The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. If so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: Respondent held Florida teacher's certificate number 681506, covering the areas of Pre-K through Grade 3, which was valid until June 30, 1995. On or about November 4, 1986, Respondent was charged with battery by information filed in Dade County Court Case No. 86-79409. On December 29, 1986, following a non-jury trial, Respondent was found guilty as charged. Adjudication of guilt was withheld and Respondent was ordered to pay $77.00 in court costs. In 1990, Respondent submitted an Application for Florida Educator's Certificate to the Bureau of Teacher Certification of the Department of Education (Bureau). On the application, she checked "no" in response to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld? Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of certification. Please Check One: Yes No If yes, you must give complete details for each charge. As Respondent was aware, her negative response to this question was untrue inasmuch as, in 1986, she had been found guilty of the crime of battery in Dade County Court Case No. 86-79409. In 1992, Respondent submitted another Application for Florida Educator's Certificate to the Bureau. On the application, knowing that her response was false, she answered "no" in response to the following question: Yes No Have you ever been convicted, found guilty, or entered a plea of nolo contendre (no contest) to a crime other than a traffic violation? A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge In 1993, Respondent submitted a third Application for Florida Educator's Certificate to the Bureau. On the application, she knowingly gave false information by checking "no" in response to the following question: Yes No Have you ever been convicted, found guilty, entered a plea of nolo contendre (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to s.943.058, F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. On February 7, 1994, while working as a teacher at Golden Glades Elementary School, a public school located in Dade County, Respondent was involved in an altercation with a student, C.K., in the doorway to Respondent's classroom.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order: (1) finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint, as amended, concerning her falsification of the 1990, 1992, and 1993 certification applications she submitted to the Bureau; (2) barring Respondent from applying for certification for a period of three years for having committed these violations; and (3) dismissing the remaining counts of the Administrative Complaint, as amended. DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 29th day of July, 1997.
The Issue Whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2013),1/ and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), while in a classroom at Neptune Beach Elementary School on September 19, 2013, and, if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: The Florida Education Practices Commission (“the Commission”) is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. At all times relevant to the instant case, Ms. Kennedy held Florida Educator Certificate 889874, covering the areas of Elementary Education and English for Speakers of Other Languages. Ms. Kennedy’s certificate is valid through June 30, 2017. Ms. Kennedy began her teaching career in 2001 after graduating with a bachelor’s degree in Elementary Education from the University of North Florida. The school district assigned Ms. Kennedy to Neptune Beach Elementary on September 9, 2013, approximately two weeks into the 2013-2014 school year. The principal of Neptune Beach Elementary, Elizabeth Kavanagh, then assigned Ms. Kennedy to a third-grade class being taught by Ms. Amber Rodenkirch. It is unclear whether the two teachers were equals in the classroom or if Ms. Rodenkirch gave direction to Ms. Kennedy. The students in Ms. Rodenkirch and Ms. Kennedy’s class (“the class”) sat at tables rather than in chairs with a writing surface attached thereto. As illustrated by Petitioner’s Exhibit 13, the chairs utilized by the students were of two types. One type consisted of a plastic seat resting on metal tubes. The metal tubes had four flat ends making contact with the floor. The second type of chair also consisted of a plastic seat resting on metal tubes. However, the second type of chair made contact with the floor by having two metal tubes lying flat on the floor. As a result, it would be much easier to slide the second type of chair along a carpeted floor than the first. When seated in the second type of chair, the children in the class would often lean forward. By doing so, they would cause the back portion of the metal tubes on which the seat rested to rise up off the floor. When working with a student, Ms. Rodenkirch and Ms. Kennedy would be standing behind or next to a seated student. If that student was seated in the second type of chair and leaning forward, there was a tendency for the metal tubes on which the seat rested to come down on a teacher’s foot once the student leaned or sat back in his or her chair. Because it was painful for a chair to come down on her feet, Ms. Kennedy greatly preferred the first type of chair to the second. On September 19, 2013, Ms. Kennedy had recently been in a surfing accident which left one of her feet black and blue. In all likelihood, Ms. Kennedy was particularly concerned that day with the children leaning forward in their chairs. On September 19, 2013, Ms. Rodenkirch was working with a student and was 10 to 14 feet away from Ms. Kennedy. A student, C.J., was leaning forward in his chair, and Ms. Rodenkirch witnessed Ms. Kennedy tip C.J. out of his chair. After getting up from the floor, C.J. sat back down in his chair and appeared to be startled. Ms. Rodenkirch asked Ms. Kennedy if C.J. fell out of his chair, and Ms. Kennedy responded by stating, “With a little help.” Ms. Rodenkirch interpreted that statement as confirmation that Ms. Kennedy intentionally tipped C.J. out of his chair. At a different time on September 19, 2013, Ms. Rodenkirch was again about 10 to 14 feet from Ms. Kennedy when she witnessed Ms. Kennedy tip another student, N.B., out of his chair. As was the case with C.J., N.B. fell to the floor and was startled. Ms. Rodenkirch did not say anything to Ms. Kennedy after witnessing the incident with N.B. However, she was very upset about what she witnessed that day and reported what she saw to Ms. Kavanaugh after the children left school. After hearing Ms. Rodenkirch’s description of what happened in the class earlier that day, Ms. Kavanaugh called her supervisor, the regional superintendant, and requested direction. The regional superintendant, Kelly Coker-Daniels, instructed Ms. Kavanaugh to contact the Department of Children and Families and the local school district’s investigative branch. Both of the aforementioned entities conducted investigations. The local school district concluded that there was “substantial evidence to sustain the charges of exercise of poor judgment and inappropriate physical contact with students against Robin Kennedy for her role in these incidents.” (emphasis in original). Based on the investigation conducted by the Department of Children and Families, the Duval County Public School System: (a) issued a letter of reprimand to Ms. Kennedy; and (b) notified her that, pending approval by the school board, she would be suspended for 15 consecutive working days without pay. Because of the events described above, the parents of C.J. and N.B. requested that their children be transferred to another third-grade class. At least one other student transferred to a different class because she was worried that Ms. Kennedy would pull a chair out from under her. During the final hearing in this matter, Ms. Kennedy denied ever intentionally doing anything that could injure a student. During cross-examination, she responded affirmatively when asked if Ms. Rodenkirch was lying when she testified that she saw Ms. Kennedy tip C.J. and N.B. out of their chairs. However, the undersigned finds that Ms. Rodenkirch was a much more credible and persuasive witness than Ms. Kennedy. Therefore, the undersigned credits Ms. Rodenkirch’s testimony and finds that Ms. Kennedy did tip over the chairs of C.J. and N.B. on September 19, 2013, at Neptune Beach Elementary. Without a doubt, tipping students out of their chairs reduced Ms. Kennedy’s effectiveness as a teacher. That is underscored by the fact that students were transferred to other third-grade classes due to Ms. Kennedy’s actions. Ms. Kennedy’s conduct demonstrates that she failed to make reasonable efforts to protect her students from mental and/or physical harm. While it is very fortunate that none of the students in the class suffered any serious physical injuries, that might not have been the case if a student had hit his or her head on a hard object after being tipped out of his or her chair. Also, it is obvious that tipping a student out of his or her chair could expose that student to unnecessary embarrassment or disparagement. Accordingly, Petitioner has proven by clear and convincing evidence that Ms. Kennedy violated section 1012.795(1)(g) and (j) and rule 6A-10.081(3)(a) and (e).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order suspending Robin Welch-Kennedy’s educator’s certificate for 12 months. DONE AND ENTERED this 5th day of December, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 5th day of December, 2016.
