The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Eric R. Hartman has been licensed by the State of Florida as a real estate salesperson, having been issued license number 0455304. Mr. Hartman was originally licensed on August 12, 1985. The last status of Mr. Hartman's license was involuntarily inactive. On or about June 26, 1995, Mr. Hartman forwarded his real estate salesperson license renewal notice to the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate). His license had expired on March 31, 1995. Mr. Hartman submitted the license renewal notice to the Division of Real Estate for the purpose of renewing his real estate salesperson license. On the license renewal notice, Mr. Hartman signed an affirmation that he had completed all of the requirements for renewal of his license. As a prerequisite for the renewal of his license, Mr. Hartman was required to successfully complete a minimum of 14 hours of real estate continuing education. At all times material hereto, Mr. Hartman knew of this requirement. Prior to submitting his signed license renewal notice, in order to comply with the required continuing education, Mr. Hartman had obtained a correspondence course for 14 hours of continuing education from the Bert Rodgers Schools of Real Estate, Incorporated (Bert Rodgers). The correspondence course included a course book and test booklet. At the end of each chapter in the course book was a progressive quiz, and the answers for the quiz were provided at the end of the course book. Mr. Hartman took the progressive quiz after completing each chapter and, for the total book, had only two incorrect answers. The test for the continuing education course was open book. After completing the test, Mr. Hartman forwarded the test booklet to Bert Rodgers for grading. Based upon his performance on the progressive quiz after each chapter, there was no reason for Mr. Hartman to believe that he had not passed the test and, therefore, successfully completed the course. Confident that he had passed the continuing education course, Mr. Hartman submitted his license renewal notice to the Division of Real Estate. At all times material hereto, Mr. Hartman knew that he was required to maintain and submit to the Division of Real Estate, upon request, a course report certificate for the continuing education. The certificate indicates that he had timely and successfully completed the continuing education course. At the time that Mr. Hartman submitted his signed license renewal notice, he had not received a course report certificate from Bert Rodgers. On July 10, 1995, relying upon Mr. Hartman's representation that he had successfully completed the requirements for renewal of his license, the Division of Real Estate renewed Mr. Hartman's license and issued him a real estate salesperson license. His license had an effective date of June 23, 1995, and an expiration date of March 31, 1997. Subsequently, Mr. Hartman received notification from Bert Rodgers that the course material, including the test booklet, had expired and was no longer valid. Simultaneously, Bert Rodgers provided Mr. Hartman with a new and valid course book and test booklet. He completed the new test booklet and forwarded it to Bert Rodgers for grading. At the time that Mr. Hartman signed his license renewal notice and forwarded it to the Division of Real Estate, he had no intent to deceive or mislead or to make a material misrepresentation for the purpose of inducing the Division of Real Estate to renew his license. On his own initiative, by letter dated August 28, 1995, Mr. Hartman notified the Division of Real Estate of the situation regarding the Bert Rodgers continuing education course. After having forwarded the new and valid test booklet to Bert Rodgers, Mr. Hartman, subsequently, received a course report certificate from Bert Rodgers. The certificate indicated, among other things, that Mr. Hartman had taken a 14-hour continuing education correspondence course, which was completed on August 25, 1995, and that he had received a grade of 93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order imposing a $1,000.00 administrative fine against Eric R. Hartman. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.
The Issue Whether Petitioner meets the requirements of Section 471.015(3), Florida Statutes (2007), for licensure as a professional engineer by endorsement.
Findings Of Fact Petitioner attended Old Dominion University, Norfolk, Virginia, from fall of 1983, to May 16, 1987. He graduated May 16, 1987, with a Bachelor of Science Degree in Engineering Technology, with a major in Mechanical Engineering Technology. There is no affirmative evidence that Old Dominion University's curriculum demonstrates a deficient level of competence necessary to practice engineering in the State of Florida in the capacity of a Professional Engineer to protect public health and safety. There is no affirmative evidence of conditions unique to the State of Florida that warrant a level of competence beyond that demonstrated by Petitioner's Degree in Engineering Technology. Petitioner passed the National Council of Examiners for Engineering and Surveying Examination Part I (NCEES) Fundamentals of Engineering examination on April 11, 1987. Petitioner passed the NCEES Principles and Practices examination on October 27, 1995. Petitioner received a professional engineering license to practice in the Commonwealth (State) of Virginia on January 30, 1996. Petitioner received a professional engineering license to practice in the State of Alabama on May 30, 2003. Petitioner received a professional engineering license to practice in the State of Texas in 2005. Petitioner received a professional engineering license to practice in the State of Wisconsin in 2005. Petitioner applied for a Florida professional engineering license by endorsement on July 12, 2007. Petitioner has over four years' active engineering experience, meeting the requirements set forth in Section 471.013(1)(a), Florida Statutes. There is no evidence that the Florida Board of Professional Engineers requested supplemental information beyond that required by the Respondent's Application for Licensure by Endorsement, but Petitioner had every opportunity to present evidence in the present de novo proceeding. The Notice of Denial issued by the Florida Board of Professional Engineers on January 14, 2008, reads, in pertinent part: The Applicant does not satisfy the Education requirements of Chapter [sic] 471.015 that incorporates by reference Chapter [sic] 471.013 Florida Statutes. Your application failed to meet requirements of Section 471.013 (1) (a) F.S. Under this provision of the law, you must evidence a degree from an EAC/ABET accredited engineering program. You hold a Bachelor of Science in Engineering Technology Degree from Old Dominion University, Norfolk, Virginia. The Applicant does not have a Board approved degree.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order denying Petitioner's application for licensure as a professional engineer by endorsement. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 28th day of July, 2008.
