either two ways. One is membership, which is synonymous with accreditation; the other is candidacy, a preaccreditation status. [page 3] . . . an institution continues its candidacy for accreditation for a fixed period of time - usually no longer than six years - until it either fulfills the Criteria for Accreditation or has its affiliation with the Commission terminated. [page 3] . . . Candidacy indicates that an institution meets the Criteria for Candidacy for Accreditation and is progressing toward accreditation; it does not, however, auto- matically assure eventual accreditation . . . [page 3, 4] The North Central Association of Colleges and Schools' evaluative criteria for candidacy highlight that such standards differ from accreditation standards. A Handbook of Accreditation explains the second evaluation criteria as follows: This criteria differs from the second evaluative criterion for accreditation in that it speaks of a candidate's accomplishing its immediate purposes. The difference is meant to acknowledge that a candidate is not yet fully developed to the point at which it has the ability to accomplish all of its purposes. [page 19] The fourth criteria for candidacy status indicates that candidacy status is not equivalent to accreditation. The fourth evaluative criteria reads in pertinent part: 4. The institution has the potential to achieve accreditation within the candidacy period. In making this judgment, the candidate's present condition, its plans and its timetable for developing to the point where it meets the Criteria for Accreditation must be examined. Candidacy is of a limited duration, and the Commission seeks to determine through this criterion that the candidates current plans are likely to allow it to achieve accreditation within this limited period. [page 20] Union received formal accreditation on February 25, 1985 by the North Central Association for Colleges and Schools, Commission on Institution of Higher Education ("Commission"), a regional accrediting body recognized by the Counsel on Postsecondary Accreditation. During Petitioner's matriculation at Union, and at the time she graduated, Union was in a candidacy status or a preaccreditation status. Union was in candidacy status from 1979 to 1985, a period of six (6) years which is considered the maximum period without special Commission action for extension. Union had to satisfy all thirteen (13) general institutional requirements and all four (4) evaluative criteria to be granted candidacy status. To achieve accreditation, Union had to sustain and maintain the same thirteen (13) institutional requirements and satisfy a similar, but different group of four (4) evaluative criteria. The same general institutional requirements and basically the same evaluative criteria are required for both candidacy status and accreditation but candidacy and accreditation are not the same. In candidacy status the institution is trying to assure the Commission of its ability, financial and otherwise to maintain a viable program. In accreditation the certification has been affirmed. No evidence was presented to show that APA, in its approval process, would substitute candidacy status for accreditation status. In fact the evidence was conclusive that regional accreditation was an important standard and a reasonable criterion in the evaluation and approval of psychology programs by the APA. The evidence is clear that the accreditation requirement of the rule in question is comparable to the requirement of regional accreditation by APA in its approval process. To demonstrate that a program is able to produce qualified health professionals the APA requires that a program must articulate what the program is and what that program requires. A pertinent section in the Handbook under Training Models and Curricula, page 5, is quoted below: C. The foundation of professional practice in psychology is the evolving body of know- ledge in the discipline of psychology. While programs will vary in emphasis and in available resources, sound graduate education in general psychology is therefore essential in any program. The curriculum shall encompass the equivalent of a minimum of three academic years of full-time resident graduate study. Instruction in scientific and professional ethics and standards, research design and methodology, statistics, psychological measurement, and history and systems of psychology must be included in every doctoral program in professional psychology. . . (emphasis supplied) The requirement of a sequenced course of study is an important and essential criteria of the APA in the training of a psychologist. The evidence is clear that the requirements of Rule 21U- 11.06(1)(b)5., Florida Administrative Code, are comparable to the standards for APA approval of a doctoral program with regard to the design of study by the faculty even though the language "sequence of study" does not appear in the APA standards. Dr. Charles A. Brownfield graduated from Union, Antioch College receiving his Ph.D. in psychology on October 1, 1971 and was licensed by the Florida State Board of Examiners in 1973 under a statute with language similar to that of Section 490.005(1)(b), Florida Statutes (1983). The evidence is insufficient to show that APA was approving doctoral psychology programs in 1971 or, if it was, whether the standards used at that time were the same as those standards adopted by APA in 1979 and amended in 1980. The statute under which Dr. Brownfield was licensed was repealed, effective July 1, 1979, by Chapter 77-457, Section 1, Laws of Florida and he was then licensed by exception under the new statute in 1982. The evidence is insufficient to show that any person graduating from Union between 1979 when APA adopted its standards for approving doctoral psychology programs and the effective date of the rule on April 5, 1984 was permitted by the Board to take the examination for licensure.