The Issue The issue to be determined is whether Florida Administrative Code Rule 64B13-4.001 (the Rule), adopted by the Florida Board of Optometry (the Board), is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Nicole Yontz, O.D. (Dr. Yontz), is a graduate of the Inter-American University of Puerto Rico, School of Optometry. Dr. Yontz passed all parts of the NBEO exam in 2007, and has practiced as an optometrist in Nevada for approximately eight years. Petitioner Tammy Johnson, O.D. (Dr. Johnson), graduated from Indiana University and passed all parts of the NBEO exam in 1998. She practiced in Michigan from 1998 through 2003, and in Indiana from 2003 through 2016. The Board is the state agency charged with the regulation of the practice of optometry in the State of Florida pursuant to chapter 463, Florida Statutes. Intervenor, Florida Optometric Association (FOA), is a non-profit organization of approximately 3,300 members. Approximately 1,700 Florida-licensed optometrists are members of FOA, and the parties do not dispute that FOA has standing to participate in this proceeding. Petitioners each desire to practice optometry in the State of Florida. For purposes of this rule challenge, Petitioners are “substantially affected” by the challenged rule, as required by section 120.56(1)(a). Each of the Petitioners sought a waiver from the requirements of the Rule in order to proceed through the licensure process. The Board considered Dr. Johnson’s Petition for Waiver on February 26, 2016, and despite its counsel’s recommendation to approve the request for waiver, the Board denied the Petition. It issued a Notice of Petition for Waiver and Variance to that effect on March 14, 2016, stating that Dr. Johnson had failed to establish that the purpose of the Rule would be achieved by other means; that application of the Rule would cause a substantial hardship; or that requiring adherence to the Rule would violate the principles of fairness. The Board considered Dr. Yontz’s Petition for Waiver on August 19, 2016, and denied it as well. A Notice of Petition for Waiver and Variance was filed to that effect on September 16, 2016, citing the same reasons that were included in the Notice addressing Dr. Johnson’s Petition for Waiver, which are the statutory criteria for consideration of a waiver or variance pursuant to section 120.542. The position taken by the Board is consistent with its resolution of a number of other petitions for variance or waiver of the Rule considered by the Board. In order to be eligible to practice optometry in Florida, under the terms of the Rule as it now exists, both Petitioners would be required to retake the NBEO exam. The rule at issue in this proceeding is Florida Administrative Code Rule 64B13-4.001, quoted below, with the language that is the subject of the challenge underlined: The licensure examination authorized in Section 463.006(2), F.S., shall consist of the following parts: Part I – the Applied Basic Science (ABS) portion of the examination developed by the National Board of Examiners in Optometry (NBEO); Part II – the Patient Assessment and Management (PAM) portion of the examination developed by the NBEO which includes an embedded Treatment and Management of Ocular Disease (TMOD) examination. An applicant for licensure in Florida must obtain a passing score on the TMOD section of the examination; Part III – the Clinical Skills (CSE) portion of the examination developed by the NBEO. In addition to an overall passing score on the CSE portion, an applicant for licensure in Florida must obtain a score of 75 percent (75%) or better on each of the Biomicroscopy, Binocular Indirect Ophthalmoscopy, and Dilated Biomicroscopy and Non-Contact Fundus Lens Evaluation skills individually; and Part IV – a written examination on applicable Florida laws and rules governing the practice of optometry developed yearly by Florida Board of Optomety approved consultants in conjunction with NBEO, and administered by NBEO. The Board shall review and approve the content of the laws and rules examination annually. An applicant for licensure must achieve a passing score on all four parts of the licensure examination. For Part III, an applicant must receive an overall passing score on the CSE, as well as the required score of 75 percent (75%) or better on each of the three (3) individually identified skills, on the same test attempt. A score of 84 percent (84%) or better must be obtained in order to achieve a passing score on Part IV of the licensure examination. Passing scores for Part I, Part II, and Part III of the licensure examination are established by the NBEO. Given constant advances in research, developing knowledge in the area of basic and clinical science as applied to the diagnosis, correction, remedy, and relief of insufficiencies or abnormal conditions of the human eyes and their appendages, variances the scope of optometric practice among the states, and the importance of fundamental clinical skills to patient health and safety, passing scores on Part I, Part II, Part III and Part IV of the licensure examination must be obtained within the seven (7) year period immediately preceding licensure application. Certification Examination. A licensee applying for certification must obtain a passing score on either the TMOD examination embedded in the Patient Assessment and Management portion of the examination developed by the NBEO or a passing score on the stand alone TMOD examination developed by the NBEO. The Rule requires that an applicant for licensure must achieve passing scores on Parts I, II, III, and IV of the licensure examination within the seven-year period immediately preceding licensure application. The seven-year requirement is referred to as the “look-back period.” Petitioners are not challenging the authority of the Board to require passage of Part IV of the examination. The challenge is directed to the authority of the Board to require the look-back period. The Rule has contained a look-back period since at least 1979. It has been, at various times, eight years, seven years, and five years. The Licensure and Examination Process for Optometry in Florida There is no statutory provision in chapter 463 that authorizes licensure of optometrists who are licensed in other states to obtain a license in Florida by endorsement. In order for a person to practice optometry in Florida, he or she must apply for licensure under the process required by section 463.006. This provision expressly requires those who desire to become licensed in Florida “shall apply to the department to take the licensure and certification examinations.” (emphasis added). Applicants must be at least 18 years of age, graduate from an accredited school or college of optometry approved by rule of the Board, be of good moral character, have completed at least 110 hours of transcript-quality course work and clinical training in general and ocular pharmacology under certain delineated requirements, and have completed at least one year of supervised experience. With respect to the examination, section 463.006 provides that the Board may by rule substitute a national examination, and may by rule offer a practical examination in addition to the written examination. Section 463.006(3) provides that “[e]ach applicant who successfully passes the examination and otherwise meets the requirements of this chapter is entitled to be licensed as a practitioner.” State or National Examination Section 463.006 allows the Board to adopt a rule that provides for the substitution of a national examination