Findings Of Fact Roger Williams College was chartered as a non-profit corporation December 11, 1975, and was excluded from licensure requirements from 1976 through 1981 pursuant to Chapter 246, Florida Statutes. In 1982 Chapter 246 was revised. Prior to the revision institutions such as Respondent were granted exclusions from licensure upon application therefor by the institution. The repeal and reenactment of Chapter 246 in 1982 required certain conditions be shown by the institution before exemption from licensure requirements would be granted. These requirements were furnished to all colleges and universities in Florida by Petitioner. By letter dated January 31, 1983 (Exhibit 1), Respondent was furnished appropriate forms upon which to apply for exemption and requested to provide certain information required by statute. The information submitted by Respondent included a catalog which: Was not dated. Contained an address in Tampa and an address in Dade City. In 1979 Respondent had advised Petitionerits current address was Tampa. Did not contain course descriptions. Stated requirements for doctor of ministry degree include 90 semester hours in residence and lists courses in 100-400 level. On page 8 the catalog states that subjects numbered 100-499 are especially for under- graduate credit, and those in the 500's are for graduate credit. Contained no specific course requirement for the degree of Master of Religious Education or Doctor of Religious Education degrees. Represented the location of the college at which its services will be offered as 5th and Florida, Dade City, Florida, while no such facility exists. States all admissions are under the control of the Dean of Admissions, yet such a position is not shown in the catalog on the administrative staff. Contained no required standards for students to achieve satisfactory progress. The address of the college at 13027 North 52nd Street, Tampa, Florida, is owned by Andrew McAllister, the president of Respondent, and is a brick two- story building looking like the other residences in the vicinity. No sign or other indication is posted to identify this building as Roger Williams College. Copies of degrees other than Bachelor of Theology or Bachelor of Religious Education were never provided by Respondent as requested by Petitioner.
The Issue Whether respondent's teaching certificate should be suspended or revoked on grounds that he violated Sections 231.09 and 231.28, Florida Statutes (1979), by knowingly obtaining and filing a fraudulent university transcript with the Florida Department of Education for the purpose of being certified in the additional field of elementary education.
Findings Of Fact I. The Respondent: Background l. Respondent, a 44-year-old school teacher, has taught at Dade County elementary schools since 1966. He obtained a bachelor of science degree at Southern University in 1962. Later, he completed several postgraduate elementary education courses at Miami-Dade Community College and the University of Miami; in 1977, he earned a master's degree from Nova University. In his postgraduate courses, he earned almost straight "A's," with an occasional "B." (Testimony of Parker; P-6.) From 1966-1977, Respondent held a rank III (graduate) teaching certificate issued by the Florida Department of Education. After obtaining his master's degree in 1977, he was issued a rank II (post graduate) teaching certificate; however, although qualified in other areas, he was not certified to teach in the field of elementary education. (Testimony of Parker; P-6.) From 1974-1979, Respondent taught at Biscayne Elementary School in Dade County; since he was not certified in elementary education, he taught "out of his field." Teachers, such as Respondent, who taught out of their certified fields were required to complete at least six credit hours per year toward obtaining certification in the field in which they were teaching. Between 1977 and 1979, the Dade County School Board ("School Board") reminded its teachers of this requirement, that if they did not take the necessary ongoing course work, they would be required to return to their certified field of instruction. (Testimony of Gray.) Earlier, Respondent had hoped that, by obtaining his master's degree, he would complete enough courses to qualify for certification in the field of elementary education. However, his 1977 postgraduate teaching certificate did not certify him in elementary education. Sometime in early 1978, he calculated that 18 additional postgraduate credit hours would entitle him to be certified in elementary education, the area in which he preferred to teach. (Testimony of Parker.) II. Sutton Helps Respondent Enroll and Take Courses at Florida A & M University At all times material to this case, Eugene Sutton was employed by Florida A & M University ("Florida A & M") in Tallahassee, Florida, as its supervisor of intern teachers. In this capacity, Sutton would travel around the State, visiting interns and talking to supervising teachers. If problems were encountered, he would offer assistance. (P-4.) Sutton had been introduced to Respondent by Rosalyn Bethel, another faculty member at Biscayne Elementary School. In early 1978, Sutton--who had visited the school numerous times--walked into Respondent's classroom and asked him where he had attended school. When the conversation turned to various universities, Sutton stated that Florida A & M offered courses that could be taken by working people; he volunteered to help Respondent take such courses: [H]e [Sutton] said that he was able to reg- ister me, give me my work, and take it back to the instructors or the University, and I would get credit. (Tr. 76.) (Testimony of Parker; P-3.) Respondent accepted Sutton's offer. Shortly thereafter, he gave Sutton the registration fees (required by the university catalog) for nine credit hours. As promised, Sutton registered Respondent for elementary education courses at Florida A & M for the Spring Quarter of 1978. Respondent received a receipt from the university indicating his enrollment. During the ensuing months, Sutton would frequently exchange course materials with Respondent: Sutton would give course assignments to Respondent; Respondent would give Sutton completed course work for delivery to the various university instructors. (Testimony of Parker.) Respondent reasonably believed that he was properly completing course work assigned by his university instructors. The course work bore course titles and names of various instructors. Sutton was a faculty member at the university, a person in authority with important responsibilities. Respondent had no reason to distrust him or suspect him of wrongdoing. (Testimony of Parker, Gaines.) After finishing the Spring Quarter, Respondent enrolled at Florida A & M again, (through Sutton) for nine more credit hours (three courses) in elementary education during the Summer Quarter of 1978. The procedure was the same: He paid Sutton the required registration fees and received a receipt from the university. Sutton then brought course assignments (with textbooks) to Respondent, who, after completing them, gave them to Sutton for delivery to the various university instructors. Respondent never attended the university's Tallahassee campus or spoke directly with his instructors. (Testimony of Parker.) The elementary education courses which Respondent took at Florida A & M during 1978 were not directed individual study courses--courses which can be completed without attendance at the university's campus. However, Respondent-- at the time he selected these courses--did not know that they required attendance at the university. Sutton helped him select the courses from the university's course catalog, and he relied on Sutton as a university faculty member. (Testimony of Parker.) Respondent was unable to produce tuition receipts or work assignments associated with his course work because his house had been vandalized (and his records damaged) when he was hospitalized in September, 1979. 