The Issue The issues for determination are: (1) whether Petitioner, Amr Sallam's, education meets the "substantially equivalent" criteria as set forth in Florida Administrative Code Rule 61G15-20.007; and, if so, (2) whether, by virtue of its reviews of Petitioner's education and the grounds listed in the two related previously issued notices of denial, Respondent, Board of Professional Engineers, is estopped from denying Petitioner's application.
Findings Of Fact Petitioner is an applicant to take the Fundamentals Examination. Unless an applicant is otherwise exempted, the Fundamentals Examination is the first of two examinations an applicant must pass to be licensed as a professional engineer in Florida. Prior to applying to take the Fundamentals Examination, on two previous occasions, Petitioner applied to take the Principles and Practice Examination, the second examination required for licensure as a professional engineer in Florida. Petitioner's Educational Credentials and Teaching Experience Petitioner received a bachelor's degree in engineering from Alexandria University in Egypt in 1994. Petitioner received a master's degree in engineering from Alexandria University in Egypt in 1998. Petitioner received a doctorate degree in engineering from the University of South Florida (USF) in Tampa, Florida, in 2004. After completing his undergraduate degree, Petitioner began teaching at Alexandria University. Petitioner taught there for seven years, including the time he was in the master's degree program. In 2002, prior to receiving his doctorate degree, Petitioner taught geotechnical engineering at USF, which has an engineering program that is accredited by the Accreditation Board for Engineering and Technology, Inc. (ABET). In the summer of 2006, after receiving his doctorate degree, Petitioner taught a geotechnical design course at the University of Central Florida (UCF). The engineering program at UCF is accredited by ABET. At the time of this proceeding, Petitioner was employed by an engineering company. However, until Petitioner is licensed as a professional engineer, he cannot get a promotion within that company. "Substantial Equivalency" Requirement for Applicants with Degrees from Foreign Institutions Florida Administrative Code Rule 61G15-20.0071/ requires that applicants for licensure as professional engineers, who have foreign degrees, document that the engineering program they completed is substantially equivalent to an ABET accredited engineering program. Pursuant to Rule 61G15-20.007(4), Petitioner obtained an evaluation of his education in Egypt through an evaluation service, Joseph Silny and Associates (Silny). The evaluation conducted by Silny was a course-by- course evaluation of Petitioner's academic credentials at Alexandria University, in relation to the United States courses and semester credit hours. However, the Silny evaluation was limited to courses that Petitioner took in order to earn his bachelor of science degree in civil engineering. The Silny evaluation did not have Petitioner's transcript from USF, and, thus, none of those courses was considered or included in that evaluation. Based upon a review of Petitioner's academic credentials from Alexandria University from 1989 to 1994, the Silny evaluation concluded that Petitioner's bachelor's degree in civil engineering was not substantially equivalent to such degrees earned at a regionally accredited institution of higher learning in the United States. Specifically, the Silny evaluation determined that Petitioner had 27.5 of the required 32 semester credit hours in the Mathematics and Basic Sciences area and 1.5 credits of the required 16 semester credit hours in the Humanities and Social Sciences area. To satisfy the requirements in Mathematics and Basic Sciences, the Silny evaluation indicated that Petitioner needed 4.5 semester credit hours, "including a course in probability and statistics and an additional course in either general chemistry or calculus-based physics." The Silny evaluation awarded Petitioner 1.5 semester credit hours in Humanities and Social Sciences based on an English course he completed during his undergraduate studies. To satisfy the requirement in this area, the Silny evaluation found that Petitioner needed an additional 14.5 semester credit hours. The Silny evaluation indicates that Petitioner took 5.5 semester credit hours in physics and lists the course as a one-class and not a two-class sequence. Although the Silny evaluation listed the physics course as one course, the credible testimony of Petitioner was that he took two classes, one after the other, to receive the 5.5 semester credit hours. Moreover, the credible testimony of both Petitioner and the Board's executive director was that they have never seen and are unaware of any physics course that offers 5.5 semester credit hours. Given this undisputed testimony, the weight of the evidence established that the 5.5 semester credit hours for physics were not for one physics course, but for a two-class sequence. Despite the deficiencies noted in the Silny evaluation, Petitioner was not concerned. First, with respect to the deficiencies cited in Mathematics and Basic Sciences, Petitioner knew that the Silny evaluation did not include a review of his transcript from USF, which showed six additional hours of higher mathematics. Second, when Petitioner applied to take the Principles and Practice Examination and his application was being considered, the Board's Rule 61G15-20.007(5) waived the Humanities and Social Sciences requirement for applicants, such as Petitioner, who had a post baccalaureate degree in engineering from a university in the United States that had an accredited undergraduate engineering degree program. The Silny evaluation report dated March 31, 2005, was advisory. Pursuant to Rule 61G15-20.007(3), the Board's Education Advisory Committee (EAC) makes the final decision regarding equivalency of programs and recommends to the Board whether an applicant should be approved for admittance to the examination. Petitioner's Initial Application Filed on April 2005 On April 14, 2005, Petitioner submitted his initial application to the Board. This application was to take the Principles and Practice Examination. At the time Petitioner submitted his initial application, he had not taken the Fundamentals Examination. The Silny evaluation was forwarded to and considered by the Board in its determination of whether Petitioner's bachelor's degree from Alexandria University was substantially equivalent to a degree from an ABET accredited engineering program at a regionally accredited institution of higher learning in the United States. Prior to the Board taking final action on Petitioner's initial application, Petitioner's educational