as all or part of the examination. Section 456.017(1)(c)4., Florida Statutes, which is included in the provision that governs the Department of Health’s responsibilities with respect to examinations, specifies that it is the intent of the Legislature to reduce the costs associated with state examinations and to encourage the use of national examinations whenever possible. Consistent with this legislative directive, the Department of Health has certified a national examination, and no longer supports a state-developed practical examination for optometry. The Board has designated Parts I, II, and III of the National Board Examinations offered by the NBEO as three of the four parts of the Florida licensure examination. Part IV is an examination on Florida laws and rules and also is offered by NBEO, but is only taken by applicants for licensure in Florida. The Rule was amended, effective February 27, 2014, to establish this change in examinations. The NBEO was established in 1951 and is an independent, non-governmental, non-profit organization that administers the standard National Board Examinations, which are designed to test minimum competency of students. Since August 2011, students taking the clinical portion of the exam (Part III) take the examination in a controlled environment in North Carolina at NBEO’s testing location, as opposed to various locations across the country. Students may begin taking the examinations in their third or fourth year of optometry school. The NBEO national examinations are not really “geared” for individuals who are already practicing optometry. Parts I, II, and III of the National Board Examinations offered by the NBEO are a “national examination” as that term is used in section 456.017(1). Because of the way the NBEO Part III is administered in North Carolina, the Department has, in effect, delegated both the development and the administration of the examination to NBEO. Although the Board required passage of a Florida- specific practical examination prior to 2014, neither the Board nor the Department of Health currently offers a State of Florida specific practical examination. The Statutory Authority for the Rule The Rule cites as its rulemaking authority sections 456.017(1), 463.005, and 463.006(2). The Rule cites as its law implemented sections 456.017(1) and 463.006(2). Section 456.017(1) provides: (1)(a) The department shall provide, contract, or approve services for the development, preparation, administration, scoring, score reporting, and evaluation of all examinations, . . . . For each examination developed by the department or contracted vendor, to the extent not otherwise specified by statute, the board, or the department when there is no board, shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade. . . . If a practical examination is deemed to be necessary, the rules shall specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade. When a mandatory standardization exercise for a practical examination is required by law, the board, or the department when there is no board, may conduct such exercise. . . . The board, or the department when there is no board, shall approve by rule the use of one or more national examinations that the department has certified as meeting requirements of national examinations and generally accepted testing standards pursuant to department rules. Providers of examinations seeking certification shall pay the actual costs incurred by the department in making a determination regarding the certification. The name and number of a candidate may be provided to a national contractor for the limited purpose of preparing the grade tape and information to be returned to the board or department; or, to the extent otherwise specified by rule, the candidate may apply directly to the vendor of the national examination and supply test score information to the department. The department may delegate to the board the duty to provide and administer the examination. Any national examination approved by a board, or the department when there is no board, prior to October 1, 1997, is deemed certified under this paragraph. Neither the board nor the department may administer a state-developed written examination if a national examination has been certified by the department. The examination may be administered electronically if adequate security measures are used, as determined by rule of the department. The board, or the department when there is no board, may administer a state-developed practical or clinical examination, as required by the applicable practice act, if all costs of development, purchase, validation, administration, review, and defense are paid by the examination candidate prior to the administration of the examination. If a national practical or clinical examination is available and certified by the department pursuant to this section, the board, or the department when there is no board, may administer the national examination. It is the intent of the Legislature to reduce the costs associated with state examinations and to encourage the use of national examinations whenever possible. Each board, or the department when there is no board, shall adopt rules regarding the security and monitoring of examinations. The department shall implement those rules adopted by the respective boards. In order to maintain the security of examinations, the department may employ the procedures set forth in s. 456.065 to seek fines and injunctive relief against an examinee who violates the provisions of s. 456.018 or the rules adopted pursuant to this paragraph. . . . * * * (f) The department may adopt rules necessary to administer this subsection. (emphasis added). Section 463.005 provides in pertinent part: The Board of Optometry has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. Such rules shall include, but not be limited to, rules relating to: Standards of practice, including but not limited to, those provided for in s. 463.0135. Minimum equipment which a licensed practitioner shall at all times possess to engage in the practice of optometry. Minimum procedures which shall constitute a visual examination. Procedures for the safekeeping and transfer of prescription files or case records upon the discontinuation of practice. Supervision of supportive personnel. Courses and procedures for continuing education. Administration and prescription of ocular pharmaceutical agents. Section 463.006(2) provides: The examination shall consist of the appropriate subjects, including applicable state law and rules and general and ocular pharmacology with emphasis on the use and side effects of ocular pharmaceutical agents. The board may by rule substitute a national examination as part or all of the examination and may by rule offer a practical examination in addition to the written examination. There is nothing in any of these statutory provisions that expressly authorizes the Board to specify a time frame for taking the national examination prior to the time an application for licensure is filed. The Rule cites as a rationale for requiring the look- back period: constant advances in research; developing knowledge in the area of basic and clinical science as applied to the diagnosis, correction, remedy, and relief of insufficiencies or abnormal conditions of the human eyes and their appendages; variances in the scope of optometric practice among the states; and the importance of fundamental clinical skills to patient health and safety. In addition to the bases enunciated in the Rule, the purpose of the Rule is to ensure applicants are minimally competent to practice optometry with reasonable skill and safety. When the Board has been faced with petitions for variance and waiver seeking a waiver of the Rule’s look-back provision, Board members have consistently focused on their desire to protect the health, safety, and welfare of the public by ensuring that optometrists in Florida are well qualified and up to date in their skills. Since 2007, the Board has held multiple workshops and public hearings regarding the Rule, with the most recent occurring on May 13, 2016. The Rule is currently open for development, although the Board has not yet proposed any additional language. The Rule’s adoption history indicates that it has been amended multiple times over the years, most recently in 1999, 2002, 2004, 2010, 2011, 2012, 2014, and 2015. During the review of these amendments, the evidence presented did not indicate that the Joint Administrative Procedures Committee staff ever questioned the look-back language. While