3/ (Testimony of Parker.) III. Respondent Receives a University Transcript At the conclusion of the Spring and Summer Quarters of 1978, Respondent received a copy of a course transcript from Florida A & M. The transcript--the original of which is part of the official records of the university--indicated that Respondent took six courses (18 credit hours) during the two quarters but successfully completed only three of them; that he earned only nine credit hours because of two "I's" (incompletes) and one "F" (failure). His grade-point average for the two quarters was 2.25. (Testimony of Parker; P- 3, P-4, P-8.) Although the transcript appeared to be valid and authentic, Respondent was surprised at the two "I's" and the "F." He had completed all his course assignments and had given them to Sutton; he did not expect an "F" when he was accustomed to earning A's and B's in postgraduate courses. 4/ Respondent then confronted Sutton. (Testimony of Parker.) Sutton explained that he (Sutton) had been late in delivering Respondent's course work to the university, and that Respondent would receive the correct grades. Shortly thereafter, Respondent received a corrected transcript indicating that he successfully completed (with B's) the three courses which had earlier been "I's" and an "F." He believed the corrected transcript was valid and authentic; however, he did not understand how the "F" could be corrected to a "B" when Sutton's explanation attributed the incorrect grades to the late submittal of course work. 5/ (Testimony of Parker.) Shortly thereafter--on May 31, 1979--Respondent completed an application for extension of his teaching certificate (to extend his area of certification to include elementary education) and gave it to Sutton, with the $5 application fee, for delivery to the Florida Department of Education. Subsequently, the Department granted him the requested extension of his teaching certificate. (Testimony of Parker, Gray; P-6.) The corrected transcript was, in fact, false. Upon discovery of that fact, the School Board suspended Respondent from his employment and conducted an investigation. On November 19, 1980, the School Board reinstated Respondent to his position after learning that Respondent was not the subject of criminal prosecution. (Testimony of Gray.) IV. Findings of Fact Proposed by Parties The findings of fact proposed by the parties have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the charges against Respondent be dismissed. DONE AND RECOMMENDED this 22nd day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1981.
Findings Of Fact The parties. Petitioner, Frank Petruzielo, is the Superintendent of Schools, Broward County, Florida. Petitioner is obligated by law to recommend the placement of school personnel, require compliance and observance by all personnel with all law and rules, and report any violation thereof, with appropriate disciplinary action, against any school personnel failing to comply therewith to the School Board of Broward County, Florida. Respondent, Josue Narvaez, was at all times material hereto an employee of the School Board of Broward County, Florida, holding a professional services contract as a teacher, and was employed as the Foreign Student Advisor at Atlantic Vocational Technical Center. The charges. By administrative complaint dated March 8, 1995, petitioner has charged respondent with "immorality," "misconduct in office," and "gross insubordination or willful neglect of duties," based on his contention that respondent charged students a fee to translate foreign diplomas and certificates which he was required to translate and evaluate as part of his job duties, accepted monies for such services during school hours and on school property, and had such documents notarized by School Board employees during school hours; and, that respondent submitted false claims for medical reimbursement to the administrator of the School Board's medical reimbursement account. Respondent, although admitting that he charged students a fee for translating documents, has denied that such activity was improper, and further denied that he submitted false claims for medical reimbursement. The proof relating to the charge that respondent charged for translation services. Atlantic Vocational Technical Center is an educational unit of the Broward County School Board which provides educational opportunities for residents of Broward County. Among those residents is a large population of foreign speaking students including, inter alia, students of Haitian and South American origin. In the case of Haitian students, their predominate language is Creole, and their previous educational experiences are generally reflected in documentation written in the French language. On the other hand, the students of South American origin are generally speakers of Spanish, and their previous educational experiences are generally reflected in documentation written in the Spanish language. To properly place this population of foreign speaking students in the school's vocational programs, it is necessary to provide a language assessment, as well as an assessment of the documentation reflecting their previous educational experiences, to assure that each student has the basic credentials or prerequisites for any particular vocational program. Respondent, who is fluent in English, French, and Spanish, and conversational in Creole, was initially engaged part-time and ultimately full-time as the school's foreign student advisor and, as such, functioned as the "point person" for any foreign student entering the school. As the foreign student advisor, it was respondent's obligation to counsel and intake such students, provide needed language assessments, and to review or evaluate the documentation they possessed reflecting their previous educational experiences to validate their level of attainment, and to provide the school with a written evaluation or statement of educational credentials certifying the student's level of academic education, i.e., that the student had "attained a level of academic education which is at least equal to that of high school completion in the United States System of education." 1/ Given respondent's fluency in French and Spanish, coupled with his job related responsibility to validate, as necessary, a foreign student's prior level of academic achievement, it was reasonable for the school to expect that respondent would utilize his language skills to provide the needed evaluation without the need to resort to a written translation of the student's documentation reflecting previous educational experience. Indeed, written translations of such documents, where the school had on staff employees fluent in the student's language, was not a requirement for evaluation or entry into the school's programs. Notwithstanding the expectations of his employment, respondent routinely advised students who sought such an evaluation and validation that he would not provide the service absent a written translation of their foreign certificates, diplomas or other documentation into the English language. According to respondent, he advised the students that he could, for a fee, provide the translation service or they could use the services of an outside translator. Where he provided the service, respondent routinely did the translations at his home during his off-duty hours, but had the written translation notarized by one of the registrars at the school during the school day, and delivered the documents to the student at the school during the school day. For such services, respondent generally charged from $20.00 to $50.00, depending on the number of documents that were translated. That respondent was charging for such services was apparently reported by various students to Marie Marseille, a teacher assistant in the SAIL (System of Applied Individualized Learning) program, who in turn reported such statements to Lynne Husted, the department head for