credentials were reviewed by the Board's EAC. The EAC is responsible for reviewing and evaluating the educational credentials of applicants holding foreign degrees. Typically, members of the EAC are engineering educators who have special expertise in discerning and comparing education courses. Dr. Anderson was the evaluator for the EAC that considered Petitioner's educational credentials in connection with his April 2005 application. Dr. Anderson has a doctorate degree in engineering and has been in education for many years and testifies as an expert for the Board. Like the Silny evaluation, Dr. Anderson determined that in the Mathematics and Basic Sciences area, Petitioner had 27.5 semester credit hours from courses taken at Alexandria University. However, in addition to those 27.5 semester credit hours in Mathematics and Basic Sciences, Dr. Anderson also determined that Petitioner had an additional six semester credit hours for two, three-semester credit hours of mathematics courses he took at USF, as part of his doctorate degree program. These mathematics classes, Numerical Methods III and Vector Analysis III, were higher level courses. The EAC's July 2005 evaluation determined that Petitioner should receive credit for the higher level mathematics courses taken at USF. Dr. Anderson's evaluation determined that Petitioner had a total number of 33.5 semester credit hours in Mathematics and Basic Sciences (27.5 from Alexandria University and six from USF), 1.5 credits more than the required number. However, Dr. Anderson noted on the educational credential review form that to satisfy the Mathematics and Basic Sciences course requirement, Petitioner still needed to take a course in "Prob [Probability] and Stat [Statistics]." Initially, Dr. Anderson wrote on the educational credentials review form that to meet the Mathematics and Basic Sciences requirements, Petitioner "needs 4.5 hours of Math and Bas Sci [Basic Science], which must include a Prob [Probability] & Stat [Statistics] course and a second course in chem [Chemistry] and phy [Physics]." However, Dr. Anderson crossed out that entire statement and wrote that Petitioner "[n]eeds to take a course in Prob [Probability] & Stat [Statistics]." The EAC educational credentials review form listed the following courses in Humanities and Social Sciences for which Petitioner could be given credit: English, 1.5 credits; American Civilization, three credits; Introduction to Music, three credits; and The Family, three credits. Although Petitioner did not have the 16 semester credit hours required in Humanities and Social Sciences to document "substantial equivalency," the EAC determined that this was not an impediment to Petitioner's satisfying this requirement. On the educational credentials review form, in the Humanities and Social Sciences section, Dr. Anderson wrote, "Ph.D. 2004." This notation reflected the Board's Rule 61G15- 20.007(5), in effect when Petitioner submitted his application, which waived the Humanities and Social Science requirements for applicants who had a doctorate degree in engineering from an institution with an ABET accredited undergraduate engineering degree program. On July 13, 2005, Dr. Anderson and Gerry Miller, Ph.D., P.E., a Board member, signed a form on which they recommended that the Board deny Petitioner's application because he needed a course in probability and statistics. The Board accepted the EAC's determination regarding Petitioner's educational deficiencies and recommendation that Petitioner's April 2005 application be denied. By letter dated July 15, 2005, the Board denied Petitioner's application to take the Principles and Practice Examination. Petitioner received the letter by certified mail on August 1, 2005. The letter cited three reasons for the denial: (1) Petitioner's educational deficiencies; (2) his lack of engineering experience; and (3) his failure to take the Fundamentals Examination. With regard to educational deficiencies, the Board's letter stated only that Petitioner was deficient in Mathematics and Basic Sciences. The letter stated the basis of this determination and indicated how this deficiency could be satisfied, as follows: Based on the evaluation from JSA&A [Silny] and review for compliance with 61G15-20.007, Florida Administrative Code, it was determined that you [Petitioner] were deficient in the following areas: 1.0 semester credit hours in Mathematics & Basic Sciences-A course in Probability & Statistics is needed. Except for the deficiencies in Mathematics and Basic Sciences, the Board's July 15, 2005, letter indicated that Petitioner had satisfied the requirements in Rule 61G15-20.007. The letter expressly stated that Petitioner had "satisfied" the 16-semester credit hour requirement in Humanities and Social Sciences. According to the letter, the second reason Petitioner's application was denied was that he had not taken the Fundamentals Examination. The Board noted that Petitioner had applied for consideration of "waiving the Fundamentals Examination under Section 471.013(3)(d)[sic],"2/ but was ineligible for such waiver. In explaining the reason Petitioner was not entitled to a waiver, the letter stated the following: Section 471.013(3)(d),[sic][3/] F.S. addresses Licensure in Florida by examination requires Ph.D. waiver applicants to have an ABET accredited Ph.D., along with having taught full time for a minimum of three years, in order to qualify for the Fundamental Waiver. The teaching requirement has not been met, therefore, your waiver was denied. The denial letter explained that eligibility for waiver of the Fundamentals Examination required applicants to have a doctorate degree and three years of full-time teaching experience. However, the letter failed to state that waiver provisions required that the full-time teaching experience be after Petitioner received his doctorate degree. Third, and finally, the letter indicated that Petitioner's application was considered under Subsection 471.013(1)(a)1., Florida Statutes (2006), which requires four years of engineering experience. The letter stated, Your application was considered under the provision of Section 471.013(1)(a)1[.], Florida Statutes (F.S.). Under that provision, you receive credit of four (4) years for your degree, and you must verify four (4) years of engineering experience. The Board has determined that you do not evidence four years of experience at this time. Petitioner received the denial letter and assumed that the information contained therein was correct. In a Petition dated August 18, 2005, Petitioner responded to the Board's denial letter. In regard to his teaching experience, Petitioner indicated he had taught geotechnical engineering at USF for one year. He also indicated that prior to that, he taught