this information is evidence that can be considered in determining the validity of the look-back period, it is not dispositive. Two different attorneys serving as Board counsel have, by contrast, advised the Board that they did not believe that the Board has statutory authority for the look-back period contained in the Rule. Moreover, Terrance Nuberhaus, a former Board member now serving on the Board’s probable cause panel, could not identify any statute expressly providing authority for the Board to limit the acceptability of NBEO scores to any particular time frame. Equivalency Standards for the NBEO Exam NBEO exams have been revised over time. A copy of the NBEO equivalency statement is identified as Petitioners’ Exhibit 17, and Petitioners and Respondent agreed that this statement is considered an “adjunct to the deposition of Dr. Jack Terry.” The NBEO takes into account the revisions when determining whether a revised examination is equivalent to prior versions of the NBEO exams. The Board has recognized that the Part I and Part II National Board Examinations administered in 1991 are comparable to the Part I and Part II National Board Examinations administered today. The NBEO has developed equivalency statements which apply to any candidate who is attempting to complete the current three-part sequence of the NBEO exam, but who began the sequence under an earlier format. The purpose of equivalency is to keep the examinations equivalent, regardless of when the test was administered, and to reduce confusion and create a level of consistency, so that people can easily interpret and compare the results. The fact that NBEO has developed equivalency statements does not mean that the content of the examinations has remained static over time. Dr. Jack Terry, the Executive Director of NBEO, also testified that the skills evaluated in Part III of the test have changed over the years: Q. As to Part III, basically since 1993, am I correct that the main thing that has been added is a section dealing with injections? A. No. Since 1993, there have been many changes to the skills that have been added and some that have been taken away. I don’t have a full comprehensive list of those changes and when they occurred. For example, binocular ophthalmoscopy, I think, was added at some later point. Blood pressure measurements, I think, were added. A fundus contact lens evaluation was added. Punctal plugs and punctal plug insertion removal was added later on. Injections, as you indicated, was added later on. So there have been – and the purpose of the Part III Committee and Council is to look every year at the skills, currently there are 20 different skills, and to make sure that the Committee, the groups that give the National Board input are still comfortable with the 20 skills. Should it be increased. Should it be decreased. A few years ago, visual fields, confrontational visual fields were added. Just a small change. A few years ago saccadic eye movements were added to the exam. So there have been changes to the exam. It’s hard for me to say which one has been the biggest or the most or most profound. I think the changes have all been important. Q. But as far as the changes with additions or deletions, that has all been taken into account when the NBEO has determined its equivalency? * * * A. Yes, that’s all been taken into consideration in terms of the equivalence.
The Issue The issue in this case is whether Respondent, Steve E. Montgomery, committed the violations alleged in the Second Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Steve Montgomery has been employed with the School Board since May 13, 1988. He last held the position of a Plumber II Journeyman in Miami-Dade County Florida. Montgomery's job description and the maintenance employee's handbook mandated that he maintain a valid driver's license and Certificate of Competency in order to remain employed by the School Board. During the hearing, Montgomery admitted that he was aware that he had to maintain such minimum qualifications for his job. Montgomery started a pattern in 2003 of his driver's license getting suspended and then being reinstated again. Montgomery admitted during hearing that his driver's license had been suspended at least four times. Each time, the School Board notified Montgomery that his license was not valid and provided him five working days to get a valid license. Montgomery was placed in an alternative work assignment whenever he did not have the valid credentials. The School Board kept a record of the occurrences in Montgomery's personnel file. The file contained a December 15, 2003, memorandum entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION" directing Montgomery that his license was suspended and/or revoked and detailing that his job description requires that he maintain a valid State of Florida Class D license as one of the minimum qualifications of the position. The memorandum also stated that Montgomery had five days until December 22, 2003, to present evidence of a valid license. A May 24, 2004, memorandum almost identical to the one dated December 15, 2003, except for the deadline dates, was also in Montgomery's personnel file. The memorandum provided a deadline of June 1, 2004, to present evidence of a valid driver's license and indicated that, if there was a failure to satisfy the requirement in the allotted time period, a Conference-for-the Record ("CFR") would be scheduled to discuss the matter further. A July 26, 2005, memo identical to the two previous memorandums except for the dates was also in Montgomery's personnel file. The memorandum gave a deadline of August 2, 2005, to present evidence of a valid driver's license. Mr. Palacio personally gave the invalid driver's license memorandums to Respondent and verbally notified Montgomery of the requirement to get a valid license. Montgomery signed the memorandum dated September 15, 2005, entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION." As in the previous memos, it stated: Attached please find a report dated September 15, 2005 that indicates your driver's license has been suspended and/or revoked. Your official job description requires you to maintain a valid State of Florida CDL Class D* driver's license as one of the minimum qualifications of this position. (Effective July 1, 2005, Class D licenses were converted to Class E.) You are advised that this requirement is a condition of your continued employment with Miami-Dade County Public Schools. Without a valid driver's license you are no longer qualified to perform the requirements of your position with the District. Effective immediately, you are being placed on an alternate work assignment. Accordingly, you are directed to present evidence of this required license to your Satellite Director or designee within five (5) working days from the date of this memorandum, which will be September 23, 2005. Until such time, you are not authorized to operate any District vehicle or motorized equipment that requires possession of a driver's license. If you fail to satisfy this requirement within the allotted time period, a Conference-for-the-Record will be scheduled to address this matter further. Please review your Maintenance Operations handbook (Trades Chapter, Page 4) for further details. A CFR was held with Montgomery on September 30, 2005, because he did not obtain a valid driver's license by September 23, 2005. Montgomery was provided a copy of the job description for plumber II and the September 15, 2005, memorandum. At the CFR, Montgomery was again informed that maintaining his valid driver's license is a minimum qualification of his position and that "Without a valid driver's license, you are no longer qualified to perform the requirements of your position with the District." Montgomery signed the summary of the CFR on October 3, 2005. On October 13, 2005, the School Board notified Montgomery by memorandum that he had failed to maintain his Certificate of Competency and it had expired on August 31, 2005. Montgomery signed the memorandum and was instructed to present a valid certificate no later than October 17, 2005, at 8:00 a.m. Montgomery was aware that it was his responsibility to know when his qualifying documents expired and keep them valid as a minimum requirement for his job. A CFR was held on February 11, 2006, regarding Montgomery not possessing a renewed Certificate of Competency and a valid driver's license. At the CFR, Montgomery produced a renewed certificate but did still did not have a valid license. On May 4, 2006, Montgomery