the SAIL program at the school. Ms. Husted was apparently of the opinion that she "could do nothing unless a student would come to [her] directly," and took no action until late September 1994 following a conversation with a former student, Baron Pyram. In September 1994, Baron Pyram, a former student, approached Que Nghiem at the school to seek assistance in securing a written translation of a diploma he had received in auto mechanics while a resident in Haiti. According to Baron, he needed the translation by the next day so he could seek employment. Mr. Nghiem, a teacher, referred Baron to the respondent. Ms. Husted, hearing of the referral, told Baron to follow Mr. Nghiem's direction but if respondent requested a fee for the service to return to her and she would see that it was translated for free. Baron did request that respondent translate his diploma, but notwithstanding Ms. Husted's advice, agreed to pay respondent a fee of $25.00 and gave respondent an $8.00 deposit. The following day, Baron picked up the translation from respondent at the school, duly notarized by one of the registrars, and paid respondent the balance owed. Following the transaction, Mr. Crawford, the school principal, met with respondent in respondent's office and asked him about the transaction. Respondent freely admitted he had done the translation for Baron for $25.00, and refused, despite Mr. Crawford's request, to return the $25.00 to Baron. Given the circumstances, it was respondent's opinion that there was no impropriety in his accepting a fee from Baron for such service. With regard to the Baron Pyram transaction, the proof fails to demonstrate any impropriety in respondent's acceptance of a fee for his translation services. Baron was not a student at the time, Baron specifically requested the translation, the translation was unrelated to respondent's job duties as a foreign student advisor, and the translation itself was done at respondent's home and not during school hours. That respondent accepted the fee for the service on school property has not been shown to be improper, and his use of a school registrar to notarize his translation has likewise not been shown to be improper. 2/ Indeed, respondent's testimony that the registrar's notarization of documents for school employees was a routine courtesy is accepted, and the provision of such courtesy was not shown to have been time- consuming or disruptive of the registrar's regular duties. Notwithstanding the lack of impropriety in the Baron Pyram matter, the proof does support the conclusion that respondent's refusal to evaluate and validate the prior level of academic achievement of foreign students, absent a written translation into English, was contrary to his job duties as foreign student advisor. The proof further supports the conclusion that his advice to foreign students that such translations were required for an evaluation was false and deceptive, and that the use of such deception was instrumental in his attracting fees for translation services that were otherwise not required by the school or for an evaluation of their educational status. The proof relating to the charge that respondent submitted forged/fraudulent claims for medical reimbursement. Incident to his employment with the School Board, respondent was accorded the opportunity to participate in the School Board's reimbursement account. Such account is a voluntary program where employees may allocate pretax dollars under the Internal Revenue Service Code for medical expenses, and from which they may seek reimbursement for medical expenses that are not covered by insurance and thereby save tax dollars. For the 1993 tax year, respondent elected to participate in the program at a rate of $100.00 each month for a total of $1,200.00 annually. Notably, under the program, as regulated under the Internal Revenue Service Code, respondent's entire $1,200.00 annual commitment, although sheltered at $100.00 each month, is available on January 1st of the tax year to pay nonreimbursed medical expenses. The School Board, as respondent's employer, essentially funds the account as of January 1st of the tax year, and recovers the monies over the course of the year by monthly salary redirection, provided respondent continues to be employed. On or about January 7, 1993, respondent submitted to First Benefits, Inc., the administrator of the School Board's medical reimbursement account, a claim for $1,165.00 for eye care services respondent claimed were rendered by Dr. Jerry Siegel. Attached to the claim were two statements, one reflecting a date of service of January 4, 1993, for respondent at a total charge of $595.00, and a second reflecting a date of service of January 6, 1993, for respondent's daughter at a total charge of $570.00. Notably, at $1,165.00, the claim respondent submitted in January was only $35.00 short of his annual participation and, if accepted for payment, would have required the School Board to effectively pay respondent the amount of the claim, with the expectation that such sums would be recovered over the course of the year from respondent's monthly salary reduction. On January 25, 1993, First Benefits, Inc., denied respondent's claim for reimbursement predicated on advice from Dr. Siegel that "the services in question were not rendered on the dates enclosed." At hearing, the proof demonstrated that the statements for services to respondent and his daughter for January 4, 1993, and January 6, 1993, were fabrications, and that Dr. Siegel had rendered no such services to respondent or his daughter. Accordingly, the proof supports the conclusion, as alleged by petitioner, that "[r]espondent submitted forged/fraudulent claims for medical reimbursement to the administrator of the School Board's medical reimbursement account."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered sustaining respondent's suspension, and terminating his employment with the School Board of Broward County, Florida. DONE AND ENTERED this 11th day of September 1995 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September 1995.
The Issue The issue is whether the following rules are invalid exercises of delegated legislative authority: Florida Administrative Code Rules 64B1-2.008; 64B1-6.002(1), (4) (only the following language: "is responsible for filing provider approval applications and"), (5), (8) (only the following language: ". . .n approved"), and (10) (only the following language: "individual,"); 64B1-6.005(4); 64B1-6.006(1), (8) (only the following language: "approved"), and (11); 64B1-6.007(1) and (2); and 64B1-6.008(1) and (2).
Findings Of Fact Petitioner received his degree in Acupuncture and Oriental Medicine in 1997. He subsequently obtained a license, under Chapter 457, Florida Statutes (2003), and is now an acupuncture physician, practicing Acupuncture and Oriental Medicine. Petitioner has been a member of numerous acupuncture organizations. Respondent has approved Petitioner, individually, as a continuing education provider, under provider number BP02-92. To obtain such approval, Petitioner has twice paid Respondent $100 for a two-year approval as an acupuncture continuing education provider. Respondent has also approved the Acupuncture and Oriental Medicine National Coalition Corp. (NCC), which is a Florida for-profit corporation, as an acupuncture continuing education provider. Incorporated on March 3, 2003, NCC has paid Respondent $100 for approval as an acupuncture continuing education provider. Petitioner and David Sontag are the sole officers, directors, and shareholders of NCC. Each shareholder owns half of the company's stock. The purpose of NCC is to raise the standards of the acupuncture profession nationally, including educational standards, and to support the advancement of "acupuncture and oriental medicine." NCC has about 300 members residing in Florida and 1000 members nationally. Membership, which is free, entitles the member to benefits, such as access to information