Geotechnical Engineering I and II, college-level courses in Egypt for five years (from 1996 through 2001). Petitioner did not state whether these teaching positions were full-time or part-time, but the teaching experience in Egypt and at the USF was before he received his doctorate degree. In the Petition dated August 18, 2005, Petitioner also noted that based on his calculations, he had more than the four years of engineering experience required in Subsection 471.013(1)(a)1., Florida Statutes (2006). Rule 61G15-20.002 sets out the criteria for determining engineering experience. The mere assertions in the Petition did not establish that Petitioner had the prescribed engineering experience. Petitioner did not dispute that he needed a statistics course. Instead, in reliance on the Board's July 15, 2006, letter regarding his educational deficiencies, Petitioner enrolled in a three-semester credit hour statistics course at USF in August 2005. After Petitioner completed the statistics course in December 2005, a copy of the Petitioner's transcript reflecting such completion was sent to the Board. The Board's executive director testified that it was reasonable for Petitioner to rely on the July 15, 2005, denial letter. Had the July 15, 2005, denial letter indicated that Petitioner was missing any additional courses, he would have taken all such courses during the fall of 2005, the same semester he took the statistics class. Petitioner's Second Application Filed January 2006 In or about January 2006, after completing a three- semester credit hour statistics course, Petitioner submitted an application to the Board to take the Principles and Practice Examination. As of January 2006, Petitioner had never applied for or taken the Fundamentals Examination, although he did not meet the eligibility requirements to waive that examination. Specifically, he did not have at least three years of full-time teaching experience at the baccalaureate level or higher after receiving his doctorate degree. See § 471.013(1)(d), Fla. Stat. (2006). By letter dated March 29, 2006, the Board denied Petitioner's second application to take the Principles and Practice Examination. According to the Board's March 29, 2006, letter, Petitioner's application was considered under Subsection 471.013(1)(a) and (c), Florida Statutes (2006), but was denied because Petitioner lacked the requisite engineering experience and had not passed the Fundamentals Examination. The letter states in relevant part the following: Your application was considered for eligibility under Section 471.013(1)(a)[and](c), and [sic] Florida Statutes. Under these provisions, you receive credit of four (4) years for your degree. You must demonstrate 4 years of engineering experience and a passing score on the Fundamentals of Engineering exam. Your application was denied for failure to evidence having passed the NCEES 8 hour Fundamentals examination. Additionally, pursuant to Section [Rule] 61G15-20.002(11), F.A.C. you must evidence experience at the time of application. The Board has determined that you have not demonstrated four years of professional experience at the time of application. The Board's March 29, 2006, letter did not indicate that Petitioner had any educational deficiencies in the areas listed in Rule 61G15-20.007(2). After reading the March 29, 2006, letter, Petitioner was assured that his education had been approved, since no deficiencies were mentioned in the letter. Moreover, Petitioner had successfully completed the statistics course, which the denial letter dated July 15, 2005, indicated he needed to take to satisfy the Mathematics and Basic Sciences requirements.4/ Petitioner's Third Application Filed in April 2006 Relying on information in the March 29, 2006, letter, on or about April 19, 2006, Petitioner submitted an application to take the Fundamentals Examination. On or about May 17, 2006, the Board's EAC evaluated Petitioner's educational credentials and recorded information pertinent to its evaluation on an educational credential review form.5/ This evaluation was performed by Board members, Chris Bauer, Ph.D., P.E., and David Bloomquist, Ph.D., P.E. According to the form, the EAC used the Silny evaluation and transcripts from USF and the University of North Carolina for its course-by- course evaluation. Based upon its course-by-course evaluation, the EAC concluded that Petitioner's application should be denied because its review indicated the educational criterion is not substantially comparable to EAC/ABET and Rule 61G15-20.007. In the comment section of the May 17, 2006, educational credentials review form, the EAC noted that Petitioner needed 1.5 semester credit hours in Mathematics and Basic Sciences and 2.5 semester credit hours in Humanities and Social Sciences. The EAC specified that in Mathematics and Basic Sciences, Petitioner needed 1.5 hours in chemistry or physics "for sequence." No specific courses were listed as needed to satisfy the Humanities and Social Sciences requirements. The Board adopted the EAC's findings made on May 17, 2006, regarding Petitioner's educational deficiencies and also followed the EAC's recommendation that Petitioner's April 2006 application be denied. By letter dated May 18, 2006, the Board denied Petitioner's application to take the Fundamentals Examination based on a determination that Petitioner had educational deficiencies in Mathematics and Basic Sciences and in Humanities and Social Sciences. The letter stated that because Petitioner has a bachelor's degree from Egypt, the Board reviewed the Silny evaluation to determine substantial equivalency to EAC/ABET and compliance with Rule 61G15-20.007. With regard to the educational deficiencies, the Board's May 18, 2006, letter stated, in relevant part, the following: [Rule] 61G15-20.007, F.A.C., states that to document substantial equivalency to an ABET accredited engineering degree, the candidate must demonstrate: 32 semester credit hours in Mathematics and Basic Sciences - Deficient * * * 16 semester credit hours in Humanities and Social Sciences - Deficient * * * The areas of deficiencies noted above are identified as follows: 1. [Rule] 61G15-20.007, F.A.C. requires 32 semester credit hours of Mathematics & Basic Sciences. In reviewing the evaluation from Josep Silny & Associates [Silny]; [sic] the Board determined that you have evidenced 30.5 semester credit hours in Mathematic [sic] and Basic Sciences. You are deficient in 1.5 semester credit hours in Mathematics and Basic Sciences including a secondary course in Chemistry and/or Calculus based Physics. [5/] 2. Rule 61G15-20.007 requires 16 semester credit hours in Humanities and Social Sciences. You have evidenced 13.5 semester hours. In reviewing the evaluation from Josep Silny & Associates, the