The Issue The issue in the case is whether the Petitioner is entitled to licensure as a psychologist by the State of Florida.
Findings Of Fact On February 6, 1995, the Petitioner filed an application for licensure by examination as a psychologist in the State of Florida. During its regular meeting of February 9-11, 1995, the Respondent considered and rejected the Petitioner's application. By letter dated February 13, 1995, the Respondent notified the Petitioner that his application had been denied. On May 11, 1995, the Respondent filed a Notice of Intent to Deny the application. The Notice appears to have been signed on April 20, 1995. The Notice of Intent identifies the basis for the denial as follows: In voting to deny the application, the Board found that the applicant's program did not require coursework in biological bases of behavior, cognitive-affective bases of behavior, or statistics. Moreover, the program did not require an internship that met the requirements of Rule 59AA-11.0061(3)(j), F.A.C. Prior to commencement of the hearing, the parties resolved the issue related to coursework in the Petitioner's favor. The issue remaining for hearing is whether the Petitioner's educational program required an internship that met the requirements of the cited rule. The parties have stipulated that the Petitioner has 1660 of acceptable pre-doctoral internship hours. The Petitioner has also submitted 2340 hours of post-doctoral supervised experience. Post-doctoral experience may be used to augment pre-doctoral hours if the post-doctoral experience meets the requirements of Rule 59AA-11.003(30(j), Florida Administrative Code. The evidence fails to establish that any of the 2340 hours meet the requirements set forth for pre-doctoral experience. The evidence is insufficient to establish that, beyond those hours to which the parties have agreed, any of the Petitioner's remaining internship/experience hours meet the applicable requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Psychological Examiners, enter a Final Order denying the Petitioner's application for licensure by examination as a psychologist in Florida. RECOMMENDED this 19th day of December, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of December, 1996. COPIES FURNISHED: Dr. Kaye Howerton Executive Director Board of Psychological Examiners Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3 Tallahassee, Florida 32308 Robert Jacobs, Pro Se 1114 Evening Trail Drive Wesley Chapel, Florida 33543 Allen R. Grossman Assistant Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue =================================================================
Findings Of Fact Petitioner Davis applied for licensure as a professional geologist pursuant to the "grandfathering provision" in Section 492.105(2)(c), Florida Statutes. This provision exempts qualifying applicants from taking and passing the examination required of other applicants. The Board has stipulated that Petitioner Davis is in all respects qualified for licensure, except for the educational requirements contained in Section 492.105(1)(d)2., Florida Statutes. Petitioner Davis received a B.S. degree in 1969 and a M.S. degree in 1972 from the Department of Soils, Water and Engineering at the University of Arizona. His major for both degrees was in the area of agricultural engineering. Generally, this discipline integrates engineering and the plant and soil sciences. It is directed towards the creation of the proper environment for the optimum production of plants and animals. Petitioner's individualized education in the area included the study of hydrology, the soils, the geological processes and their relationship to crop production, and the utilization of water resources. Prior to hearing, the Board agreed that Petitioner's transcripts contain four courses of study which are clearly geological courses within the meaning of Section 492.105(1)(d)2., Florida Statutes. When the Board responded to the Requests for Admissions filed by Petitioner, they admitted all four courses were third or fourth year or graduate level courses in a university curricula. These admissions are given greater weight than the transcript legend which describes Physical Geology as a lower lever course. The four courses which are not in dispute are: Course Title Hours Physical Geology 3 Semester Hours Geology of Ground Water 3 Semester Hours Aquifer Mechanics 3 Semester Hours Development of Ground 3 Semester Hours Water Resources In order to meet the minimum educational requirements which would enable Petitioner Davis to qualify for licensure without examination, he must demonstrate that he completed 18 additional semester hours of geological courses, 12 of which must be at the third or fourth year or graduate level. Petitioner attended a two-part series of courses at the University of Arizona entitled "Physical Geography 3A" and "Physical Geography 3B", respectively. There were sequentially completed in the first and second semesters of the 1968-1969 school year. Petitioner successfully completed the two companion courses for a total of six semester hours of lower level credit. The textbook used in the two courses is entitled, "Introduction to Physical Geography." It was written by Arthur N. Strahler, a geologist who has training in geography. The Board did not give Petitioner Davis credit for these courses in its review of his transcripts because it was presumed that this particular course was more concerned with the economic and social implications of geography than physical geology. The Application Committee's familiarity with the author's textbook entitled "Physical Geography" tended to strongly support this presumption. The university catalog description of the two courses, together with Petitioner's testimony regarding course content and a detailed review of the textbook utilized, establish that the two lower division courses are "geological courses" which satisfy the educational requirement in Section 492.105(1)(d)2., Florida Statutes. The textbook emphasizes that this course focuses on the study of the earth's planetary zone in which most human beings have lived. Contrary to the presumption of the Application Committee, these courses did not deal with the economic and social implications of geography. Those topics were covered in a different two-part series of courses at the University of Arizona entitled "Economic Geography." During the first semester of 1968-1969 at the University of Arizona, Petitioner attended a course entitled "Structural Properties of Soil A CH 205", within the Department of Agricultural Chemistry and Soils. According to the university catalog, this course was identical to a course entitled "Hydrographic Properties of Soils HYDR 205", within the university's graduate programs in Hydrology and Water Resources Administration. A review of the course notes for this class, the catalog description and Petitioner's testimony regarding the course content all demonstrate the course was an upper level geological course which meets the educational requirements set forth in Section 492.105(1)(d)2., Florida Statutes. Petitioner successfully completed the course for three semester hours. During the time period in which the Petitioner took the course designated as both "Structural Properties of Soil ACH 205" and "Hydrographic Properties of Soils HYDR 205", the university had developed a number of different hydrology programs. A Masters of Science Degree with a major in hydrology was available in any of the following department's during this time period: Agricultural Chemistry and Soils, Agricultural Economics, Agricultural Engineering, Civil Engineering, Geology, Meteorology, and Watershed Management. Many of these graduate degree programs were interrelated. For example, one of the committee members on the Committee on Hydrology and Water Resources was an associate professor in the Geology Department. Another associate professor in the Geology Department taught one of the hydrology courses. Undergraduate programs at the institutions were developed in a way that allowed students from one department to directly enter into hydrology programs sponsored by another department. There was duplication in the teaching of the fundamentals of the earth sciences in many of the departments. This was frequently noted in the course descriptions in the university catalog. Petitioner successfully completed an upper level course in "Physical Climatology MEOR 221" in the second semester of the 1968-1969 school year for three semester hours of credit. Petitioner's recollection of course content, along with the university catalog description, reveal that the following matters were studied: heat and water balance of the earth's atmosphere and its application to problems of physical geography, agrometeorology, and hydrology with particular reference to arid regions. Although this physical climatology course was taught in a meteorology program, it is a geological course which meets the educational requirements of Section 492.105(1)(d)2., Florida Statutes. Petitioner Davis successfully completed an upper level or graduate level course entitled "Hydrology CE 223" at the University of Arizona for three semester hours during his work on his Masters Degree in the first semester of the 1971-1972 school year. The aforemantioned course was taught by a professor within the Department of Civil Engineering. The university, however, recognized the course was duplicated in a upper level or graduate course within an interdisciplinary hydrology program. The catalog noted that it was identical to "Hydrology I-HYDR 223." The text used for the course, along with Petitioner's recollection of the course, demonstrate that the course was primarily concerned with the elementary treatment and basic application of geophysics to major topics in hydrology, including rainfall, evaporation, groundwater and runoff. This hydrology course meets the educational requirement as an upper level geological course for the purpose of Section 492.105(1)(d)2., Florida Statutes. During the same first semester of 1971-1972, Petitioner completed a course identified as "Special Problems AEN 299." This was an independent study course which allowed the Petitioner to complete a research paper in an area of personal interest during his graduate studies. Petitioner studied the difference in sediment yields between brush-covered watersheds and grass-covered watersheds on semi-arid rangelands. Unit-source watersheds were selected to assure that the geological influences to be studied were representive of these rangelands in the area. Petitioner's testimony of the course content, coupled with the research paper he completed for credit in this course, demonstrate that the course was a geological course which meets the educational requirements of the statute. Petitioner received three semester hours of credit for the course in his graduate program. Although all of the other courses presented by Petitioner did have some geological content, they did not meet the statutory definition of a geological course. They were not predominantly geological in nature and content, according to the evidence presented. During the time Petitioner attended the University of Arizona, various Departments at the institution taught courses with identical content. This occurred even though these efforts were duplicative. In addition, various Departments interacted and developed interdisciplinary programs in the earth sciences. As a result, Petitioner's transcripts did not fully or accurately reveal that many of his courses were actually geological course.