on the NCC website and negotiated discounts from other service providers, but not to rights in governing the corporation. Respondent has approved NCC as a "State or National Acupuncture and Oriental Medicine Organization," pursuant to Section 457.107(3), Florida Statutes (2003). In November 2001, Petitioner coordinated an acupuncture continuing education program in Fort Lauderdale for another provider. In 2002, Petitioner sponsored an acupuncture continuing education program in Florida on electro-acupuncture. On August 23, 2003, Petitioner taught a weekend acupuncture continuing education program sponsored by NCC. Petitioner obtained Respondent's approval for the electro-acupuncture course, but the process took nine months to complete. However, the record is insufficient to determine the cause or causes for the delay and, thus, who was responsible for it. At least 60 days before conducting the course, Petitioner paid the $50 program approval fee and submitted the approval forms. When Petitioner inquired about the approval, Respondent's executive director advised him to provide the course, pending approval. Petitioner thus was unable to advertise the course as approved by Respondent and instead advertised only that the sponsor had applied for Respondent's approval. Nearly 100 persons attended the electro-acupuncture course, paying $65 each. However, Petitioner netted only $350 on the program because of the expenses in advertising the program, renting a hotel, and other items. NCC obtained Respondent's approval for its course in August 2003 within two weeks of submitting its application. NCC submitted the required forms and the required $100 check. Persons attending the NCC course received their acupuncture continuing education credits from Respondent. Petitioner is substantially affected by the rules that he has challenged. Petitioner has sponsored an acupuncture continuing education course and, as an employee, taught another course that was sponsored by NCC. It may be reasonably expected that Petitioner will participate in future acupuncture continuing education programs in one or both of these capacities. The rules concerning a filing fee for approval require a modest fee, but NCC's net on the one course for which detailed financial information was provided suggests that the provider is substantially affected by even a modest fee, given the relatively little profit that ensued from that course. In their entirety, the subject rules in this case are as follows (challenged portions underlined): 64B1-2.008 Continuing Education Program Approval Fee. The continuing education program approval fee shall be $50. Specific Authority 457.104, 457.107(3), Florida Statutes. Law Implemented 457.107(3), Florida Statutes. History–New 5- 12-87, Amended 9-15-92, Formerly 21AA-2.008, 61F1-2.008, 59M-2.008, Amended 10-15-97. 64B1-6.002 Definitions. “Approved” means acceptable to the Florida Board of Acupuncture. “Board” means Florida Board of Acupuncture. “Committee” means Committee on Continuing Education of the Board. “Contact Person” means one who is responsible for filing provider approval applications and insures compliance with these rules, maintains complete rosters of participants, and is knowledgeable about the provider’s program(s). “Correspondence Program” means an approved program offered by mail with a defined course of study to be completed by the participant for which an evaluation of performance is made and a rating of satisfactory or unsatisfactory completion of the course is given by the provider. “Credit Hour” means a minimum of 50 minutes and a maximum of 60 minutes of class time. One-half (1/2) credit hour means a minimum of 25 minutes and a maximum of 30 minutes of class time. “Department” means the Department of Health. “Participant” means an acupuncturist who attends a program presented by an approved provider in order to achieve the stated objectives of the program. “Program” means a planned educational experience dealing with a specific content based on the stated objectives. “Provider” means the individual, organization or institution conducting the continuing education program. Specific Authority 456.013, 456.025, 456.033, 457.104, 457.107(3) Florida Statutes. Law Implemented 456.013, 456.025, 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Formerly 21AA-6.002, 61F1-6.002, Amended 1-16-97, Formerly 59M-6.002. 64B1-6.005 Standards for Approval of Continuing Education Credit. A continuing education program must contribute to the advancement, extension or enhancement of the licensee’s skills and knowledge related to the practice of acupuncture and oriental medicine. Programs should concern the history and theory of acupuncture, acupuncture diagnosis and treatment techniques, techniques of adjunctive therapies, acupuncturist-patient communication and professional ethics. All continuing education courses are subject to evaluation and approval by the Board to determine that the continuing education course meets the criteria established by the Board which has final determination as to the number of hours of acceptable credit that will be awarded for each program. Each program offered for continuing education credit must be presented or taught by a person who at a minimum holds a bachelor’s degree from an accredited college or university or a post-secondary education institution licensed by the State of Florida, with a major in the subject matter to be presented; or has graduated from a school of acupuncture, or has completed a tutorial program which has a curriculum equivalent to the requirements in this state and was approved by a state licensing authority, a nationally recognized acupuncture/oriental medicine association or a substantially equivalent accrediting body, and has completed three (3) years of professional experience in the licensed practice of acupuncture; and has a minimum of two (2) years teaching experience in the subject matter to be presented, or has taught the same program for which approval is sought a minimum of three (3) times in the past two (2) years before a professional convention, professional group or at any acupuncture school, or has completed specialized training in the subject matter of the program and has a minimum of two (2) years of practical experience in the subject. In order to meet the continuing education requirements, the continuing education program submitted by the licensee must meet the criteria established by the Board. No credit will be given for programs which are primarily devoted to administrative or business management aspects of acupuncture practice. To receive credit for programs on HIV/AIDS, the program must be, at a minimum, two (2) hours in length and must address the areas mandated in Section 456.033, F.S. The Board accepts HIV/AIDS programs presented or conducted by the Department of Health and programs approved by other professional regulatory boards for the health professions. Continuing education programs related to laboratory test or imaging findings shall be designed to provide course content on the clinical relevance of laboratory and diagnostic tests and procedures as well as biomedical physical examination findings and to advance, extend or enhance the licensee’s skills and knowledge related to the safe and beneficial use of laboratory test and imaging findings. Specific Authority 456.013(9), 456.033, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(9), 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 8-6-89, Formerly 21AA-6.005, 61F1-6.005, Amended 3-18-97, Formerly 59M- 6.005, Amended 6-1-99, 1-7-03. 