Board determined that you are deficient 2.5 semester credit hours in Humanities and Social Sciences. . . . The 13.5 semester credit hours in Humanities and Social Sciences was based on a 1.5-semester credit hour English class Petitioner took at Alexandria University and four, three- semester credit hour classes that were listed on a University of North Carolina transcript. The Board's May 18, 2006, letter denied Petitioner's application because it concluded that he was deficient by 1.5 semester credit hours in Mathematics and Basic Sciences, including a secondary course in chemistry and/or calculus-based physics and by 2.5 semester credit hours in Humanities and Social Sciences. The Board's determination, relative to Petitioner's educational deficiencies, in the May 18, 2006, letter is contrary and inconsistent with the Board's two prior decisions. In the first denial letter dated July 15, 2005, the Board ratified the EAC's July 13, 2005, educational credential review and decision, which determined that Petitioner needed one semester credit hour in Mathematics and Basic Sciences, including a probability and statistics course.7/ Prior to May 1, 2005, and when Petitioner initially applied to take the Principles and Practice Examination, Rule 61G15-20.007(5) waived the Humanities and Social Sciences requirements for applicants with post-baccalaureate degrees. The Board's March 29, 2006, letter did not indicate that Petitioner had any educational deficiencies, even though the waiver provision for Humanities and Social Sciences requirements was no longer in effect. According to the second denial letter, Petitioner's application was denied because he lacked the required engineering experience and had not passed the Fundamentals Examination. The deficiency in Mathematics and Basic Sciences noted in the Board's third denial letter dated May 18, 2006, was based on the Silny evaluation that indicated Petitioner was 4.5 semester credit hours short in Mathematics and Basic Sciences. After reducing the 4.5-semester credit hour deficiency by the three semester credit hours Petitioner earned in the statistics course, the Board concluded that Petitioner needed 1.5 semester credit hours in Mathematics and Basic Sciences. This calculation was erroneous in that Petitioner was not granted credit for two higher level mathematic courses he took at the USF as part of his doctorate program. These two courses, Numerical Methods III and Vector Analysis III, were each three semester credit hours. Therefore, Petitioner should have been given credit for an additional six semester credit hours. By appropriately giving Petitioner credit for 27.5 semester credit hours for courses completed at Alexandria University and three semester credit hours each for Numerical Methods III, Vector Analysis III, and Statistics, he has a total of 36.5 semester credit hours in Mathematics and Basic Sciences, 4.5 semester credit hours more than the 32 hours required. Deficiency in Humanities and Social Sciences is Discovered After May 2006 Denial Letter During this proceeding, the Board's executive director revealed that "sometime this past summer" (the summer of 2006), he discovered that an error had been made regarding Petitioner's credits/deficiencies in Humanities and Social Sciences. This error came to light after it was discovered that the Board had erroneously given Petitioner credit for four courses listed on a University of North Carolina transcript, which had been mistakenly placed in Petitioner's file. The four, three semester-hour courses for which Petitioner was given credit were English, American Civilization, The Family, and Introduction to Music. There was no evidence or testimony to indicate that Petitioner was responsible in any way for this "transcript" error. In fact, none of Petitioner's various applications to the Board listed the University of North Carolina as a school Petitioner ever attended. Petitioner acknowledged that he never attended the University of North Carolina or took any of the courses listed on that transcript. As noted on the Silny evaluation, Petitioner has completed only one course in the Humanities and Social Sciences area, the 1.5-semester credit hour English class he completed at Alexandria University. The waiver of Humanities and Social Sciences requirement for applicants with doctoral degrees is no longer in effect. That wavier provision was deleted from Rule 61G15- 20.007 pursuant to an amendment, which became effective on May 1, 2005. As a result of the transcript error, Petitioner has a deficiency of 14.5 semester credit hours in the Humanities and Social Sciences area, and not the 2.5-semester credit hour deficiency noted in the Board's May 18, 2006, letter. Therefore, Petitioner needs an additional 14.5 semester credit hours in appropriate courses to satisfy the Humanities and Social Sciences requirement. As of the date of this proceeding, the Board had not notified Petitioner of the mistake in its May 18, 2006, letter, regarding his deficiencies in Humanities and Social Sciences. Action on Petition for Formal Hearing Petitioner filed a Petition for Formal Hearing with Respondent on June 13, 2006. The Board held a duly-noticed meeting on July 26 and 27, 2006. Respondent did not act on the Petition for Formal Hearing. Thereafter, on July 30, 2006, Petitioner filed a Petition for Writ of Mandamus with the First District Court of Appeal. The Board did not advance any legitimate explanation as to why Petitioner's Petition for Formal Hearing filed six weeks prior to the July 26 and 27, 2006, meeting was not placed on that agenda. The Board's agendas are usually set about one month before the meeting. By letter dated August 24, 2006, the Board notified Petitioner that his Petition for Formal Hearing would be considered by the Board of Professional Engineers on October 26, 2006. On September 13, 2006, the First District Court of Appeal granted Petitioner's Petition for Writ of Mandamus and directed the Board to rule on the Petition for Formal Hearing within 15 days of the date of the Order. On or about September 25, 2006, the Board forwarded Petitioner's Petition for Formal Hearing to the Division of Administrative Hearings. This was more than three months after the Petition was filed with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Professional Engineers, enter a final order which (1) finds that Petitioner has met the Mathematics and Basic Sciences requirement; (2) conditionally approves Petitioner's application to take the Fundamentals Examination in accordance with Florida Administrative Code Rule 61G15-21.007(5); and (3) allows Petitioner to take the Fundamentals Examination the next time it is administered. DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 19th day of March, 2007.