Recommendation Based upon the foregoing, it is RECOMMENDED: The application of Phillip R. Davis for licensure as a professional geologist without examination under the grandfathering provisions of Section 492.105(2)(c), Florida Statutes, be granted. DONE and ENTERED this 2nd day of March, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5808 Petitioner's proposed findings of fact related to the formal administrative hearing are found in paragraphs 1-10 and 27-111. These findings of fact are address as follows: 1.-5. Accepted. Rejected. Irrelevant. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. See HO #3. Accepted. See HO #2. Accepted. See HO #2. Rejected. Irrelevant. Accepted. See HO #2. Accepted. Rejected. Irrelevant. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #1 and #2. Accepted. Accepted. Accepted. Accepted. See Findings of Fact in 90-4085R. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See preliminary statement. Rejected. See HO #2 and Statement of the Issue. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Accepted. Accepted. See HO #7. Accepted. See HO #9. Accepted. Accepted. Accepted. See HO#6-#9. Accepted. See HO #17. Accepted. See HO #19-#20. Accepted. Accepted. Accepted. See HO #19. Accepted. See HO #20. Accepted. Rejected. Contrary to fact. See HO #23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Rejected. Contrary to fact. Accepted. See HO #10 and #12. Accepted. See HO #10. Accepted. Accepted. See HO #11. Accepted. Accepted. See HO #11. Accepted. See HO #14-#15. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #16. Accepted. See HO # 21. Accepted. See HO #21-#22. Accepted. See HO #22. Accepted. Accepted. Accepted. Rejected. Contraty to fact. See HO # 23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Accepted. Rejected. Contrary to fact. See HO #23. Accepted. Rejected. Contrary to fact. See HO #23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Accepted. Rejected. Contrary to fact. See HO #23. Accepted. Rejected. Contrary to fact. See HO #23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Accepted. Rejected. Contrary to fact. See HO #23. Accepted. See HO #24. Accepted. Rejected. Contrary to fact. He has education in both. Rejected. Irrelevant to issue in dispute. See HO #2. Rejected. Irrelevant to issues. See HO #2. Rejected. Weight and sufficiency issue as opposed to credibility issue. Rejected. Weight and sufficiency issue as opposed to credibility issue. Rejected. Weight and sufficiency issue as opposed to credibility issue. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Rejected. Contrary to fact. :Survey Soil and Water Eng AGE" is a lower level course that could not be used. Otherwise accepted. Rejected. Redundant. Accepted. Rejected. In this case the Board used the rule, so the pre-rule policy is irrelevant. Accepted. Accepted. Rejected. Contrary to fact. Petitioner has an education in both. Rejected. Contrary to fact. Applies to licensure with examination. Rejected. Contrary to fact. Rule invalidated for licensure without examination. Accepted. See HO #23. Accepted. Rejected. Contrary to fact. COPIES FURNISHED: DAVID M CALDEVILLA ESQ de la PARTE & GILBERT 705 E KENNEDY BLVD PO BOX 172537 TAMPA FL 33672 0357 ARTHUR R WIEDINGER ESQ ASST ATTORNEY GENERAL DEPT OF LEGAL AFFAIRS SUITE 1603 - THE CAPITOL TALLAHASSEE FL 32399 1050 ANGEL GONZALEZ - EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL GEOLOGISTS NORTHWOOD CENTRE - SUITE 60 1940 N MONROE ST TALLAHASSEE FL 32399 0794 JACK McRAY ESQ - GENERAL COUNSEL DEPT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE - SUITE 60 1940 N MONROE ST TALLAHASSEE FL 32399 0792
The Issue The issue is whether Rules 21H-21.002(1) and 21H-21.004(1) are an invalid exercise of delegated legislative authority.