still did not have a valid driver's license and Mr. Palacio recommended Montgomery's termination. In Palacio's memorandum, the grounds for such discipline were as follows: Mr. Montgomery is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, members of the non-instructional staff shall maintain all certifications, licenses and job requirements as a condition of employment. Failure to do so shall warrant disciplinary action. On May 9, 2006, Mr. Brown and the maintenance officer signed a memo entitled Recommendation for Termination Mr. Steve E. Montgomery Employee # 169252 Plumber II, Region Maintenance Center II providing grounds for disciplinary measures inasmuch as Montgomery was unable to produce a valid Florida's driver's license, a condition of employment. The memo stated: As a Plumber II, Mr. Montgomery must maintain all certifications, licenses and job requirements. Failure to comply with minimum job requirements warrants dismissal. Montgomery let the Certificate of Competency expire again on August 31, 2007. Subsequently, on September 17, 2008, another CFR was held with Montgomery notifying him of the recommendation for suspension and termination because Montgomery's license and Certificate of Competency were not valid. During the CFR, Montgomery did not offer any explanation as to why his license was still suspended or submit proof of his Certificate of Competency but only commented he "will have [both] soon."4 Montgomery also did not complain about any working conditions during the CFR. At a regularly scheduled meeting on January 14, 2009, the School Board suspended Montgomery without pay and initiated dismissal proceedings against him from all employment with Miami-Dade County Public Schools for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4A-1.21 Responsibilities and Duties, 6Gx13-4A-1.213 Code of Ethics, and Sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida Statutes. Montgomery's license was suspended at the time of his suspension and termination. Likewise, Montgomery's Certificate of Competency had still not been renewed at the time of his suspension and termination. No other School Board employee had his/her license suspended as many times as Montgomery with an expired Certificate of Competency at the same time. Further, the School Board has disciplined employees by termination for having a suspended driver's license. Montgomery had a valid Florida driver's license and a renewed valid Certificate of Competency at the hearing. On August 20, 2009, the School Board filed its Second Amended Notice of Specific Charges charging Respondent with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Board Rule 6Gx13-4A-1.213, Code of Ethics, and State Board Rules 6B-1.001 and 6B-1.006 by failing to maintain a valid driver's license and Certificate of Competency.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order that: (a) dismisses Count I; (b) finds Respondent in violation of Count II as charged; and (c) upholds Respondent's suspension without pay and termination. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 26th day of February, 2010.
The Issue Whether Respondent violated Subsections 231.28(1)(c), (f), and (i), Florida Statutes (1999), and Rule 6B-1.006(3)(a), (b), (e), and (f), Rule 6B-1.006(4)(a) and (b), Rule 6B-1.006 (5)(a), (c), (d), (e), (f), (o), and Rule 6B-1.001(1), (2), and (3), Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact Mr. Jenkins holds a Florida Educator Certificate. At all times pertinent to this proceeding, he was employed as a physical education teacher at Pasedena Lakes Elementary School (Pasedena Lakes) in the Broward County School District, where he had been teaching for 15 years. Mr. Jenkins was a Master Steward for the teachers' union. He was also a member of the School Advisory Council (SAC) and was chair of the Safety and Discipline Committee, which is a part of SAC. Jill Wilson has been the principal at Pasedena Lakes for six years and has a total of 29 years of educational experience. The assistant principal at Pasedena Lakes is Charlene Hogan, who has been at Pasedena Lakes for five years and has a total of 28 years of experience in the field of education. On October 29, 1998, at approximately 5:00 p.m., Mr. Jenkins came to Ms. Wilson's office and yelled at her, accusing her of discrediting him and making things worse at the school. During this incident, Donna Blank, a former employee of Pasedena Lakes, was leaving the building and, through a window, observed Mr. Jenkins pounding on Ms. Wilson's desk and saying, "You're not my boss." Ms. Blank went to her car, but returned to the building because she felt that she could not leave Ms. Wilson alone in that situation. When Ms. Blank went to Ms. Wilson's office, Ms. Wilson was visibly shaken. Ms. Wilson felt intimidated by Mr. Jenkins and, as a result of the incident, issued a memorandum to Mr. Jenkins dated October 30, 1998. The memorandum outlined the events that had taken place in Ms. Wilson's office on October 29, 1998, advised Mr. Jenkins that his actions were inappropriate, and required him to schedule future meetings with her secretary so that she could have another staff member present when they met. Pasedena Lakes has about 900 elementary students. Parking was a problem at the school, as well as traffic congestion when parents dropped off students in the mornings. Parents would park in the teachers' parking spaces, and there would be disruptions in the flow of traffic when the parents would take time to dole out lunch money, dress the children, say farewells, and otherwise take up additional time as they were dropping off the students. Mr. Jenkins volunteered to help direct traffic in the mornings in order to reduce the congestion in the parking lots. His mode of directing traffic was more aggressive than the methods that had been used previously by the other teachers. Mr. Jenkins used a bull horn to shout at the parents to move the traffic along and to tell them to kiss their kids at home and not at school. At first his efforts were commendable, but he began to become frustrated with the job. Mr. Jenkins would yell at the parents and the students, upsetting both the parents and the students. On one occasion while on traffic duty, Mr. Jenkins, using his bullhorn, called another teacher "Deadwood," belittling her in front of students, parents, and other staff members. Sometime during the fall of 1999, Patricia Lewis was bringing her two children to the school. Ms. Lewis needed to talk to one of her children's teachers, so she dropped her children off and told them to wait for her while she parked the car. While she was parking the car, Mr. Jenkins yelled at her children, "You little monkeys, hurry up and get back to class." Ms. Lewis, a Haitian-American, was upset at his remarks and confronted him. She told Mr. Jenkins, "My kids have a name. You do not call them that." Mr. Jenkins replied, "If you don't like it, go get a lawyer, and my lawyer will win." Visibly upset, Ms. Lewis went to the school administration's office and asked to speak to the principal. She talked with Ms. Wilson and explained what had happened in the parking area. Ms. Wilson assured her that she would take care of the matter and talk to Mr. Jenkins. Ms. Lewis left the office and went to find her child's teacher to talk with her as originally planned. She ran into Mr. Jenkins in the hallway. Mr. Jenkins said, "Oh, you're the one who went to the principal." Ms. Lewis told him that she did not want to talk with him and turned away. Mr. Jenkins began to yell at her, and she went back to the office in tears. When she got to the principal's office, Ms. Lewis was loud and upset. Again Ms. Wilson calmed her down. In the fall of 1999, the Safety and Discipline Committee had concerns over the traffic problems at Pasedena Lakes and over unauthorized visitors on campus. A meeting of SAC was scheduled for November 9, 1999, to discuss these issues. The Safety and Discipline Committee met and drafted a letter which was to be sent to the parents asking them to come to the meeting and outlining the concerns which would be discussed. Ms. Hogan was on the Safety and Discipline Committee, and she edited the draft letter with input from other committee members so that the letter would fit on one sheet of paper. Mr. Jenkins was not happy with the edited version, but he did not tell Hogan of his displeasure at the time the letter was rewritten. Mr. Jenkins helped distribute the letter to the parents in the parking lot. Alice Lacy, a teacher at Pasedena Lakes, was the chair of SAC, and