Findings Of Fact Respondent's name was one of about three hundred on a list of public accountants certified in Florida for whom, at the close of the initial period following institution of the requirement, petitioner had no record of the taking of continuing professional education courses or of the passing of a written professional examination. As a result, petitioner mailed respondent a form letter advising him of the situation, in February of 1977. Receiving no reply, petitioner mailed a second letter to respondent on April 28, 1977, stating that he "ha[d] failed to comply with F.S. 473.111(4) and Rule 21A-15" and that his suspension had been recommended to petitioner for that reason. On May 11, 1977, respondent visited petitioner's offices in Gainesville and spoke to George Thomas McCall, at the time petitioner's coordinator for continuing professional education. Mr. McCall gave respondent three reporting forms on which respondent proceeded, without reference to any notes, to list various titles in the column styled "Name of Course or Program," filling in corresponding blanks in columns for the dates of the courses, for their sponsors and for "Credit Hours Claimed." Petitioner's exhibit No. 1. Douglas H. Thompson, Jr., petitioner's executive director, asked Jean P. Finegold, Mr. McCall's successor, to attempt to verify that respondent had taken the continuing professional education courses he had listed. Ms. Finegold wrote respondent requesting documentation. Petitioner sent this letter by certified mail, but it was returned unclaimed. Ms. Finegold also wrote each of the four institutions listed by respondent as sponsors of continuing professional education courses that he had taken. The United States Department of Labor, listed by respondent as the sponsor of 48 hours of course work he had taken in the auditing and accounting category, never replied to Ms. Finegold's inquiry. Because respondent had indicated, on the reporting form for 1974, that he took courses named "Estate Planning" and "Banking" sponsored by the Florida Institute of Certified Public Accountants (FICPA), Ms. Finegold wrote FICPA asking, inter alia, for verification of respondent's attendance at those courses. Respondent listed no other courses sponsored by FICPA on any of the reporting forms. Under the supervision of FICPA's assistant Director, John Scharbaugh, Vicki Ware researched the FICPA's records without finding the course names "Banking" or "Estate Planning." Later, after an extended telephone conversation between respondent and Mr. Scharbaugh, the FICPA verified that respondent had attended "Income Taxation of Estates and Trusts" on January 10, 1974; Basic Concepts in Estate Planning" on January 11, 1974; "Workshop on Fiduciary Income Tax Returns" on December 14, 1973; "Seminar on Bank Audits, Accounting, Taxes and Regulations" (Seminar) on November 16, 1973; and another course on May 17 and 18, 1973. The three more recent courses "each qualify for eight hours of other CPE credit," composite exhibit No. 8, deposition of Jean P. Finegold, as did the seminar. The other course "Management Advisory Services Conference" is the course respondent referred to on his 1974 reporting form as "Computer Advisory," mistakenly indicating sponsorship by Florida State University rather than by the FICPA. In response to Ms. Finegold's inquiry, the American Institute of Certified Public Accountants (AICPA) indicated that the AICPA had offered no courses entitled "Capital Investments--Long Term Debt," "Tax Reform Act of 1975" or "Tax Course," and Rex B. Cruse, Jr., director of the Continuing Professional Education Division of the AICPA, executed an affidavit to that effect. Composite exhibit No. 7, deposition of Jean P. Finegold. Respondent had indicated on his 1974 and 1976 reporting forms that he had taken courses with such names, sponsored by the AICPA. A subsequent search of the AICPA's bad debt file revealed that respondent had ordered self-study materials for courses named "Capital Structure and Long-Term Objectives," "Ins and Outs of IRS Practice and Procedures" and "Tax Reduction Act of 1975," but respondent "did not officially complete the courses by returning examinations. . .for grading." Composite exhibit No. 6, deposition of Jean P. Finegold. Otha L. Brandon, a certified public accountant in Memphis, Tennessee, first engaged respondent's services in 1975. On four or five occasions thereafter, respondent was in Memphis for orientation and instruction in auditing certain types of accounts, including assignments from the Environmental Protection Agency (EPA). Toward the end of 1976, Mr. Brandon entered into a contract with the EPA to audit construction grants to certain municipalities, including eight Florida cities. He hired respondent to perform the Florida audits. On January 3, 1977, Mr. Brendon wrote respondent directing him to go ahead with the work. At the time, Mr. Brandon contemplated completing the job in mid-February, thinking he would send additional manpower to Florida to assist respondent. Unassisted, respondent made submissions to Mr. Brandon on the last of the eight cities in July or August of 1977. Mr. Brandon allocated approximately nine thousand dollars ($9,000.00) to the Florida portion of the project. Upon receipt of respondent's work, people in Mr. Brandon's office revised the reports to make them conform to EPA regulations and directives. This was taken into account when Mr. Brandon paid respondent in excess of seven thousand two hundred dollars ($7,200.00) for his services. Respondent has been a certified public accountant in Florida since 1972.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's certificate for three (3) years. DONE and ENTERED this 9th day of February, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1979. COPIES FURNISHED: James S. Quincey, Esquire 226 South Main Street Gainesville, Florida 32602 Thomas B. Calhoun, Esquire 3656 Shamrock Way Tallahassee, Florida 32308
The Issue Whether portions of Leon County School Board's "Pupil Progression Plan" constitute an invalid exercise of delegated legislative authority?