Findings Of Fact Ronnie F. Taylor, of Post Office Box 697, Cedar Key, Florida, is employed by the engineering firm of Ingley, Campbell, Moses and Associates of Gainesville, Florida, which engages in mechanical, electrical and plumbing engineering. Taylor has been with this engineering firm for four years and is currently a vice president in charge of production of electrical engineering documents. Prior to this employment, Taylor spent 14 years as an electrical engineer with the engineering firm of Reynolds, Smith and Hill of Jacksonville, Florida. When Taylor left Reynolds, Smith and Hill, he was the senior design engineer. Taylor served in the military as an electrician. Upon completing military service in 1967, Taylor entered Florida Junior College. He received an Associate of Science degree in Electrical Engineering Technology in 1970 from that institution. Following that degree, Taylor began employment with Reynolds, Smith and Hill, where his responsibilities included the design of electrical projects for commercial buildings, including writing specifications, making cost estimates and producing a finished product. Taylor has spent his entire career in electrical engineering and has no experience with other specialties of engineering. He has extensive experience in electrical engineering having designed and completed numerous large commercial projects. However, because Taylor is not a licensed professional engineer, a licensed professional engineer must oversee all projects during the course of design and completion and must sign and seal all completed work. Taylor is not a licensed professional engineer because he has failed to pass the Fundamentals of Engineering (FE) portion of the engineering examination. He has failed in fourteen attempts to pass the FE exam. Taylor did pass the Principles and Practices (P & P) portion of the exam in 1982. Licensure requirements specify that both sections must be passed prior to licensure. Taylor became qualified to take the engineering exam in 1977 pursuant to Section 471.21(1)(c), Florida Statutes (1977), which permitted an applicant to take the exam with "a specific record of 10 years or more of active practice in engineering work of a character indicating that the applicant is competent to be placed in responsible charge of such work." This so-called 10 year cycle permitted an applicant to qualify for the exam without the otherwise required 4- year college degree and 4 additional years of experience. In 1979, Section 471.013, Florida Statutes, was enacted, allowing persons in the final year of engineering school to take the FE exam to qualify as an engineer intern. This provision has been in effect since 1979. The FE exam, as required by Rule 21H-21.002(1), which is challenged here, includes questions on the subjects of mathematics, mathematical modeling of engineering systems, nucleonics and wave phenomena, chemistry, statistics, dynamics, mechanics of materials, fluid mechanics, thermodynamics/heat transfer, computer programming, electrical circuits, statics, structure of matter, engineering mechanics, electronics and electrical machinery. While Taylor scored highly on the subjects relating to electrical engineering, he had difficulty with other areas of the exam. The course work completed by Taylor in 1970 did not include some of these areas with which Taylor had difficulty. Taylor has had no course work in computer programming, thermodynamics, statistics, nucleonics and wave phenomena. The subjects tested in the FE exam are updated in order to test applicants on the most current information and knowledge of engineering fundamentals. Herbert A. Ingley is a licensed professional engineer and holds a Bachelors degree in Chemical Engineering, a Masters degree in Mechanical Engineering, and a Ph.D. in Mechanical Engineering with a minor in Environmental-Mathematics. He taught full time on the faculty of the University of Florida in Mechanical Engineering for 11 years. In his opinion, it is more difficult for applicants to pass the FE exam the further they are from their formal education and, therefore, applicants in the 10 year cycle have more difficulty passing the exam. According to Ingley, the requirement that persons such as Taylor wait 10 years before taking the FE exam is not logical. However, Ingley also opined that it is important for a professional engineer to have a fundamental knowledge of engineering and that there is a need to test the fundamental basics of engineering for each person who is going to become a licensed professional engineer. George Edward Rabb is a licensed professional engineer, having been licensed in 1965. He was grandfathered and therefore only had to pass the P & P exam. The FE exam was waived based on specific portions of statute and rule which waived the FE exam for persons with fifteen years experience. The waiver was only available to persons qualifying prior to November, 1970. According to Rabb, an engineer needs to have a working knowledge of fundamentals and to understand the general concepts of engineering. Robert D. Kersten, who has been the Dean of the Department of Engineering at the University of Florida for 20 years, has a Bachelors degree in Mathematics and Chemistry, a Masters degree in Civil Engineering, and a Ph.D. in Civil Engineering, Water Resource/Hydrologic Engineering. Dean Kersten has served in numerous capacities with both state and national professional associations involved in accreditation of engineers and served on the Board of Professional Engineers in Florida and on the National Council of Engineering Examiners. The FE exam is prepared by the National Council of Engineering Examiners and is designed to cover the fundamental areas essential to the basic practice of engineering. The FE exam tests both the common body of knowledge that is essential to practice in the profession and the ability to apply that knowledge. According to Dean Kersten the FE exam tests items which should be within an engineer's basic knowledge and which are necessary to communication between engineers in a design team approach to project design. Dean Kersten acknowledges that the FE exam is more difficult for applicants who lack a degree or who have been out of the academic area for a period of time, but opines that those factors do not excuse an applicant from mastering and retaining the basic fundamentals important to the practice. In fact, the FE exam is designed so that 70 percent of the applicants with-the 4- year college educational background pass the exam. Only 40 percent of the applicants in the 10 year cycle pass the exam.
The Issue This case addresses the issues of whether the school board had good cause for rejecting the nominations of persons to fill administrative employment positions in the school system. Petitioner as superintendent had recommended the appointments. In particular, the superintendent asked the school board to employ the nominees for a period of three years. The school board rejected that recommendation in favor of a one year appointment because it did not wish to obligate itself to a three year contract period believing that such an arrangement would be imprudent given what it believed to be a troubled economic climate for the school system. It also did not wish to obligate a future superintendent to work with the nominees for three years being convinced that the present superintendent who made the nominations would not seek reelection. Additionally, this case concerns itself with the appropriate outcome beyond this point should good cause be shown for rejecting the nominations. See Section 230.23(5)(a), Florida Statutes.
Findings Of Fact On May 12, 1992, Petitioner, superintendent for the Union County Public School System nominated twelve employees for consideration for reemployment by the Respondent, School Board of Union County. Those nominees were and would be administrative employees. They were nominated for positions falling into two broad categories. The first category was that of professional administrative assistant to the superintendent in the positions of Deputy Superintendent, Assistant Superintendent for Finance, Assistant Superintendent for Instruction, Assistant Superintendent for Operations, Director of Student Services, Supervisor of Instruction and Director of Maintenance and Construction. The second category was that of Principals and Assistant Principals including the nomination of three principals and two assistant principals. Unlike the circumstance in previous years the superintendent recommended that the administrative employees be given a three year contract which would be subject to annual review and renewal as addressed in Section 231.36(1)(b), Florida Statutes. The contrast is that the superintendent has traditionally nominated administrative employees for annual contracts. The sole exception to his practice during the 24 years of service as superintendent in the previous 28 years was provision of a three year contract for Billy Foister in 1975 as a principal. In the history of the school system described at the final hearing there was only one other occasion in which three year contracts were provided to administrative personnel. This was in 1978 under the administration of Superintendent McGill when Mr. Foister and a Ms. Riherd received three year contracts. The recommendation for a three year contract for the administrative employees was unexpected. After discussion at its regular meeting of May 12, 1992 the school