64B1-6.006 Requirements for the Provider. Each provider shall: File all information necessary for provider and program approval on Forms DOH/AP007, Continuing Education Course Approval Applications, DOH/AP006, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office. Insure that the continuing education program(s) presented by the provider complies with these rules. Maintain a complete, alphabetized, legible roster of participants for a period of 3 years following each program presentation. Maintain a “sign-in” sheet and a “sign- out” sheet with the signatures of participants. Provide each participant with a certificate certifying that the participant has successfully completed the program. The certificate shall not be issued until completion of the program and shall contain the provider’s name, title of program, date of program, location, and number of credit hours. Notify the Board of any significant changes relative to the maintenance of standards as set forth in these rules. Ensure that no person receives credit for the same program more than once. Notify the Board of any change in the presenters or instructors of any approved program, and demonstrate the new instructor meets the criteria set forth in subsection 64B1-6.005(2), F.A.C. Designate a contact person who assumes responsibility for each program, and who is knowledgeable about each program. The contact person shall notify the Board of any significant changes in programs or a lapse in the maintenance of standards. In a correspondence continuing education program, each provider is responsible for obtaining from each certificateholder a signed statement which states that the participant did in fact read the material, performed the exercises and took the examination personally. A clearly defined refund policy shall be in the flyer. There shall be adequate personnel to assist with administrative matters and personnel with competencies outside content areas in cases when the method of delivery requires technical or other special expertise. Providers shall maintain records of individual offerings for inspection by the Board; records shall include subject matter, objectives, faculty qualifications, evaluation mechanisms, credit hours and rosters of participants. Specific Authority 456.013, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 7-25- 88, Formerly 21AA-6.006, 61F1-6.006, Amended 3-18-97, Formerly 59M-6.006, Amended 2-18-98. 64B1-6.007 Preapproved Providers. Subject to the requirements of Rule 64B1-6.005 and subsections 64B1-6.007(3) through (5), F.A.C., the Board approves for continuing education credit programs offered by: (a) The Continuing Education Committee of the American Association of Oriental Medicine (AAOM); (b) The Florida State Oriental Medicine Association (FSOMA); (c) Individual member schools of the Colleges of Acupuncture and Oriental Medicine (CCAOM); and (d) The National Alliance for Acupuncture and Oriental Medicine. A nonrefundable processing fee of $50 must be submitted with each registration of course offering. Each program offering shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; and Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C. Upon processing of a program offering, the Board will assign an identification number to that program. Upon receipt by the provider of the course identification number, the provider may identify the program as “approved by the Florida Board of Acupuncture for purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.007, Amended 7-4-94, Formerly 61F1-6.007, Amended 4-10-97, Formerly 59M-6.007. 64B1-6.008 Process for Program Approval. Each program to be offered by an approved provider must be approved by the Board. Applications for approval Form DOH/AP007, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office shall be submitted to the Board Office at least 60 days prior to the date of presentation. Each program application shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C.; and A nonrefundable fee of $50.00. Upon approval of a program, the Board will assign an identification number to that program. If approved, the provider may identify the program as “approved by the Florida Board of Acupuncture for Purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.008, 61F1-6.008, Amended 1-16-97, Formerly 59M-6.008, Amended 2-18-98. The forms mentioned in Florida Administrative Code Rule 64B1-6.006(1) involve two approval processes. Form DOH/AP007, which is also mentioned in Rule 64B1-6.008(1), is the application for Respondent's approval of the provider. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP007 comprises two pages of instructions, a copy of Florida Administrative Code Rule 64B1-6.005, and a four- page application. The instructions state: "Application Fee: $100 (Non- Refundable). The remainder of the instructions explain the items set forth in the application. The checklist at the end of the instructions restates the requirement to submit a $100 check or money order. The first page of the application states: "$100 non- refundable application fee." It asks whether the application is a "renewal application." The first page also asks the name of the "organization" and its "continuing education director," as well as contact information, such as mailing address. The first page asks four questions: Does your organization monitor attendance to assure those in attendance have been present for the entire program for which they receive credit? Does your organization assign an identifiable person to be present at continuing education activities who is responsible for recording attendance? Does your organization have facilities available to store records for at least 3 years? Have you attached a curriculum vitae for each instructor? The first page concludes with an affidavit signed by the continuing education director, although not notarized, and stating that he or she represents that the information in the completed form is accurate and will comply with the rules contained in Florida Administrative Code Chapter 64B1-6.006. The second page of the application is a certificate of completion. It requests the name, license number, and address of the licensee attending the program; the name and address of the provider; and the site, course title, continuing education hours awarded, and name of the instructor. The third page of the application is Form C: Course Offering Data Form. This page requires the provider to list the educational objectives of the course and the continuing education hours and subject matter for each objective. The form also requires the identification of the teaching methods. The fourth page of the application is Form D: Course Offering Data Form. This page requires the provider to list the name and job title of each instructor and his or her relevant education and experience. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP006 comprises one page of instructions, a copy of Florida Administrative Code Rules, 4B1-6.005 and 64B1-6.008, and a three-page application, the last two pages of which are identical to the last two pages of the Form DOH/AP007 application. The first numbered instruction requires: "Prior to offering or advertising a continuing education course, the provider must have registered by way of submitting this application: the course, along with any materials to be offered and the name and qualifications of the instructor . . .." This instruction warns: "If you have failed to submit all of the above, you will not be eligible to offer the course for continuing education credit. NO RETROACTIVE CREDIT IS GRANTED BY THE BOARD." The second numbered instruction requires the provider to submit any material to be used in a home-study course. The third numbered instruction requires a "nonrefundable fee of $50" with "each program application." The first page of the application requires identifying information for the provider and program, as well as disclosure of whether the course for which approval is sought is a previously approved course with a new or additional instructor, a new course, or a previously approved course with different credit hours. The first page also states that instructors must meet the qualifications of Florida Administrative Code Rule 64B1-6.005(2)(a) or (b).
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
The Issue The issue is whether Petitioner has "just cause" to terminate Respondent's employment.