Findings Of Fact The parties stipulated that petitioner has standing to challenge respondent's "Pupil Progression Plan," Petitioner's Exhibit No. 1, because William R. Muldrow, Jr., failed physics, which will prevent or delay his graduation from Lincoln High School. He began the course in the fall of 1989, and earned "C"s for the first and second grading periods. Report cards with this information were sent home. At the end of the third or the beginning of the fourth week of the third six-week grading period, the physics teacher sent word home that he was in danger of failing. Respondent's policy requires that high school students and their parents receive report cards every six weeks and, if a student appears to be in danger of failing, academic warnings half way through any six-week grading period. Results of standardized tests are also reported to parents.. As feared, young Mr. Muldrow flunked the third six weeks, and he also failed the final semester examination. As a result he received an "F" for the semester. Applicable in these circumstances is respondent's Policy 4.15(3)(d) "Grading - High School, 9-12." An earlier version, voted on by the School Board on August 29, 1989, would have "remove[d] the requirement for earning one quality point during the final six weeks or exam for promotion, effective date August 1, 1990." Petitioner's late-filed exhibit. But this version was repealed before it took effect. The challenged rule now provides: The semester grade for each course is determined by totalling the points earned in both [sic] the three six-week grading periods with the points earned on the semester examination. The point values . . . are as follows: GRADE GRADING PERIOD SEMESTER EXAMINATION "A" 8 points 4 points 6 points 3 points 4 points 2 points 2 points 1 point 0 points 0 points The semester grade is assigned as follows: 5 through 10 points 0 through 4 points c. A student earning more than five (5) grade points during the first two six--week marking periods must earn at least one additional point in order to earn credit for the semester. Should a student earn no additional points, the teacher will place an F as the final grade average for the course for the semester. In its present form, the rule attaches particular importance to students' performance on the final exam and in the final grading period because, as respondent's Mr. Felton testified, "education is cumulative." Physics in particular, like mathematics and foreign languages, builds on what has gone before. The Leon County School Board established course performance standards for the physics course William R. Muldrow, Jr. failed (as well as for some 400 other courses.) Although the State Board of Education has adopted course performance standards for some twelfth grade courses, physics is not among them. Mastery of 65 percent of the physics course performance standards is a necessary, but not a sufficient, condition for passing. The physics teacher was free to add pertinent material and evaluate the students' performance, in accordance with grading policy filed at the beginning of the year with Carol Cowdry, who, as the principal's designee, was the local school board's representative. At respondent's request, the State Department of Education reviewed respondent's pupil progression plan for, among other things, conformity with state law, and found the plan fully consonant with pertinent statutory requirements. Petitioner produced no evidence to the contrary.
The Issue The issue in this case is whether the Petitioner's academic record meets the academic requirements that are prerequisites to taking the Fundamentals of Engineering examination.