board tabled the nominations and requested its legal counsel to research the definition of "good cause" for rejecting the nominations found within Section 230.23(5)(a), Florida Statutes, before deciding its response to the nominations made by the superintendent. On May 21, 1992, a special meeting was held by the school board at which time it rejected the nominations for appointment made by the superintendent. The reasons for rejecting the nominations concern the unanimous belief by the school board members that the decision to obligate school funds for an expanded period related to the administrative employees was an inappropriate choice in difficult economic times. Moreover, the school board was of the unanimous opinion that it would be an unwise decision in a circumstance in which the school board believed that the superintendent would not seek reelection in 1992 and the three year contract would unduly hinder the next school superintendent in choosing administrative employees to serve his or her administration. In making its decision to reject the nominations the school board took no issue with the moral and professional standing of the nominees. Each nominee was offered as a candidate for the same duty functions as those nominees had previously performed in the school year 1991-92. In essence those functions would not change in the school years 1992-93, 1993-94 and 1994-95 under the nominations made by the superintendent. The school board was prepared to offer contracts to the nominees for the up coming school year 1992-93. As David Thomas Dose, the Director of Finance for the school system described, the school board has been able to meet the salary schedule for its employees in the school year 1991-92. Likewise, he believes that the school board will be able to meet the salary schedule for the school year 1992-93. That salary schedule for 1992-93 has been passed by the board. Dose does not believe that the budget which he has prepared for the school year 1992-93 is in any jeopardy concerning the ability to honor the obligations set out in that budget. However, the budget for the school year 1992-93 does not contain salary increases based upon a decision made by the school board on May 12, 1992. That decision was recommended by the superintendent on information provided by the Director of Finance. It is not to be unexpected that the Director of Finance had not met with the school board concerning the upcoming 1992-93 budget before it voted on the nominations. The budget was not due until mid-July, 1992. The Director of Finance would have made information available to the school board about the budget for 1992-93 had the school board requested such information in aid of its determination on the three year contract proposal by the superintendent for the administrative personnel described here. The school board did not seek the assistance of the director of finance in any manner in determining that it would be inappropriate to offer three year contracts for the administrative personnel given the uncertain economic environment. Nonetheless, the school board had reason to be concerned about the fiscal propriety of three year contracts for the administrative personnel. As the school board's chief negotiator on their collective bargaining team describes it, financial circumstances for the school board were "tight" coming into the school year 1992-93 and the financial situation for the school year 1993-94 was described as "not good", referring to the economic climate for the school system in Union County. Even the superintendent acknowledges that there is a "tightening up process". In particular the school year 1991-92 saw three state cutbacks in revenues resulting in a reduction of the budget for the Union County School System and the superintendent was and is aware of that fact. In view of the economic problems some employees who worked for the school system in 1991-92 were not reappointed for the school year 1992-93. The school board had in February, 1992 of the school year 1991-92 voted an annualized raise of 5% for non-instructional personnel. That raise was not retroactive such that the non-instructional personnel would have received the benefit of a 5% raise for the full school year 1991-92; however, the raise carries forward at a 5% rate for the upcoming school year 1992-93. The school board also appointed 15 teachers to professional service contracts in May, 1992, which is tantamount to a tenured or lifetime contractual arrangement. The school board had a $400,000 working surplus at the time the Director of Finance completed the draft budget for the upcoming school year 1992-93. Some adjustment to the benefit of the school board concerning fiscal policy occurred as a result of a mistake in the FTE count in the school year 1991-92 which will make more money available for the same number of students for the school year 1992-93. The Financial Director also made mention of the 6% increase in projected revenues for the state by the Estimating Conference in its most recent projection. The financial situation in the school years 1993-94 and 1994-95 is less clear than for the school year 1992-93. The revenue estimate for the school year 1993-94 will not be made until January, 1993, ergo the revenue estimate for the school year 1994-95 will not be made until January, 1994. The school board members and the Director of Finance are aware that other school systems throughout Florida have been less fortunate than Union County concerning fiscal matters and this influenced the school board in its thinking when rejecting the three year contract proposals by the superintendent. On balance there is sufficient certainty in the school year 1992-93 to support a contract with the 12 administrative employees in question. That certainty is lacking in the school years 1993-94 and 1994-95 concerning the fiscal position for the school system. Concerning the latter two years, although the school board has the right to transfer the administrative employees in the second and third year of the recommended contract period, the contract is subject to annual review and renewal based upon satisfactory performance by those employees, there is a commitment to reduce the budget without dismissing employees and there is the ability to abolish positions should the need arise, it is not unreasonable for the school board to avoid those complications by contracting on an annual basis with the administrative employees. This avoids the awkwardness in operating the school system in an potentially less favorable economic climate in the school years 1993-94 and 1994-95 where it might become necessary to affect employee transfers associated with administrative personnel in to other positions to honor the contracts with those administrative employee, other budget adjustments or the abolition of employment positions that were filled. This is as contrasted with the flexibility to make decisions going into the school years 1993-94 and 1994-95 concerning the appointment of administrative personnel. Such an arrangement for annual contract with administrative employees is in keeping with the traditions by the school system to contract with administrative employees on an annual basis, a system which the present superintendent has found acceptable until this occasion. The twelve administrative personnel are the close advisors to the superintendent in directing his or her administration. Consequently, there must be a comfortable working relationship with these persons. The present superintendent had recognized this necessity when he took office from former Superintendent McGill and requested the resignations of similar administrative personnel to allow him to put in place his own management team. Nonetheless the present superintendent is attempting to bind a possible successor to the present superintendent's choice in administrative personnel. This is done in a setting in which as many as seven candidates have sought the superintendent's position in the upcoming election for the year 1992. In that election the new superintendent comes into office in November, 1992. The present superintendent, concerning his own intentions to seek reelection has been at least elusive if not evasive in a setting in which his position on reelection is crucial to resolving the issue of the propriety of his three year recommendation for the contract term. He has led the board to believe that he is not seeking reelection. On occasion he has even told one board member that he would not seek reelection. In discussion at the May 12, 1992 school board meeting the present superintendent referred to the possibility of a new superintendent but did not discuss his candidacy. At that time he should have made clear that he intended to run for reelection if he expected to have his recommendation for a three year contract for administrative employees to have legitimacy. When asked the question at hearing whether he had made the decision to run or not the present superintendent responded: "You'll know on July 17." While it is true that a majority of board members are leaving their positions this year, they have the right to be concerned about the preservation of needed flexibility on the part of an incoming superintendent to choose his or her close administrative personnel, those positions at issue here. The present superintendent's equivocation concerning his intentions to run for reelection does not serve the legitimate interests of the school system