Findings Of Fact At all times material here, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Madison County, Florida. Respondent is an educator, certified by the Florida Department of Education. During the 2008-2009 and 2009-2010 school years, Petitioner employed Respondent as a teacher at the Madison Excel Alternative School (Excel). Excel is a non-traditional school. Students who attend Excel are behind academically or have other problems, requiring removal from the regular school setting. Instruction at Excel is self-paced and computer-based. Teachers at Excel may be responsible for assisting students in more than one subject during any one class period. Typically, computer coursework makes up 75 percent of a student's grade. The other 25 percent of a grade depends on the student's participation and/or other student work. Once a student completes a computer course, a report is generated to verify completion with a satisfactory grade of at least 70 percent. The student then must take an exam and pass it. If the computer program does not have an internal comprehensive exam, the teacher must generate an exam. There were at least three different computer programs used at Excel during the 2008-2009 school year. The A+LS system was the program used for computer-based instruction. Pinnacle has been used as the official, computer-based grade book and attendance record since the 2007-2008 school year. Additionally, the MIS system was used to maintain the cumulative permanent educational record for each student, including the classes taken and the grades in each subject. During the 2008-2009 school year, administrators (principal and/or secretary) were responsible for enrolling students in classes at Excel. This responsibility included enrolling students at the beginning of a term, consistent with students' academic programs and the Department of Education's student progress requirements. The school administrators also enrolled students in other courses when they completed course work prior to the end of a term. When an administrator enrolled a student in a particular course, the administrator would also permit the student access to the course material on the A+LS system and add the class to the computer-based grade book, Pinnacle. The Pinnacle system only allows so many classes per student per semester. When a student exceeds that number, school administrators have to notify Petitioner's district office to ensure that the student's grades are properly recorded. During most of the 2008-2009 school year, and prior thereto, Respondent kept a hand-written grade book. He used the grade book to record attendance as well as grades. Petitioner's policy required teachers to put weekly grades in Pinnacle for each student in each course. In the fall of 2008, Respondent did not follow the policy; he refused to enter a string of zeros when students, who were already behind, continuously failed to make progress. On or about February 17, 2009, the principal of Excel, Elizabeth Hodge, gave Respondent a written reprimand. The reprimand related to Respondent's failure to properly post grades in Pinnacle, the computerized grading system. Respondent ceased using his hand-written grade book at or about this time. During the 2008-2009 school year, Q. F. and S. B. were students at Excel in classes taught by Respondent. During the first semester of that year, Respondent taught each student at least three subjects. S. B. was in Respondent's first, third, and sixth-period classes. Q. F. was in Respondent's second, fourth, and fifth-period classes. Respondent was S. B.'s teacher for Integrated Math 1 during the third period of the first semester of the 2008-2009 school year. S. B. earned a semester grade of 93 in Integrated Math 1. With Respondent as her teacher, S. B. began, but did not complete, Economics at Excel during the second semester of the 2008-2009 school year. Respondent was Q. F.'s teacher for Algebra 1-A during the fourth period of the first semester of the 2008-2009 school year. Q. F. earned a semester grade of 73 in Algebra 1-A. With Respondent as her teacher, Q. F. began, but did not complete, Biology at Excel during the second semester of the 2008-2009 school year. During the 2009-2010 school year, Q. F. and S. B. enrolled in Petitioner's high school. At that time, they were no longer Respondent's students. Upon commencement of the 2009-2010 school term, the high school guidance staff placed S. B. into classes that Pinnacle showed were appropriate. S. B. objected to her placement, stating that she had taken some of the classes from Respondent while enrolled in Excel. In order to show that she had taken some of the classes, S. B. went to Respondent and requested that he provide the high school with a letter concerning the classes she took at Excel. The letter he wrote, dated November 17, 2009, stated as follows: This is to acknowledge that I was the instructor of record for [S. B.] in the school year 2007-08 [sic]. She completed the second semester of Biology and Economics. Our input system at Excel failed to grant these credits due to employee turnover and untimely submission of grades. At the time, we were in the process of changing principals and losing our data entry personnel. I can assure you that [S. B.] earned an 87 in Biology and 83 in Economics. We at Excel regret any unnecessary inconvenience that [S. B.] might have suffered. The guidance staff at the high school could not substantiate that S. B. had completed the classes referenced in the November 17, 2009, letter. S. B. then approached Respondent and requested documentation to confirm the matters set out in the November 17, 2009 letter. In response to the request, Respondent prepared a letter dated January 11, 2010, which states as follows: Conformation Record The 3rd & 4th periods consisted of six or seven different subjects. [S. B.] took Economics. (Economics, Pre-Algebra, Integrated Math 1 & 2, Algebra A and B, Consumer Math & Geometry). Respondent attached a copy of a page from his grade book to the January 11, 2010, letter. Respondent then gave the letter and the grade book page in a sealed envelope to S. B. to hand-deliver to the high school. The grade book page attached to the January 11, 2010, letter was for the fall semester of the 2008-2009 school term. It shows a list of third-period student names, including S. B., with grades next to them under a list of courses entitled "Econ, Pre-Algebra, Integrated Math." The term "Econ" is written in a different pen than the other subjects. There is no way from looking at the grade book page to know which student was taking which class. According to Respondent, S. B.'s grades on the page were for Economics. The greater weight of the evidence indicates that no grades for Economics were posted in Respondent's grade book or any computerized system for any students listed on the grade book page for the fall term of 2008. Instead, S. B. received credit that semester for Integrated Math. In the spring of 2009, the term during which Respondent was reprimanded and forced to cease using his grade book, S. B. attempted but did not complete course work for Economics. Respondent failed to record any grades in Pinnacle to show S. B.'s work in Economics. Upon commencement of the 2009-2010 school year, the guidance staff at the high school placed Q. F. in appropriate classes according to Pinnacle. Q. F. objected to her placement, stating that she had taken some of the classes from Respondent at Excel. Q. F. went to see Respondent. Q. F. requested Respondent to provide the high school with a letter concerning the classes she took while enrolled at Excel. In response to Q. F.'s request, Respondent prepared a letter dated January 13, 2010, and delivered it to the high school. The letter advised the high school as follows in relevant part: This 2nd semester class shows (4th period) as an example that . . . [Q. F.] was taking Biology. [Q. F.] had an 85 average in Biology. The January 13, 2010, letter had a copy of the same page from the grade book attached to it that was attached to the January 11, 2010, letter concerning S. B. The grade book page shows a list of fourth-period student names, including Q. F., with grades next to them under a list of courses entitled "Alg 1A-B/Consumer Math/Biology/Geometry." There is no way from looking at the grade book page to know which student took which class. According to Respondent, Q. F.'s grades on the page were for Biology. Upon investigation, Respondent's staff determined that no grades for Biology were posted for any fourth-period students listed in the grade book page for the fall term of 2008. Instead, Q. F. received credit for "Alg 1A-B." Respondent confirmed Q. F.'s grade in Algebra 1 for the fall term of 2008. For the spring term of 2009, Q. F. completed a half credit in Biology. Respondent failed to have this attempt properly entered into the computerized grading system. Comparing a copy of the page from the grade book that was attached to the January 13, 2010, letter, with a copy of the page from the grade book that was attached to the January 11, 2010, letter, it is apparent that Respondent altered the former. The alteration concerns the group of subjects listed over the fourth-period students' names. The grade book page attached to the January 11, 2010, letter listed the following fourth-period subjects: Alg 1A- B/Consumer Math/Geometry. The grade book page attached to the January 13, 2010, letter listed the following subjects: Alg 1A- B/Consumer Math/ Biology/Geometry. Because the subject "Biology" appears in the copy of the grade book page attached to the January 13, 2010, letter, but not in the copy of the grade book page attached to the January 11, 2010, letter, it is clear that it was added after January 11, 2010. Additionally, the term "Biology" was not simply added by writing it above the student names in pen. Instead, Respondent admitted that he cut a strip from a back page in the grade book, re-wrote the group of courses, and then photocopied the grade book page so that it would appear as through the subject "Biology" was always listed. Respondent testified that he remembered that Q. F. had taken Biology, so he was simply trying to "correct" the grade book. Respondent attempted to intentionally deceive Petitioner into awarding credit for classes that had not been earned. He did this in the following ways: (a) stating in the November 17, 2009, letter that S. B. had completed Economics and Biology when this was not true; (b) attempting to substantiate the falsehood by sending the January 11, 2010, letter and attaching to it a copy of a page from his grade book that had been altered by adding the term "Econ" to the subject line, then falsely asserting that the page showed S. B.'s completion of Economics; and (c) sending the January 13, 2010, letter and attaching to it a copy of a page from his grade book that had been intentionally altered by adding the term "Biology" to the group of subjects above Q. F.'s name, then falsely asserting that the page showed Q. F.'s completion of Biology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th day of July, 2010. COPIES FURNISHED: Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 George T. Reeves, Esquire Davis, Schnitker, Reeves & Browning, P.A. Post Office Box 652 Madison, Florida 32341-0652 Lou S. Miller, Superintendent District School Board of Madison County 210 Northeast Duval Avenue Madison, Florida 32340 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner’s application for continuing education course approval should be granted by the Board of Chiropractic Medicine.