Hogan was co-chair. On November 1, 1999, Mr. Jenkins told Ms. Lacy that he wanted to have a meeting prior to the SAC meeting scheduled for November 9, 1999, in order to get the teachers to form a coalition and come to the November 9 meeting to support him. As chair of SAC, Lacy told Mr. Jenkins that it would be better to send a memorandum to the teachers rather than schedule a separate meeting. Later on the same day, Mr. Jenkins told Ms. Lacy that he was demanding that the teachers come to the November 9 SAC meeting. He became angry with Ms. Lacy and told her that it was a personal issue and that the teachers owed it to him. He stormed away from Ms. Lacy. Ms. Lacy became concerned about the November 9 SAC meeting and felt that Mr. Jenkins should clarify his intentions prior to the meeting. She sent Mr. Jenkins a memorandum, requesting that he provide her with an agenda by November 5. Mr. Jenkins did not supply an agenda. Ms. Lacy heard him yelling at teachers outside her classroom on November 5, but did not know what he was discussing with the teachers. Ms. Lacy became concerned and sent a memorandum dated November 5, 1999, to Ms. Wilson and Ms. Hogan, urging that the November 9 SAC meeting be postponed until the issues involving Mr. Jenkins could be resolved. The administration met with Mr. Jenkins, and Ms. Lacy was assured that Mr. Jenkins understood that the SAC meeting would be under Ms. Lacy's direction, the agenda would be followed, and the meeting would take place in the media center. When Ms. Lacy went to the media center on the evening of November 9, 1999, she found that the media center was locked and that Mr. Jenkins was setting up the meeting in the cafeteria, where he could have teachers sit on stage with him to lend him support. Lacy confronted Mr. Jenkins and told him that the meeting would take place in the media center as planned. Mr. Jenkins shook his finger at Ms. Lacy and told her that she was making a big mistake. When Ms. Lacy was calling the meeting to order, Mr. Jenkins called out of turn and said, "I motion to move this meeting to the cafeteria." Ms. Lacy called Mr. Jenkins out of order. There was a large turn-out for the SAC meeting, and it was agreed that each speaker would be limited to two minutes. When Mr. Jenkins began to make his presentation for the Safety and Discipline Committee, Ms. Lacy felt that he was unprepared and was improvising. Several times Mr. Jenkins spoke and went over his two-minute limit. When he did, Ms. Lacy would cut him off and go on to the next speaker. After this happened three times, Susie Ruder, a teacher at Pasedena Lakes, sent a note to Ms. Lacy, telling Ms. Lacy that she felt Ms. Lacy was being rude to Mr. Jenkins. After Ms. Lacy received the note, she gave Mr. Jenkins more time to speak. The day after the meeting, Mr. Jenkins ran into Ms. Hogan and Cathy Greenspan, a reading resource specialist at Pasedena Lakes, on the school campus. Mr. Jenkins shook Ms. Hogan's hand and commented that the SAC meeting had been a good meeting. Approximately ten minutes later, Mr. Jenkins went to Ms. Wilson's office. He was wearing shorts, a shirt, and a fanny pack. His purpose for the visit was to discuss sending flyers to parents advising them of the decision of SAC to require parents to obtain a visitor's pass to come on the school campus. Ms. Wilson told him that the passes had been ordered but had not arrived and that she did not want the flyers to be sent until the passes had arrived. Mr. Jenkins shifted the conversation and told Ms. Wilson that she was responsible for the rumor mill around school and accused her of changing a letter that had been written by the Safety and Discipline Committee in October to advise the parents of the November 9 SAC meeting. Mr. Jenkins said the letter that went home to the parents was not the letter the Safety and Discipline Committee had agreed upon. Ms. Wilson did not know about the changes to the letter and called Ms. Hogan to come into the office to discuss the letter. Ms. Hogan brought in the disc on which the letter had been saved, and they viewed it on the computer. Mr. Jenkins again shifted the conversation to the November 9 meeting and held Ms. Wilson responsible for the rudeness he felt Ms. Lacy displayed at the SAC meeting. Mr. Jenkins then shifted the discussion again and wanted the South Area Office to look into what Ms. Wilson's role was on SAC. Mr. Jenkins started to yell and point his finger in Ms. Wilson's face. His face got red, and his voice became louder. He told Ms. Wilson that she would be in charge of damage control. Ms. Hogan told him not to point his finger at Ms. Wilson. Mr. Jenkins turned to Ms. Hogan and said, "I've got an attorney, I've got the union, and I've got a gun." Both Ms. Wilson and Ms. Hogan asked Mr. Jenkins what he said. He replied that he did not know what he said and that he had been interrupted. Either Ms. Wilson or Ms. Hogan told him that he had said, "I've got a gun." Mr. Jenkins became flustered and walked out of the office. Both Ms. Wilson and Ms. Hogan were shocked by Mr. Jenkins' outburst. Neither woman could tell whether Mr. Jenkins actually had a gun in his fanny pack. A conference room was located next to Ms. Wilson's office. Cathy Greenspan, Donna Blank, and Barbara Perkins were in the conference room when Mr. Jenkins was meeting with Ms. Wilson and Ms. Hogan. Both Ms. Blank and Ms. Perkins heard Mr. Jenkins say the word, "gun." Ms. Greenspan heard Mr. Jenkins say, "I've got a gun." After Mr. Jenkins left the administration office, Ms. Hogan called the Special Investigative Unit (SIU), which is the school police, and requested assistance. Investigator Evelyn McCabe came to the school. Ms. Hogan was afraid of what Mr. Jenkins might do and locked herself in her office until Inspector McCabe arrived. Mr. Jenkins returned to the administration office with Sydna Satterfield, a teacher at Pasedena Lakes and a friend of Mr. Jenkins. Mr. Jenkins, Ms. Satterfield, Investigator McCabe, Ms. Wilson, and Ms. Hogan went into to Ms. Wilson's office. A few minutes later Susie Ruder, another teacher and friend of Mr. Jenkins, joined them. Mr. Jenkins denied saying that he had a gun and then stated that he did not know what he said. He threw his keys on Ms. Wilson's desk and asked to be transferred to an "F" school. He walked out of the office but returned and said that he wanted an investigation. Ms. Wilson told him to think about whether he wanted an investigation or wanted to work out things. She advised him that she was willing to work with him on their problems. Mr. Jenkins said he did not know what he said, but apologized for whatever he had said. Mr. Jenkins and Ms. Wilson hugged, and they agreed to try to work together. That evening and the next morning, Ms. Wilson received calls from staff members who feared for their safety and the safety of their children as a result of the incident with Mr. Jenkins. Ms. Wilson began to think about what had happened and the complaints from staff. She also saw an article in the newspaper concerning a colleague who had not contacted authorities concerning an incident that had happened at his school and had tried to resolve the situation by himself. She felt she had to get assistance. Ms. Wilson called Bruce Wagar, who is in charge of professional standards. He advised her to file a complaint with SIU, which resulted in an investigation. As part of the investigation, Mr. Jenkins underwent a psychological evaluation in April 2000 by Dr. Joel Kimmel. The evaluation report stated: Personality tests and behavioral observations indicate that Mr. Jenkins is a frustrated individual who believes he is being prevented from doing his job. His responses to the personality tests indicate that he tends to define his identity based upon his position and derives a lot of satisfaction from his job. He enjoys working with students and motivating them to achieve their potential. He likes the status and recognition he receives from his position and may have a lonely life outside his job. He also appears to be somewhat incompetent, or inefficient. When frustrated, he can escalate and demand his way. However, there are no signs of any violent behaviors in any of his responses suggesting that he probably will not act out when frustrated. He does believe in the benefit of talking things out. However, he does want to do things his way and may not respect others if they disagree with him. He also does appear to have some boundary issues in terms of not understanding where his authority ends and being able to accept the