on this subject. Nor does this unwillingness to confirm his position to seek reelection or decline that opportunity offer rationale support for his decision to break with his long standing policy to recommend annual contracts for administrative personnel. The present superintendent was no more compelling in his attempt to describe why the annual contract for administrative personnel had seemed advisable in the past but an unwise arrangement for the future. The present superintendent speaks of the need to treat the administrative personnel as professionals and to afford them job security and to remove them from the whims of political process. When questioned on the meaning of those reasons or explanations his responses were vague. He was unable to explain the inconsistency in having believed that the superintendent needed to have immediate control concerning the administrative personnel and use of an annual contract to maintain that power in carrying out his duties with the close assistance of the administrative personnel and the sudden commitment to a three year contract at a point in time when he might not be the superintendent by choice. When asked why he had not made this decision last year, why it was not important last year to have three year contracts for the administrative personnel he responded "maybe I should have, you know". Moreover, when asked the question had it only become more of a problem now that he might not be the superintendent, he stated "I don't have no idea". When asked why on the May 21, 1992, when the decision was being made about the three year contracts proposed that he did not advise the school board of a decision to remain as superintendent, the present superintendent acknowledged that he did not say anything on that occasion to allow the school board to know his position concerning his future involvement with the school system beyond the 1992 election. The present superintendent alluded to his perceived motivation of the school board in rejecting his contract period for the administrative personnel. He called the motivation political, having nothing to do with the budget or fiscal concerns. On the other hand, the superintendent explained that he was interested in rectifying his approaches in the past by giving multi-year contracts to administrative personnel as he should have done years ago and that he finds it important to have continuity in the system through the administrative personnel in a setting in which the superintendent may change and as many as four board members may change in the upcoming election. When questioned about the influence of such an arrangement on an incoming superintendent, that is a three year contract for administrative personnel, the present superintendent responded that the new superintendent should have appointment powers for those administrative personnel and that all the new superintendent would have to do was wait two years and get all the appointment powers that the new superintendent might need. This points out that the present superintendent would set aside a workable and flexible approach to the appointment of administrative personnel to annual contracts which he had fostered to his benefit as the serving superintendent in favor of restrictions on the control exercised by an incoming superintendent, an unreasonable legacy of patronage beyond the present superintendent's tenure. It is the present superintendent who seeks to restrict and hinder the orderly process in managing close subordinates to the superintendent, not the outgoing school board which by vying for a one year contract for administrative personnel protects an incoming superintendent from being hamstrung by administrative appointments that will exist for much of his or her term, without tangible benefit to the present board beyond the time which it will serve. Where the present superintendent testified about this belief that in the past administrative personnel were political pawns, he would now make them his political pawns by seeking to control the administrative appointments of an incoming superintendent for years following the election of that new superintendent. The present superintendent makes mention that the three year contract proposal benefits the present administrative personnel. It would. It might help recruitment. It might redress complaints by administrative personnel that the board does not appreciate them when it denies the three year recommendation. Those concerns are overshadowed by the need of an incoming superintendent to be able to choose administrative personnel that he or she would be comfortable with and not be bound by the decision of the present superintendent to deviate from his prior course of annual contract recommendations. Finally, the present superintendent says that if he does not have the authority and the power over his administrative employees to appoint them, then he can not control them. Nothing that he has said in his testimony nor revealed in this record leads to the conclusion that his control is any less effective in asking for a one year contract as opposed to a three year contract in a setting in which it is not clear whether he will seek reelection or be successful in that endeavor should he choose to stand for another term. If he runs and is successful he may on the next occasion of proposing a contract set out his preference for a three year contract beginning with the school year 1993-94. If he does not run or is unsuccessful in his candidacy it is no longer his responsibility nor right to decide the direction the school system shall follow. In the event that he is reelected the control which he may exert in the school year 1992-93 on an annual contract is no less effective than a three year contract for administrative personnel. Under the circumstances the board had good cause for rejecting a three year contract for administrative personnel as it might interfere with the authority and control exerted by an incoming superintendent in the school years 1993-94 and 1994-95.
Recommendation Upon consideration, it is, RECOMMENDED: That a Final Order be entered which rejects the superintendent's recommendation for a three year contract period for the twelve administrative employees while upholding their nomination and that the final order grant reasonable attorneys fees to the superintendent's counsel. DONE and ENTERED this 22nd day of July, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed fact-finding of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 is rejected in any suggestion that the budget circumstance favors three year contract for the nominees, similarly Paragraph 11 is rejected. Paragraphs 12 and 13 are subordinate to facts found with the exception of the latter sentence of Paragraph 13 which is rejected. Paragraph 14 is subordinate to facts found. Paragraphs 15 and 16 are rejected. Paragraph 17 to the extent that it suggests unacceptable process in the decision to reject the three year contract period is rejected. Paragraph 18 is accepted as discussed in the Conclusions of Law. Respondent's Facts Paragraphs 1 through 18 are subordinate to facts found. Paragraph 19 is not necessary to the resolution of the dispute. Paragraph 20 for purposes of this case is not accepted as the basis for rejecting the three year contract period. Paragraphs 21 through 29 are subordinate to facts found. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson and Cowdery 1709-D Mahan Drive Tallahassee, FL 32308 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2522 Blair Stone Pines Drive Post Office Box 1547 Tallahassee, FL 32302 Bobby Lex Kirby, Esquire Route 2 Box 219 Lake Butler, FL 32054 Regina Parrish, Chairperson Union County School Board 55 SW 6th Street Lake Butler, FL 32054
The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.
Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 The issue in this case is whether Petitioner’s application for continuing education course approval should be granted by the Board of Chiropractic Medicine.
Findings Of Fact Respondent, Board of Chiropractic Medicine, is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013(6) and Chapter 460, Florida Statutes. The Board has the responsibility to approve continuing education courses sponsored by chiropractic colleges. Section 460.408, Florida Statutes. Continuing education providers established through medical osteopathic or chiropractic colleges send their initial courses to the Board for approval. Ordinarily, once the course is approved they become an approved provider and do not send subsequent continuing courses to the Board for approval. Petitioner is an approved continuing education course provider. On July 24, 2001, Petitioner submitted an application of an online course to the Board for approval. The submitted course, ChiroCredit.com, is a 13-hour course consisting of nine regular hours, two HIV/AIDS hours, and two risk management hours. With the application, Petitioner submitted a letter dated July 19, 2001, by Drs. Richard Saporito and Paul Powers, Petitioner’s representative. The letter requested the Board “to review the issue of acceptance of distance based online education credits for Chiropractors continuing education requirements in the State of Florida.” On August 22, 2001, Stephanie Baxley, Regulatory Specialist for the Board, sent a memorandum to Dr. Gene Jenkins, D.C., chair of the Continuing Education Committee, requesting continuing education review. Dr. Jenkins signed and marked