Findings Of Fact Respondent, Board of Chiropractic Medicine, is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013(6) and Chapter 460, Florida Statutes. The Board has the responsibility to approve continuing education courses sponsored by chiropractic colleges. Section 460.408, Florida Statutes. Continuing education providers established through medical osteopathic or chiropractic colleges send their initial courses to the Board for approval. Ordinarily, once the course is approved they become an approved provider and do not send subsequent continuing courses to the Board for approval. Petitioner is an approved continuing education course provider. On July 24, 2001, Petitioner submitted an application of an online course to the Board for approval. The submitted course, ChiroCredit.com, is a 13-hour course consisting of nine regular hours, two HIV/AIDS hours, and two risk management hours. With the application, Petitioner submitted a letter dated July 19, 2001, by Drs. Richard Saporito and Paul Powers, Petitioner’s representative. The letter requested the Board “to review the issue of acceptance of distance based online education credits for Chiropractors continuing education requirements in the State of Florida.” On August 22, 2001, Stephanie Baxley, Regulatory Specialist for the Board, sent a memorandum to Dr. Gene Jenkins, D.C., chair of the Continuing Education Committee, requesting continuing education review. Dr. Jenkins signed and marked the memorandum "approved" on August 29, 2001. On the same date, Dr. Jenkins also indicated approval of an online course offered by another provider, Logan College. Ms. Baxley wrote to Dr. Richard Saporito notifying him that ChiroCredit.com had been approved for continuing education credit. Vicki Grant is a programs operations administrator with the Department of Health. Her responsibilities include managing the licensing and discipline of four professions, including chiropractic medicine. Ms. Grant received a phone call from Dr. Jenkins who informed her that he had made a mistake by indicating approval of the online course offered by Petitioner. In response to his inquiry as to how to proceed, she advised him to notify the continuing education staff, tell them he had made a mistake, and ask that the matter be presented to the full board. She also spoke to Sharon Guilford regarding the matter. Ms. Guilford is Ms. Baxley's supervisor. Sharon Guilford is a program operations administrator with the Department of Health. One of her responsibilities is serving as the administrator for the continuing education section that consists of six professions, including chiropractic medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins' phone call. On September 11, 2001, Ms. Guilford wrote a note on a copy of the August 29, 2001 letter from Ms. Baxley to Dr. Saporito that stated as follows: "Per Dr. Jenkins-course should've never been approved. Send letter correcting the error of approval." On September 11, 2001, Ms. Baxley sent a letter to Dr. Saporito advising him that the approval letter of August 29, 2001, was sent in error and that the Board would take up the matter at their October 2001 meeting.1/ The Board did address the matter at their October 1, 2001 meeting which was held via teleconference. Dr. Saporito and Dr. Paul Powers spoke to the Board on behalf of Petitioner. During the last part of the Board's consideration of this matter, various board members expressed concern that the Board did not have enough information to vote for an approval of the course and discussed having an opportunity to receive more information. After much discussion, the Board unanimously voted to deny Petitioner's application for approval of the course for continuing education purposes. At the same meeting, the Board also denied an application of Logan College to provide continuing education via an online course. The Notice of Intent to Deny states the grounds for denial: As grounds for denial, the Board found that the course did not meet the requirements of Florida Administrative Code Rule 64B2- 13.004. Specifically, the rule does not contemplate the awarding of credit for virtual courses or those taken online by use of a computer. The Board opined that 'classroom hours' as used in the rule means in-person education and not time spent in front of a computer. The course offered by the applicant is an online offering. Additionally, the Board expressed concerns about the educational merit and security protocols used by online course providers, but welcomes more information regarding these topics. The Board has never approved an online, homestudy, or video-taped presentation for continuing education course credit. The courses presented to the Board by Petitioner and Logan College were the first online courses to be presented for Board approval. The Board interprets its applicable rule, which requires each licensee to obtain 40 classroom hours of continuing education, to require live and in-person classroom hours. Petitioner offered the testimony of two expert witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller has knowledge regarding theories of learning and education, but lacks knowledge about chiropractors, chiropractic education, or chiropractic continuing education and does not appear to be very familiar with Petitioner’s particular online course. Dr. Boyle is familiar with both chiropractic continuing education and Petitioner's course. He disagrees with the Board's interpretation that the term "classroom hours" must mean a lecture or live format. However, Dr. Boyle described the broadest definition of "classroom" to be "anywhere, anyplace, at any pace, anytime." He acknowledged that the Board could set up criteria for online courses that differ from the criteria for traditional classrooms. Respondent’s expert witness, Dr. David Brown, noted that most chiropractors practice in isolation and very few have staff privileges at hospitals. In his opinion, a legitimate policy reason for requiring chiropractors to obtain a certain amount of in-person continuing education is that they can “rub shoulders with their peers” and learn from one another. Dr. Brown noted that many states impose restrictions on the number of online hours that may be taken or on the type of licensees who are eligible to receive credit. Dr. Brown interpreted the word "classroom" within the context of the rule containing the requirement of 40 classroom hours of continuing education to mean ". . . to physically sit in a room, in a classroom type environment which could be an auditorium or some other environment, with your peers who are also taking the class in order to obtain course credit. I think that's a traditional type of view." Dr. Brown's interpretation of "classroom" within the context of the Board's rule is more persuasive than those of Petitioner's experts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered denying Petitioner’s application for continuing education course approval.2/ DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002.