authority of others. His greatest fear is that of failure and losing his job which could represent a failure for him. His provisional diagnosis would be Adjustment Disorder with Mixed Emotional Features (DSM IV 309.28). It is highly recommended that Mr. Jenkins participate in sensitivity training and interpersonal relationship programs in order to develop his capacity to tolerate others' viewpoints as well as decrease his frustration. A stress reduction program would also be helpful in improving his ability to control his frustration and developing more patience. Meetings between he [sic], his principal, and a counselor may be of assistance in improving their relationship. Mr. Jenkins has demonstrated inappropriate behavior on different occasions involving his students. He showed his paycheck to a first grade class and asked them if that was not a lot of money. Another time, he read an article from a newspaper to a kindergarten swim safety class about a student who had drowned and told the class that they could drown. Mr. Jenkins left his physical education class outdoors unattended when their regular classroom teacher failed to pick them up on time. On November 17, 1999, Ms. Wilson inadvertently referred to Mr. Jenkins during a morning announcement as Thomas Wilson rather than Thomas Jenkins. Mr. Jenkins and his wife composed a letter to show how one word could be misconstrued. The letter, which Mr. Jenkins referred to as a private joke, stated that Mr. Jenkins thinks that Ms. Wilson fantasizes about him being her husband, that she wants his body, that Ms. Wilson was a "horny lady," and that she might lose control and have sex with him. Mr. Jenkins' wife shared the letter, which Mr. Jenkins called a "nothing" letter, with other employees of Pasedena Lakes. Both teachers and parents testified that they were fearful of Mr. Jenkins based on his past conduct and that he had created a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Thomas Jenkins violated Subsections 231.28(1)(c), (f), and (i), Florida Statutes (1999), and Rule 6B-1.001(1), (2), and (3), Rule 6B-1.006(3)(a), and (e), Rule 6B-1.006(4)(a), and Rules 6B-1.006(5)(d),(e) and (o), Florida Administrative Code; finding that Thomas Jenkins did not violate Rule 6B-1.006(3)(b) and (f), Rule 6B-1.006(4)(b), and Rule 6B- 1.006(5) (a), (c), and (f), Florida Administrative Code; suspending Thomas Jenkins' teaching certificate for 60 days followed by a probation period of three years; requiring that Thomas Jenkins take courses in professional responsibility, improving interpersonal communication skills, and sensitivity training; requiring Thomas Jenkins to have periodic psychological evaluations prior to and after returning to work; and requiring Thomas Jenkins to have a fitness-for-duty examination. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 30th day of March, 2001. COPIES FURNISHED: Randy A. Fleischer, Esquire 4801 University Drive, Suite 3070 Davie, Florida 33328 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Frank L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board). Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as: Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy. Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8) The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as: Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8) A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9". On rescoring, the NCEES score's comments in assigning a score of "6" were: SCORER'S COMMENTS: Requirement (a)-Failed to meet accuracy requirements of +/-0.015m. Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters. Requirement(c)-Same error as in Requirement (b). No points were deducted for this error. Requirement (d)-Solution is correct. Minimum competence was shown by this solution. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c). A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original). When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8". DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of November, 1999. COPIES FURNISHED: William H. Hollimon, Esquire Ausley & McMullen, P.A. 227 South Calhoun street Tallahassee, Florida 32302 Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Robert C. Channell is a registered pool contractor holding License No. RP0024653 issued by the Florida Construction Industry Licensing Board. A copy of the Circuit Court of the Thirteenth Judicial Circuit finding that Robert C. Channell had violated Section 501.204, Florida Statutes, and the rules and regulations adopted pursuant to Chapter 501, Florida Statutes, was introduced to prove that he had violated Section 468.112(2)(a), Florida Statutes. An order of contempt was also introduced to show that Robert C. Channell had violated the Court's original injunctive order. Robert Berndt contracted with Robert C. Channell for the construction of a pool at his residence. Subsequently, employees of Robert C. Channell cleared trees from the back of Berndt's residence and construction of a pool was begun by excavation of a hole in Berndt's backyard. Eli Jackson indicated that he had contracted with Robert C. Channell to build a pool at Tyrone Mobile Home Park which Jackson owned. Robert Channell did not apply nor obtain a building permit for the construction of pools at the residence of Robert Berndt or at the Tyrone Mobile Home Park. Robert Thomas indicated that he had inspected the pool constructed at Tyrone Mobile Home Park and determined that no permit had been obtained for construction of said pool, and further that the pool was constructed to residential standards. From the location of the pool it was clearly for the use of residents of Tyrone Mobile Home Park. There were eighty (80) or more families residing in Tyrone Mobile Home Park. On September 30, 1976, Robert C. Channell's license as a pool contractor in Hillsborough County had expired and was not renewed by the county. Subsequently, Channell contracted to build a pool for Randall Harris, who obtained the permit to construct a pool as owner of the property. Although Harris did some work on the pool, Channell was paid $7,200 to remove trees, work on the pool and construct a fence. Electrical work was done by an electrical contractor. Berndt complained that Channell was slow in starting his pool and did not receive many extras for which he had contracted with Channell. The delay in construction was the apparent result of Channell's attempts to finish projects underway in compliance with the requests of Mr. Shaw, the Building and Zone Director of Hillsborough County. Eli Jackson, the owner of Tyrone Mobile Home Park, and Randall Harris were both pleased with the pools Channell constructed for then.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the license of Robert C. Channell until he has reestablished himself as a licensed pool contractor in Hillsborough County, Florida. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Bearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box L386 Tallahassee, Florida 32302 Mr. Robert C. Channell 309 Jennal Place Tampa, Florida 33612 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether the Education Practices Commission should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Bobby Leon Murphy holds a Florida teacher's certificate, No. 170876. He began his teaching career in Mobile, Alabama, at Satsuma High School, in 1958. Now 55 years old, he has served as aquatic coordinator for Escambia County and director of the Washington Aquatic Center since June 14, 1982, twelve days before he lost the eldest of his three sons in an automobile accident. Sherman L. Robinson, the black principal of Washington High School, was among the first to learn of the tragedy, and came promptly to the family home to console his friend, "Bobby Lee," as he is known. It was Mr. Robinson to whom Coach Murphy referred, on some ten occasions, in conversations with another employee of Washington Aquatic Center, as a "big nigger" or simply as a "nigger." He once called his principal "just a big nigger trying to throw his weight around." T.102. Wife To Blame Mr. and Mrs. Murphy were with friends at Rosie O'Grady's in Pensacola on April 14, 1968, when a dispute arose between respondent Murphy and another patron. The gentlemen decided to pursue the matter outside. Mr. Murphy landed the first and perhaps only blow before a policeman ended the altercation and placed him under arrest for "assault with hands." Eventually, Mr. Murphy paid a $50.00 fine on account of the incident, or so he testified at hearing. On