the memorandum "approved" on August 29, 2001. On the same date, Dr. Jenkins also indicated approval of an online course offered by another provider, Logan College. Ms. Baxley wrote to Dr. Richard Saporito notifying him that ChiroCredit.com had been approved for continuing education credit. Vicki Grant is a programs operations administrator with the Department of Health. Her responsibilities include managing the licensing and discipline of four professions, including chiropractic medicine. Ms. Grant received a phone call from Dr. Jenkins who informed her that he had made a mistake by indicating approval of the online course offered by Petitioner. In response to his inquiry as to how to proceed, she advised him to notify the continuing education staff, tell them he had made a mistake, and ask that the matter be presented to the full board. She also spoke to Sharon Guilford regarding the matter. Ms. Guilford is Ms. Baxley's supervisor. Sharon Guilford is a program operations administrator with the Department of Health. One of her responsibilities is serving as the administrator for the continuing education section that consists of six professions, including chiropractic medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins' phone call. On September 11, 2001, Ms. Guilford wrote a note on a copy of the August 29, 2001 letter from Ms. Baxley to Dr. Saporito that stated as follows: "Per Dr. Jenkins-course should've never been approved. Send letter correcting the error of approval." On September 11, 2001, Ms. Baxley sent a letter to Dr. Saporito advising him that the approval letter of August 29, 2001, was sent in error and that the Board would take up the matter at their October 2001 meeting.1/ The Board did address the matter at their October 1, 2001 meeting which was held via teleconference. Dr. Saporito and Dr. Paul Powers spoke to the Board on behalf of Petitioner. During the last part of the Board's consideration of this matter, various board members expressed concern that the Board did not have enough information to vote for an approval of the course and discussed having an opportunity to receive more information. After much discussion, the Board unanimously voted to deny Petitioner's application for approval of the course for continuing education purposes. At the same meeting, the Board also denied an application of Logan College to provide continuing education via an online course. The Notice of Intent to Deny states the grounds for denial: As grounds for denial, the Board found that the course did not meet the requirements of Florida Administrative Code Rule 64B2- 13.004. Specifically, the rule does not contemplate the awarding of credit for virtual courses or those taken online by use of a computer. The Board opined that 'classroom hours' as used in the rule means in-person education and not time spent in front of a computer. The course offered by the applicant is an online offering. Additionally, the Board expressed concerns about the educational merit and security protocols used by online course providers, but welcomes more information regarding these topics. The Board has never approved an online, homestudy, or video-taped presentation for continuing education course credit. The courses presented to the Board by Petitioner and Logan College were the first online courses to be presented for Board approval. The Board interprets its applicable rule, which requires each licensee to obtain 40 classroom hours of continuing education, to require live and in-person classroom hours. Petitioner offered the testimony of two expert witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller has knowledge regarding theories of learning and education, but lacks knowledge about chiropractors, chiropractic education, or chiropractic continuing education and does not appear to be very familiar with Petitioner’s particular online course. Dr. Boyle is familiar with both chiropractic continuing education and Petitioner's course. He disagrees with the Board's interpretation that the term "classroom hours" must mean a lecture or live format. However, Dr. Boyle described the broadest definition of "classroom" to be "anywhere, anyplace, at any pace, anytime." He acknowledged that the Board could set up criteria for online courses that differ from the criteria for traditional classrooms. Respondent’s expert witness, Dr. David Brown, noted that most chiropractors practice in isolation and very few have staff privileges at hospitals. In his opinion, a legitimate policy reason for requiring chiropractors to obtain a certain amount of in-person continuing education is that they can “rub shoulders with their peers” and learn from one another. Dr. Brown noted that many states impose restrictions on the number of online hours that may be taken or on the type of licensees who are eligible to receive credit. Dr. Brown interpreted the word "classroom" within the context of the rule containing the requirement of 40 classroom hours of continuing education to mean ". . . to physically sit in a room, in a classroom type environment which could be an auditorium or some other environment, with your peers who are also taking the class in order to obtain course credit. I think that's a traditional type of view." Dr. Brown's interpretation of "classroom" within the context of the Board's rule is more persuasive than those of Petitioner's experts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered denying Petitioner’s application for continuing education course approval.2/ DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002.
The Issue The issues in this case are whether the Respondent Florida Keys Community College had good cause to remove 39 academic credits and an associate in science degree from Petitioner Timothy Jones’ academic transcript and whether Respondent has good cause to terminate Petitioner from employment as professor of marine propulsion.
Findings Of Fact The Parties. Respondent, the Florida Keys Community College (hereinafter referred to as the “FKCC”), is a part of the “Florida College System,” subject to the provisions of Chapter 1001, Part III, Florida Statutes. FKCC, located in Key West, Florida, is specifically recognized as a Florida “community college” pursuant to Section 1000.21(3)(h), Florida Statutes. FKCC is governed by a local board of trustees. See § 1001.60(3), Fla. Stat. FKCC’s president is Jill Landesberg-Boyle, Ph.D. At the times material to this proceeding, Petitioner, Timothy Jones, a full-time faculty member of FKCC, was employed by FKCC as an instructor in, and, for part of his employment, the director of, the Marine Engineering Department. Mr. Jones was initially hired in August 2001. When hired, Mr. Jones, who had no prior teaching experience, possessed an associate of arts degree, which he had earned in the 1970’s. Mr. Jones did not possess an associate in science degree with a major in marine propulsion or marine engineering at the time he was hired. He did, however, possess practical experience, having owned and operated a marine outboard sales and repair business for approximately two years prior to his employment with FKCC. At some point prior to 2004, Mr. Jones became director of the Marine Engineering Department. In addition to his instructional duties, Mr. Jones acted as supervisor for Mark Welsh, another Marine Engineering Department instructor and the Department’s faculty advisor. Mr. Jones taught courses dealing with gasoline powered engines, while Mr. Welsh taught courses dealing with diesel powered engines. Mr. Jones’ Associate in Science Degree; Marine Engineering, Management & Seamanship. In January or February 2004, Mr. Jones met with Dr. Maureen Crowley, then vice president of instruction for FKCC. At some point during the meeting, Dr. Crowley told Mr. Jones that it appeared that the Southern Association of Colleges and Schools (hereinafter referred to as the “SACS”), would likely be requiring that instructors at FKCC possess a degree in the area in which they were employed to teach. This was not a new requirement, but one that had not previously been enforced by SACS. Dr. Crowley told Mr. Jones that, if SACS did enforce the policy, he would probably not be allowed to continue teaching in the Marine Engineering Department if he did not obtain an associate in science degree in his area of instruction. Dr. Crowley also told Mr. Jones that the quickest way for him to earn the requisite degree would be to earn course credits from FKCC by “Institutional Credit by Examination.” In light of the fact that Mr. Welsh was the Marine Engineering Department’s advisor, Dr. Crowley told Mr. Jones to talk to him about how to proceed. The awarding of credits by examination, including “Institutional Examinations,” is authorized by FKCC Board of Trustees Rule 7.710 (College Exhibit 3). In particular, Rule 7.710 provides, in pertinent part, the following: Credit may be earned in certain other College courses by successful completion of an appropriate examination. Evidence of proficiency in the subject is to be presented to the instructor of the course. If, in the opinion of the instructor, the student is eligible to take the examination, the student will be required to pay a non refundable examination fee in accordance with the Fee Schedule (see Financial Information) prior to the administration of the examination. The instructor of the course will administer the examination at an appointed time and assign a final grade. If the student passes the