The Issue The central issue in this proceeding is whether the Department of Banking and Finance's (Agency) action relating to an intended contract award was arbitrary, illegal, fraudulent or dishonest. Petitioner alleges that the Institute for Instructional Research and Practice of the University of South Florida (Institute) has no statutory authority to perform the contract. The intervenor, Hewitt, Olson & Associates, Inc., joins this allegation. By stipulation at hearing, Petitioner limited its protest, and the issues, to that allegation.
Findings Of Fact The Department of Banking and Finance is the agency with the statutory responsibility to administer and enforce laws related to mortgage brokerage and mortgage lending. It licenses persons eligible to practice in those fields. Eligibility is based, in part, on education and experience as well as on a written test. While the agency formerly administered the tests, it reached the conclusion that it needed a more extensive test; it needed to know whether items were valid and it needed a study guide for people who intended to take the test. For those reasons, it sought outside expertise in its RFP no. BF-12/94-95. The Department received timely responses from Petitioner and the two intervenors in this proceeding. The cover of the bound proposal from the University of South Florida states that the proposal is submitted by the Institute for Instructional Research and Practice, University of South Florida, College of Education, Carolyn D. Lavely, Ph.D., Director. Within the cover is a copy of memorandum of delegation of authority to execute research contracts and grants, by Betty Castor, President of the University of South Florida. There are also separate submittal letters executed by John C. Kuttas, Senior Contracts and Grants Administrator, Division of Sponsored Research at the University, and by Dr. Lavely and Roslyn Heath, Assistant Director, Division of Sponsored Research at the University. (Respondent's Exhibit #3). The services described in the proposal are to be performed by the Institute of Instructional Research and Practice at the University of South Florida. The Institute describes its qualifications on pages 32 and 33 of its proposal: The Institute for Instructional Research and Practice (the Institute) was established in 1984 by the Florida Legislature. Originally respon- sible for research, development, and validation of instruments for measuring subject area knowledge and teacher effectiveness, the Instituted has developed and validated more than 60 examinations for the state's master teacher and teacher certification programs. Since its inception, the Institute has expanded its range of testing activities beyond assessments of teachers to include assessments of students, school admini- strators, and non educators who require testing for professional licensure. The Institute's staff of 35 persons includes statisticians, psychometricians, computer specialists, and editorial and clerical support personnel trained in the provision of products and services directly related to all phases of test development, administration, and statistical analysis. Experienced in all aspects of testing, Institute staff have been actively involved in drafting legislation; setting standards; performing task analyses; developing, validating, and pilot testing specifications and examinations; administering examinations; scoring, analyzing, and reporting the results of a variety of tests for the State of Florida; and conducting related research. Institute personnel manage a large-scale test development operation, conduct research, and document and produce standardized tests. The Institute is now the third largest producer of teacher exams in the United States. (emphasis in original) The University of South Florida has contracted for similar services with several state agencies including the Department of Insurance, the Department of Education, and the Department of Business and Professional Regulation. The Institute provides the testing services and uses the contracts to further its own research and expertise, to collect and analyze data and to train graduate students in the College of Education. RFP no. BF-12/94-95 is not a request for research services and is not a request for a research contract. The services under the contract have research and training components. The Institute does research related to item analysis; it accumulates data as a result of administering the exams and it analyzes and researches the data. Dr. Lavely and other Institute staff publish in research journals and make presentations to research associations based on the experience of the Institute in its testing contracts. Graduate students are involved in the training and research aspects. Thus, it is clear that even if the contracting agency is not receiving a direct research "product", the Institute and the University are deriving a research benefit from the services under the contract. Since its creation by statute in 1984, the Institute's enabling legislation has not been amended. It received an initial appropriation of $750,000 from the legislature, and no appropriation since then. Payments for all contractual services provided by the Institute are routed through the University of South Florida's Division of Sponsored Research. The contract to be awarded from the agency's RFP No. BF-12/94-95 would be considered a "fixed cost contract" by the Institute. Any contracts performed by the Institute are entered into by the University of South Florida through the Division of Sponsored Research.