Findings Of Fact The Petitioner submitted an application for approval to take the Fundamentals of Engineering examination. The Petitioner studied engineering at the Tongji University in the People's Republic of China from 1991 to 1995. He majored in Building Engineering and was awarded the degree of Bachelor of Engineering on July 10, 1995. Beginning in September of 1995, the Petitioner studied engineering at the graduate level at Tongji University. His graduate studies lasted until April of 1998, at which time he was awarded the degree of Master of Engineering with a major in Structural Engineering. During the course of his graduate studies at Tongji University from September of 1995 until April of 1998, the Petitioner completed a total of 38 semester credit hours. Those semester credit hours included the following courses with their indicated semester credit hours: Applied Statistics 2 credit hours Numerical Analysis 3 credit hours The courses titled Applied Statistics and Numerical Analysis are both higher mathematics courses. In the fall of 2000, the Petitioner began further graduate studies in engineering at Auburn University. He studied at Auburn University through the spring of 2002. The courses taken by the Petitioner at Auburn University included the following, with the indicated number of semester credit hours: Advanced Structural Analysis 3 credit hours Advanced Stress Analysis 3 credit hours Structural Dynamics I 3 credit hours Finite Element Methods in Structural Mechanics 3 credit hours The course titled Finite Element Methods in Structural Mechanics is a higher mathematics class. The other three Auburn courses listed immediately above, if not pure mathematics courses, are certainly courses which involve the application of advanced principles of mathematics. To successfully complete such courses, a person would have to be well-grounded in higher mathematics. In the fall of 2002, the Petitioner transferred to the University of Florida where he continued his graduate studies in engineering. On December 20, 2003, the University of Florida awarded the Petitioner the degree of Master of Engineering with a major in Civil Engineering. Pursuant to Florida Administrative Code Rule 61G15- 20.007 the Petitioner submitted his educational credentials to an educational evaluator approved by the Board. The evaluator selected by the Petitioner was Josef Silny & Associates, Inc. (Silny). Following its evaluation of the Petitioner's educational credentials, Silny prepared a Report of Evaluation of Educational Credentials (Silny Report) dated June 15, 2005. The Silny Report reached the conclusion that the Petitioner's undergraduate education at Tongji University was not the equivalent of a degree in engineering earned from a program approved by ABET. Silny was of the view that the Petitioner's undergraduate course of study at Tongji University was not equivalent because his curriculum was deficient five semester credit hours in higher mathematics and basic sciences and was deficient one semester credit hour in humanities and social sciences.1 The conclusions reached in the Silny Report were based on an evaluation of the Petitioner's undergraduate course work at Tongji University from 1991 to 1995. The Silny Report did not take into consideration any of the courses taken by the Petitioner during his graduate studies at Tongji University from 1995 to 1998, during his graduate studies at Auburn University from 2000 to 2002, or during his graduate studies at the University of Florida from 2002 to 2003. During his undergraduate engineering studies at Tongji University, the Petitioner completed 36 semester hour credits of course work in the areas of higher mathematics and basic sciences. Silny is of the opinion that semester credit hours completed at Tongji University represent less study than semester credit hours completed at an accredited engineering school in a university in the United States of America. Specifically, Silny is of the opinion that semester credit hours completed at Tongji University are the equivalent of only 75 percent of semester credit hours earned in accredited engineering programs in the United States of America. Accordingly, when Silny evaluated the Petitioner's undergraduate education credentials, Silny multiplied the 36 semester credit hours the Petitioner had completed at Tongji University in the areas of higher mathematics and basic sciences by a factor of 0.75, and concluded that those 36 semester credit hours were equivalent to only 27 semester credit hours at an accredited engineering program in the United States of America.2 Florida Administrative Code Rule 61G15-20.007 includes the following requirements regarding applicants with degrees from foreign institutions: Applicants having degrees from foreign institutions shall be required to document “substantial equivalency” to the 2002 ABET Accreditation Yearbook for Accreditation Cycle Ended September 30, 2002 engineering criteria. This document is hereby incorporated by reference. In order to document “substantial equivalency” to an ABET accredited engineering program, the applicant must demonstrate: 32 college credit hours of higher mathematics and basic sciences. The hours of mathematics must be beyond algebra and trigonometry and must emphasize mathematical concepts and principles rather than computation. Courses in probability and statistics, differential calculus, integral calculus, and differential equations are required. Additional courses may include linear algebra, numerical analysis, and advanced calculus. As for the hours in basic sciences, courses in general chemistry and calculus-based general physics are required, with at least a two semester (or equivalent) sequence of study in either area. Additional basic sciences courses may include life sciences (biology), earth sciences (geology), and advanced chemistry or physics. Computer skills and/or programming courses cannot be used to satisfy mathematics or basic science requirements. 16 college credit hours in humanities and social sciences. Examples of traditional courses in this area are philosophy, religion, history, literature, fine arts, sociology, psychology, political science, anthropology, economics, and no more than 6 credit hours of languages other than English or other than the applicant’s native language. Courses in technology and human affairs, history of technology, professional ethics and social responsibility are also acceptable. Courses such as accounting, industrial management, finance, personnel administration, engineering economics and military training are not acceptable. Courses which instill cultural values are acceptable, while routine exercises of personal craft are not. 48 college credit hours of engineering science and engineering design. Courses in this area have their roots in mathematics and basic sciences but carry knowledge further toward creative application. Examples of traditional engineering science courses are mechanics, thermodynamics, electrical and electronic circuits, materials science, transport phenomena, and computer science (other than computer programming skills). Courses in engineering design stress the establishment of objectives and criteria, synthesis, analysis, construction, testing, and evaluation. In order to promote breadth, at least one engineering course outside the major disciplinary area is required. In addition, evidence of attainment of appropriate laboratory experience, competency in English, and understanding of the ethical, social, economic and safety considerations of engineering practice must be presented. As for competency in English, transcripts of course work completed, course content syllabi, testimonials from employers, college level advanced placement tests, Test of English as a Foreign Language (TOEFL) scores of at least 550 in the paper- based version, or 213 in the computer-based version, will be accepted as satisfactory evidence.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued concluding that the Petitioner has met the requirements of Florida Administrative Code Rule 61G15-20.007, and is eligible to take the Fundamentals of Engineering examination. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 29th day of March, 2006.