examination at the 80% level or above . . . credit will be awarded and recorded on the student’s permanent record by the Director of Enrollment Services. . . . Despite “opinion” testimony to the contrary, the foregoing Rule is clear as to its requirements, including the requirement that an “examination” designed to test the student’s knowledge is to be “administered” before any credits are to be awarded for any course available at FKCC. The Rule does not authorize or contemplate the awarding of course credits simply because the “instructor” believes that the “student” is knowledgeable, based upon prior observation or some review of the student’s records. Subsequent to the meeting with Dr. Crowley, Mr. Jones met with Mr. Welsh. Mr. Jones told Mr. Welsh that he, Mr. Jones, needed to earn an associate in science degree or that he would not be allowed to continue his employment with FKCC. Mr. Jones also told Mr. Welsh that Dr. Crowley had told him to talk to Mr. Welsh about the best way for him to earn the requisite degree. According to Mr. Jones, he left the meeting leaving the decision in Mr. Welsh’s hands, assuming that Mr. Welsh would do whatever was necessary to ensure that he earned the necessary degree. Mr. Jones heard nothing more about the matter until April of 2004, when Mr. Welsh presented him with 13 completed Applications for Credit by Institutional Examination (hereinafter referred to as the “Applications”). At the top of each Application is the following explanation, which consistently explains the requirements of Rule 7.710: Students who are currently enrolled in a credit course other than that being challenged or have not taken an institutional exam for the course at any previous time or not previously taken the course at FKCC or through transfer credit may earn credit in a number of college courses for which no CLEP, DANTES, or Excelsior examination is available. A score of at least 80% on a comprehensive written examination and/or demonstration of satisfactory ability in performance skills will be required. Credit may not be earned in a course in which the student is enrolled or for which he has earned credit. Only one attempt at credit by institutional examination will be permitted per course. A maximum of 75% of associate degree requirements or 50% of certificate requirements may be earned by institutional examination or other acceleration mechanisms. Evidence of proficiency in the subject is to be presented to the instructor of the course. If, in the opinion of the instructor, the student is eligible to take the examination, the student will proceed to the Business Office for payment of the non- refundable $20 per credit examination fee before taking the examination. The instructor will administer the exam, at an agreed upon time, and will assign a final grade. The completed form will be forwarded to the Director of Enrollment Services who will then inform the student in writing of the results of the examination and will record credit earned by institutional examination on the transcript, if appropriate. The following sections should be completed in sequence. Mr. Jones did not read the instructions on the Application or follow them. The instructions on the Application add certain requirements for obtaining credits by institutional examination not contained in Rule 7.710: the “examination” may be a “comprehensive written examination and/or demonstration of satisfactory ability in performance skills”; and no more than a “maximum of 75% of associate degree requirements or 50% of certificate requirements may be earned by institutional examination.” The first section to be completed on the Applications is a section containing a space for the student’s name and social security number, the course number and name, and the credit hours for the course. There is also a space for the student to list the “specific reasons why I wish to take a challenge examination . . . .” Finally, this section ends with a place for the student to date and sign the Application, noting that “[e]vidence of prior related experience is attached” and that, by the student’s signature, the student acknowledges that he or she has “read and understand[s] the criteria and procedure for credit by institutional examination.” The first section of the 13 Applications was signed by Mr. Jones on April 20, 21, or 22, 2004. The Applications were for 13 different courses totally 39 credit hours. All information written into this section, other than Mr. Jones’ signature, was already written on the Applications when presented to Mr. Jones for signature. No “specific reasons” why Mr. Jones wished to take a challenge examination in the courses was included on the 13 Applications and no “prior related experience” as attached to the Applications. Mr. Jones’ acknowledgement, by signing the Applications, that he had “read and understand[s] the criteria and procedure for credit by institutional examination” was false. The next section of the Applications to be “completed in sequence” is a section for the “Instructor” of the course to sign recommending the student for credit by institutional examination and agreeing to “administer a supplementary skills performance test.” All 13 of the Applications were signed by Mr. Welsh, Mr. Jones’ subordinate, and were dated the same day that Mr. Jones signed them, except for one, which was signed by Mr. Welsh the day after the date Mr. Jones had signed it. (Whether this section of the Applications was signed by Mr. Welsh in April, as it now appears, or were actually dated in February is questionable based upon a cursory review of College Exhibit 2). The next section of the Applications is a section for the “cashier’s validation.” This section is intended to be signed by a cashier of FKCC to acknowledge receipt of payment for the credit by institutional examination, along with the amount paid and the date. The section states in all capital letters, “TO BE VALIDATED BEFORE EXAMINATION DATE.” All 13 Applications were signed by the cashier on April 22, 2004. This date is after the date Mr. Welsh indicates the “examinations” took place, as discussed, infra. The next-to-the-last section of the Applications, which should have been executed after the Applications were instituted by the student, after the instructor had accepted the Applications, and after payment for the credits had been made and acknowledged, is a section to be completed by the instructor of the course verifying the following: I examined the above student in the indicated course on (date) . According to the standards for the award by credit by institutional examination, I do/do not (strike one) recommend the credit be awarded based on the student’s grade of . Documentation of the examination results is attached. All 13 Applications were signed by Mr. Welsh indicating that Mr. Jones had earned an “A” in each of the 13 courses and that the “examination” had been administered on February 20, 21, or 22, 2004, two months before Mr. Jones signed the Applications. None of the 13 Applications had “documentation of the examination results” attached to them. Mr. Welsh indicated on the Applications that the “examination” had been given two months before Mr. Jones signed the Applications, in complete disregard for the instructions on the Application and contrary to Rule 7.710. Finally, the last section on the Applications is for the signature of the Director of Enrollment Services. All 13 Applications are signed and dated April 22, 2004. The 13 courses for which Mr. Jones “applied” and was granted credit by institutional examination are Marine Diesel Engine Overhaul; 2 & 4 Cycle Outboard Repair and Maintenance; Marine Diesel Systems; Marine Engine Installation and Repower Procedures; Fiberglassing Theory; Applied Marine Electricity; Gas and Electric Welding; Basic Seamanship; Diesel Engine Testing and Troubleshooting Procedure; Marine Corrosion and Corrosion Prevention; Diesel Fuel Injection Systems; Marine Gearcases, Outdrives & Transmission Systems; and Marine Auxiliary Equipment Servicing. Of the 13 awarded courses, Mr. Jones had taught only six. Mr. Welsh had never taught any of the six courses taught by Mr. Jones. While Mr. Welsh had taught six other courses, Mr. Jones had not. One course, Gas and Electric Welding, had not been taught by Mr. Jones or Mr. Welsh. These facts, along with the fact that Mr. Welsh was Mr. Jones’ subordinate, raise serious questions about the appropriateness of the award of the 39 credits and an associate in science degree to Mr. Jones which any reasonable person should have been concerned about. As a result of the completion and submission of the 13 Applications, Mr. Jones was awarded 39 credit hours for the 13 courses and, as a consequence, was awarded an Associate in Science degree by FKCC on or about May 3, 2004. Mr. Jones acknowledges that he did not take any examination, written or by “demonstration of satisfactory ability in performance skills,” for any of the 13 courses for which he was given credit. In fact, Mr. Jones acknowledges and the evidence proved that all he did was to tell Mr. Welsh about his need to obtain a degree and sign the 13 Applications. Despite all the indications to the contrary, Mr. Jones simply followed Mr. Welsh’s directions, signing whatever documents Mr. Welsh provided to him, purportedly because “he knew of my abilities and I could pass the examination if he took the time to do it.” Volume I, Page 93, Lines 20-21, Transcript. Scholarship Funding for