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d), (g), and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(4)(c) and (5)(a), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the Administrative Complaint, Respondent was employed as a second-grade teacher at Boston Avenue Charter School (Boston Avenue) in the Volusia County School District. Respondent holds Florida Educator’s Certificate number 1170778, which covers the areas of elementary education, English for speakers of other languages, reading, and exceptional student education, and is valid through June 30, 2016. During the 2011-2012 school year, Nichole Gaw was the principal at Boston Avenue. Racheal Welch Luebbert was also a teacher employed at Boston Avenue, but at the time of this incident worked as an intervention teacher and did not have her own classroom. Students at Boston Avenue normally wore uniforms. During the spring of 2012, the school was participating in a fundraiser called Blue Jeans for Babies, in order to benefit the March of Dimes. Money for the fundraiser was raised by students paying for the privilege of wearing clothes other than their uniforms on Wednesdays. Students contributed 50 cents to participate. Teachers were given manila envelopes to hold the collected money, but those envelopes were not always used. At the end of the day, the money collected by each class was given to Ms. Gaw. On April 25, 2012, there was a staff meeting scheduled. Before the staff meeting, Ms. Gaw was standing in front of the door of her office near the school reception area. While Ms. Gaw was standing at her door, Ms. Luebbert walked up to her and handed her a clear sandwich bag containing the money that had been collected in the classroom where she was working and given to her by the classroom teacher. Ms. Luebbert asked Ms. Gaw what Ms. Gaw wanted her to do with the money, and Ms. Gaw told her to put it in Ms. Gaw’s box. Because Ms. Gaw’s door was already locked, Ms. Luebbert handed Ms. Gaw the baggie and Ms. Gaw placed it in the mail holder on the outside of Ms. Gaw’s door. Immediately past Ms. Gaw’s door is an area with faculty mailboxes, a copier, and restrooms. Prior to the scheduled staff meeting, several people, including Respondent, passed through the area. Respondent walked past Ms. Gaw and spoke with Ms. Gaw briefly before entering the area where the mailboxes, copier, and restrooms were located. While Respondent was still in that area, Ms. Gaw and other personnel present left the area to attend the staff meeting. After the others had left, Respondent came from the mailbox area, past Ms. Gaw’s door into the reception area. She was carrying a paper or folder of some sort. As Respondent passed through the hall, she looked down the hallway. She paused, turned around, and appeared to be looking around as if to see if anyone else was present. Respondent walked over to Ms. Gaw’s door, took something out of the mail holder on the door with her right hand, and placed the object on top of the paperwork in her left hand. She then slid the object from the top of the paperwork to her left hand, and with her left hand placed it in her pocket. The object taken from Ms. Gaw’s door appears to be the sandwich bag containing the Blue Jeans for Babies collection. After the staff meeting, Ms. Gaw went to her office door to retrieve the sandwich bag, only to find that it was not there. Boston Avenue had video surveillance cameras that provided surveillance video for the general area near Ms. Gaw’s door. While part of the door itself is visible in the video footage, the mail holder on the door is not visible. Ms. Gaw retrieved the video footage for the office area and viewed it with management for Boston Avenue. Based upon her observation of the video footage, Ms. Gaw believed that Respondent took the sandwich bag containing the money. In accordance with management instructions, she called the police to report the theft, and on April 26, 2012, Officer Myriam Godwin of the Deland Police Department came to the school. Ms. Gaw spoke with Officer Godwin, told her that a teacher had stolen some money, and advised her that there was video surveillance footage of the incident. Officer Godwin viewed the video, which in her view appeared to show the theft of the money in the sandwich bag. She then spoke to Ms. Barry. Ms. Barry was summoned from her classroom to speak to Officer Godwin. Officer Godwin introduced herself, read Ms. Barry her rights, and explained the reason for questioning Ms. Barry. Ms. Barry immediately denied the theft. However, she eventually admitted taking the money and said she had done so because of financial problems. Officer Godwin did not place Ms. Barry under arrest at the time of the interview because the crime at issue is a misdemeanor. Instead, she completed an arrest affidavit charging Ms. Barry with petit theft. Ms. Barry’s employment with Boston Avenue was terminated on April 30, 2012. The theft of the money was reported in the news media, including television, newspaper, and the internet. On April 12, 2013, in the case of State of Florida v. Nicole S. Torres, Case No. 2012 008933 MMAWS (Volusia County Court), Respondent pleaded nolo contendere to petit theft, and adjudication was withheld. She was required to pay restitution in the amount of $28.55, and to pay court costs. Ms. Barry claims that she did not take the money, and that she would never take anything that did not belong to her. She does not recall what she placed in her pocket that day, but insists it was not the baggie with money. Ms. Barry also claims that she only told Officer Godwin that she took the money because she felt she was being harassed and threatened by Officer Godwin, and was afraid she would lose her daughter. In her view, admitting to the theft and telling Officer Godwin “what she wanted to hear” was the easiest course of action. Officer Godwin denied pressuring Ms. Barry, and said she did not threaten her in any way. She did not threaten to take Ms. Barry’s child, and certainly would not do so over a $28 theft. She also denied saying that if Ms. Barry did not cooperate, she would do what she had to do. Officer Godwin’s testimony is credited. Even assuming that she made the statement Ms. Barry attributed to her, which the undersigned does not find, the statement is not particularly threatening. It is simply a statement indicating that the officer would investigate and follow up without Ms. Barry’s cooperation, something she would be required to do in any event. After multiple viewings of the video tape and review of the evidence received, it is found that Respondent took the baggie from the envelope slot on Ms. Gaw’s door. Given Respondent’s participation in the March of Dimes fundraiser, the only reasonable inference that can be drawn is that Respondent knew the money in the baggie was from the March of Dimes fundraiser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of the charges in Counts 1, 3, and 5 of the Administrative Complaint, and not guilty of the charges in Counts 2 and 4. It is further recommended that Respondent be reprimanded; that she pay an administrative fine of $1,000; that her teaching certificate be suspended for a period of two years, followed by a period of probation for five years; and that prior to returning to the classroom, she take a three-hour college level course in ethics. DONE AND ENTERED this 11th day of June, 2014, 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 11th day of June, 2014.