his application for extension of certificate dated March 24, 1987, after these proceedings began, Mr. Murphy reported that he had been fined $75.00. The application for extension was granted. On three previous applications for teacher's certificates, dated November 16, 1971, July 27, 1973, and April 4, 1983, there was no mention of the arrest. In response to the question, "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation?" the box in front of "No" had been checked on the 1971 and 1973 applications. On the 1983 application, "No" had been checked in response to the question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Petitioner's Exhibit No. 2. Respondent testified that he had not meant to mislead anybody in submitting the applications he did after his arrest and before the present charges were laid. It was just that his wife had filled earlier applications out, he explained, while he himself had completed the most recent and only accurate application. Life at Poolside Mr. Murphy has coached swimming for many years, and enjoys an interstate (Florida and Alabama) reputation as a good swimming coach. Since former Superintendent Stokes named him director of the Washington Aquatic Center, however, his principal duties have been administrative. The Center was built on the campus of Washington High School, but is used by junior and senior high students from other Escambia County schools as well. The office Mr. Murphy occupied at the Center opens onto the pool deck, and the office door is mostly glass. Almost all of the office is visible from outside, but passersby cannot see the corner of the office into which he retreated one day in the summer of 1982, while addressing Susan Lynn Graham, then 18 years old, and the only other occupant of the office. He urged her to join him in the corner and rub her "boobs" against him, but she declined. Ms. Graham was a pool attendant at the time. Mr. Robinson, the principal, had delegated to Mr. Murphy authority to hire and fire pool attendants, young people paid minimum wage to work as lifeguards, and to help with teaching, coaching and keeping the Center clean. Coach Murphy regularly hugged the pool attendants and others, and Ms. Graham was no exception. A witness described these as lateral, as opposed to frontal, hugs. Standing beside the recipient, he placed an arm around his or her shoulders, and pulled, squeezing the near shoulder against the side of his chest. For the most part, these hugs were gestures of friendship, encouragement or commendation, but, in Ms. Graham's case, he whispered into her ear when he hugged her, "I'm going to make love to Sue Graham," or "I'm going to make love to Sue Graham before the summer's over," or "Don't you forget it, baby, or something of the kind. This happened repeatedly. Once, when just the two of them were in his office, he told her he would eat her "pussy," then stuck his tongue out, emitted a "kind of laugh," (T.22) and shook his head. At this, she left the office, shocked and embarrassed, telling him not to say things like that. He seemed to her always to be leering: sometimes he raised his eyebrows. He offered to meet her "any time" at his condominium. (T.24) He once told her he liked watching her jump up and down on the diving board and seeing her bosom bounce. Ms. Graham told co-workers that Mr. Murphy had made passes at her and asked them not to leave her alone with him. When she complained to Mike Haas, however, the Center's assistant director, he seemed to support Mr. Murphy. She decided against reporting Mr. Murphy's attentions to his superiors, and left her job in May of 1983. She "just decided that it was not worth the pressure [she] was under to continue to work there." (T.24) Ann Cobb Palmer had known Mr. Murphy since she was eight years old, maybe even longer. He had been her swimming coach. Hired by respondent as a lifeguard at Washington Aquatic Center, she felt intimidated and degraded one day at work when, in her presence, he said to two young men, Messrs. Haas and Martin, "I wonder what she would be like in bed." (T.70) Eighteen years old at the time, she burst into tears and left his office crying a few days later when, again in her hearing, Coach Murphy told Mike Martin, "I would like to get in her pants." Id. Teresa Hunter Murphy, no relation to the respondent, was a married college graduate when she began working as a swimming instructor at Washington Aquatic Center in the summer of 1982. In October of 1982, as she and Coach Murphy sat in his office, he "stared at [her] crotch and said, mmmmm, I think I could eat on that thing for a few days," (T.96) adding, "[B]aby, we'd have to send out for room service." (T.97) When she expressed dismay at his language and stood up to leave, he asked, "[D]on't you like it?" Id. During the three years or so she worked under respondent's supervision, Ms. Murphy's first marriage deteriorated and eventually came to an end. Coach Murphy, who was aware of her marital problems, said to his assistant Mike Haas, "Mike, Teresa is not getting any, can you handle that[?]" (T.94) Another time, Coach Murphy asked her if she would "go for" dating or having sex with either of the "PE coaches" at Washington High School. Looking at a picture of the Washington High School girls' swim team one day, Coach Murphy pointed out to Ms. Murphy that "several of the girls on the front row had shown through their bathing suits" (T.95) and said it "looked like they had been busted wide open . . . [meaning that they] were not virgins any longer." (T.96) The pool attendants had no guarantee of continued employment and, at least one, Katherine Taylor, was dismissed by Mr. Haas, who said he and Coach Murphy had reached the decision together. At the time, the only explanation he offered was that it was for her benefit. (T.53) At hearing, however, he testified she was fired because she had been unwilling to clean a toilet. Keys to the Condo Coach Murphy hired Julie Ann Halpern Schweitzer, 22 years old and unmarried, to work at the Washington Aquatic Center as a lifeguard in September of 1983. At school board expense, he sent her to a coaching convention in Orlando in the company of his assistant, Mike Haas, Teresa Murphy, and Mike Byrd, who did not work at the Center. Upon their return, Coach Murphy summoned Ms. Halpern, as she then was, to his office. When she arrived, Mike Haas was already there. Coach Murphy asked if anything had happened on the trip, "insinuating hanky-panky and asked Mike Haas if he made a pass at [Ms. Halpern]. Mike Haas said he had tried. But the truth was, he never had tried." (T.42) After more banter in "almost a sick joking manner," Id., Coach Murphy handed some keys to Ms. Halpern, saying, "Julie, these are the keys to my condo. I want you and Mike to go out there and finish your business." (T.43) Mike Haas drove Ms. Halpern to the condominium and, after she declined his invitation to go inside, to Cordova Mall where they bought a birthday card for a boy they worked with, before returning to Washington Aquatic Center. This excursion took place "on Aquatic Center time." (T.47) After it was over, Coach Murphy called them into his office and asked what had happened. When Ms. Halpern told him they had not even gone inside the condominium, "he was upset very . . .silent." (T.45) "[H]e was silent for two days straight. For that whole week, we didn't get much out of him. We had to walk on eggshells." (T.47) This lack of communication made him less effective as an administrator. Many of the young women working under Coach Murphy's supervision avoided him, even though they needed to communicate with him regularly to do their jobs as well as possible. His behavior toward young women impaired his effectiveness as an administrator. New employees were sometimes told to avoid him. Electioneering Ann Cobb Palmer, a pool attendant named Daniel, Katherine Taylor, Teresa Murphy, Mike Haas, Michael T. Martin all were directed by respondent to display signs or make telephone calls on behalf of Charles Stokes, the former superintendent of schools who sought reelection, and did so, many of them on school time, during the fall of 1984. Respondent gave Renee Branum permission to make telephone calls on behalf of the Stokes candidacy on school phones during her working hours. (T.305) Students Not Involved As far as the evidence showed, respondent never propositioned any student or discussed any sexual topic with a student. He testified without contradiction, "I don't even have sex, and I haven't for the past three or four years." (T.295)