the 13 Applications. In order to pay for the courses for which credit was awarded pursuant to the 13 Applications, Mr. Jones applied for employee/dependent scholarship aid. While employee/dependent scholarship aid is available for the payment of tuition, it is not intended for use in paying for the $20.00 application fee for credit by institutional examination. Employee/dependent scholarship aid is also limited to 12 hours per term and 24 hours per year. Mr. Jones completed a Scholarship Aid Request for the 39 credit hours by institutional examination he was awarded. The funds were approved and used to fund the costs of the 39 hours of credit. As with the award of the 39 credits by institutional examination, at no time did Mr. Jones inquire as to the appropriateness or legality of using scholarship aid to fund the award of his Associate in Science degree. FKCC’s Investigation. On or about August 1, 2007, Dr. Landesberg-Boyle, who had served some months as president-designee of FKCC, was hired by the FKCC Board of Trustees (hereinafter referred to as the “Board”), as FKCC president. One of Dr. Landesberg-Boyle’s first official acts was to create the position of provost and to fill that position with Clifford Colman. Mr. Colman possesses extensive experience in academia. Proposed findings concerning Mr. Colman’s background are accurately reflected on page 6 of Florida Keys Community College’s Brief and are hereby incorporated into this Recommended Order by reference. Among Mr. Colman’s duties as the provost, the FKCC’s chief academic officer, was the responsibility to ensure that FKCC faculty were possessed of the requisite credentials required by FKCC and the State of Florida. In late September or early October,2007 a comment was made to Mr. Colman during a conversation he was having with the then Director of Marine Engineering and another faculty member about Mr. Jones’ credentials, or purported lack thereof. One of the individuals said in effect that Mr. Jones did not posses a degree in his discipline and that the rumor around the campus was essentially that he had “pulled a fast one on the college and had gotten a degree without doing any work for it.” In reasonable response to these comments, Mr. Colman began an investigation. He first went to the records office and reviewed Mr. Jones’ academic transcript. He noticed the credit for the 13 courses totaling 39 hours of credit awarded to Mr. Jones. Mr. Colman was alarmed because, in his experience, a full-time student would normally require one and a half academic years to complete that much course work. Mr. Jones had been awarded the 39 credits for a single academic term. Mr. Colman was also concerned because the 39 hours of credit, according to the transcript, had been awarded by “Institutional” examination. Therefore, Mr. Colman next retrieved the supporting documentation for the courses, including the 13 Applications. Concerned about the amount of credits awarded, the fact that they were all awarded in a short period of time, the fact that Mr. Jones had been given an “A” in each course, and the fact that Mr. Welsh was Mr. Jones’ subordinate, Mr. Colman investigated further. Mr. Colman next spoke on more than one occasion by telephone with Mr. Welsh, who was no longer employed at FKCC or living in the area. Those conversations took place in October 2007. Dr. Landesberg-Boyle participated in one of the conversations. Although the accuracy of what Mr. Welsh told Mr. Colman and Dr. Landesberg-Boyle is hearsay and, therefore, is not reported in this Recommended Order nor relied upon by the undersigned in the ultimate decisions in this case, what Mr. Welsh said about the events gave Dr. Landesberg-Boyle reasonable cause to take the actions she took in this matter. After completing his investigation, Mr. Colman and the Board attorney, William “Buck” DeVane, met with Mr. Jones. Although not given any notice of what the meeting was for, Mr. Jones was informed of Mr. Colman’s findings and given an opportunity to speak to the findings. Mr. Jones was then told that he could resign his position or, if chose not to, FKCC would pursue termination proceedings. Mr. Jones requested and was given a few days to consider his options. Ultimately, Mr. Jones declined the opportunity to resign. While Mr. Jones complained at hearing about his perceived lack of opportunity to respond to Mr. Colman’s findings, he has been afforded his complete due process rights through this proceeding. Following Mr. Jones’ decision not to resign, Mr. Colman recommended that Dr. Landesberg-Boyle take action to terminate Mr. Jones’ employment with FKCC. Dr. Landesberg-Boyle’s Decision and Recommendation to the Board, the Board’s Decision, and Mr. Jones’ Request for Hearing. Dr. Landesberg-Boyle wrote a letter dated January 3, 2008, to Mr. Jones informing him that she was “directing Enrollment Services to remove [the associate in science] degree from your academic transcript.” She also told Mr. Jones that she intended to recommend to the Board at their meeting on January 26, 2008, that his position with FKCC be terminated. Finally, Dr. Landesberg-Boyle advised Mr. Jones that he had the right to a hearing pursuant to Chapter 120, Florida Statutes. Although she did not specifically inform Mr. Jones of his right to challenge her decision to direct the removal of his associate in science degree from his transcript, he has been afforded that opportunity through this proceeding. On January 5, 2008, Dr. Landesberg-Boyle instructed Cheryl Malsheimer, Director Enrollment Services, by memorandum, to “remove the 39 credits by exam on Mr. Tim Jones’ FKCC transcript that were posted in April 2004. ” On January 26, 2008, the Board accepted the recommendation to terminate Mr. Jones’ employment with FKCC. Mr. Jones exercised his right to challenge both actions: the removal of the 39 credits by exam and his Associate in Science degree from his transcript and the decision of the Board to terminate his employment with FKCC. By the conduct of this proceeding, Mr. Jones was afforded his due process rights pursuant to Chapter 120, Florida Statutes, as to both the decision of Dr. Landesberg-Boyle to remove the credits and degree from his transcript and the decision of the Board to terminate his employment. Good Cause for Dr. Landesberg-Boyle’s Decision. Based upon the foregoing, it is clear that the action of Dr. Landesberg-Boyle in ordering the removal of the 39 credits by institutional examination and the Associate in Science degree from Mr. Jones’ transcript was done with good cause. Mr. Jones’ suggestion that he simply did what he was instructed to do is simply not reasonable for any number of reasons: The person who “awarded” him the credits was his subordinate; Being awarded a degree for simply signing your name to the 13 Applications, without reading the forms or asking any questions was totally unreasonable for any college instructor and especially the head of the department; Accepting an award of credits for courses for which Mr. Jones had no experience and had not taught was unreasonable; and Accepting an award of credits for courses for which Mr. Jones had some expertise from an individual who did not possess the same expertise was unreasonable. Good Cause for the Board’s Decision. Based upon the foregoing, it is also clear that the decision of the Board to terminate Mr. Jones was made with good cause. Regardless of whether Mr. Jones possesses the skills and ability to teach marine engineering, his actions in accepting 39 credits and an associate in science degree by simply signing the 13 Applications and by inappropriately using employee/dependent financial aid to pay for those credits support the Board’s decision. Whether, as FKCC suggests, Mr. Jones was part of a fraudulent scheme to protect his job, or he simply followed what he was told, his actions were inconsistent with what the Board may reasonably expect and demand from instructional staff at FKCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Florida Keys Community College enter a final order finding that there is good cause to eliminate 39 credits awarded to Timothy Jones by institutional examination, and the associate in science degree awarded as a consequence thereof, and terminating Mr. Jones from employment with Florida Keys Community College. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2009. COPIES FURNISHED: Samuel J. Kaufman, Esquire Law Offices of Samuel J. Kaufman, P.A. 1509 Josephine Street, Suite 1 Key West, Florida 33040 Robert L. Norton, Esquire Luke C. Savage, Esquire Allen, Norton & Blue, P.A. 121 Majorca Avenue, Suite 300 Coral Gables, Florida 33134 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
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 Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET"). The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties. Petitioner is not a graduate of the State University System. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement and further finding that Petitioner's educational background does not meet the requirements necessary to take the examination to become licensed in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973 Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40, .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30, 5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Carlos Martinez Mallen 33C Venetian Way #66 Miami Beach, Florida 33139 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