Conclusions (2)(a) As no petition for hearing has been filed, the right to a hearing has been waived. See Fla. Admin. Code R. 28-5.111. (b) The Department has substantial doubt as to the correctness of the conclusions of the Hearing Officer as expressed in the Recommended Order but declines to rule for the reasons set forth herein. (3)(a) None of the parties to this proceeding have alleged that this agency has acted impermissibly in the bid review process. It is apparent, however, that the process can be improved. In a typical bid proceeding, agency employees draft the bid request, review the bids, and make an initial determination regarding which bid is the lowest responsible bid. If a protest is filed which fails to allege disputed issues of material fact, an employee of this Department may be assigned to act as hearing officer. After the hearing is conducted, the agency head or the designee of the agency head then renders a determination on the bid protest. Accordingly, in the absence of any disputed issues of material fact, the bid process can be conducted solely by personnel of this agency. Such a procedure can hardly command the confidence of the public which rightly deserves an open government and adequate assurances that the bidding process is effectuated without bias or favoritism of any kind. In cases where there are disputed issues of material fact, the Hearing Officer of the Division of Administrative Hearings is limited to deciding whether the agency acted fraudulently, illegally, arbitrarily, or dishonestly. Accordingly, even in instances where a person independent from the agency reviews the bid process, such person's input is limited. Therefore, it seems apparent that more should be done to give the public and persons who wish to do business with the State of Florida confidence that tax dollars are being spent in the most appropriate manner. Based upon the foregoing, efforts must be made to improve the process so that the citizens of the state can be assured that there is adequate oversight in the bid process. There is the additional concern that ways must be found to increase the involvement of the mortgage brokerage industry in the testing process. The present process proposes that the state, or an agent of the state, develop the test, administer the test, score the test, and post the results of the test with little or no participation from the mortgage brokerage industry. While there is a legitimate function for state government in the testing process, efforts should be made to include the mortgage brokerage industry in the process. It seems apparent that implementing the above-stated principles will require the input of both the private and public sector and may also necessitate the implementation of statutory amendments. Based upon the foregoing, it is in the best interest of the state not to award the contract to any person at this time pending review of the bid process especially in view of the fact that the Department is able to administer the test on at least a temporary basis while this matter is resolved.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Department of Banking and Finance enter its final order awarding the contract in RFP BF-12/94- 95 to the University of South Florida. DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Leon County, Florida. MARY W. CLARK, 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 July, 1995. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire William B. Graham, Esquire 300 East Park Avenue Tallahassee, Florida 32301 Henry W. Lavandera, Esquire University of South Florida ADM -250 4202 East Fowler Avenue Tampa, Florida 33620-6250 Jack Silver, Esquire 439 Northeast Seventh Avenue Fort Myers, Florida 33301-1207 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue Whether the Respondent should be terminated from her employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Miami-Dade County School Board is responsible for operating, controlling, and supervising all public schools in the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Klumpjan is employed by the School Board as a certified occupational therapist assistant. She has worked for the School Board in this position for approximately 17 years, first as an employee of an outside agency under contract with the School Board and, since 1988, as the School Board's direct employee. Certified occupational therapist assistants are classified by the School Board as educational support employees, and the terms of Ms. Klumpjan's employment are governed by the contract between Dade County Public Schools and the United Teachers of Dade. Occupational therapy is provided in the Miami-Dade County public schools to children who have been referred for the service by a physician. The goal of the therapy is to improve fine motor and functional living skills and, generally, to assist students in improving their ability to access education. When a student is referred for occupational therapy, the registered occupational therapist assigned to the student's school consults with the student's teachers and other professionals regarding the student's needs, evaluates the student, and develops an individualized occupational therapy program for the student. If the student is in the exceptional student education program, the occupational therapy program becomes part of the student's individualized educational program. Certified occupational therapist assistants carry out the treatment programs developed by registered occupational therapists, who supervise the work of the certified occupational therapist assistants. The formal job description for a certified occupational therapist assistant in the Miami-Dade County school system provides in pertinent part: BASIC OBJECTIVES The Certified Occupational Therapist Assistant (COTA) is responsible for the application of occupational therapist procedures under the direction of a Registered Occupational Therapist whose license in Florida is in good standing. The occupational therapist assistant must also be responsible for carrying out the responsibilities set forth by the supervisory [sic] of the physical and occupational therapist program. The occupational therapist assistant is responsible to the managing registered occupational therapist. JOB TASKS/RESPONSIBILITIES Implements treatment programs appropriate to the student's specific needs, as designated by the managing therapist. Meets periodically with managing occupational therapist for the purpose of reviewing the individual student's status. Documents any change in student status, treatment program, family visits, consultation with other health personnel. Established and maintains appropriate working relationships with school staff, parents, and health care personnel. Consults with managing occupational therapist prior to contacting the student's physician regarding problems and/or unusual changes in a student's program. Coordinates and schedules all treatment sessions for established students. Coordinates and schedules all treatment sessions for established students.[sic] Participates in DCPS inservice programs. Observes medical ethics. Conforms to DCPS policies and procedures. Assists in orientation and training of personnel new to the department. Maintains the therapy-area equipment by sanitizing and cleaning mats and other materials and equipment. Coordinates and/or assists in the preparation of materials for student use. Throughout the years she worked in the Miami-Dade County public school system, Ms. Klumpjan was considered a competent occupational therapist who worked well with the children in her care. Her job performance evaluations consistently rated her work as satisfactory. Nonetheless, since 1988, Ms. Klumpjan has worked at several schools in the Miami-Dade County public school system, having been transferred at the end of the 1989, 1990, 1991, 1992, and 1993 school years. Each time she was transferred, Louise Schmitt, one of the coordinators of the Miami-Dade County public school system's physical and occupational therapy program, discussed with her the reasons for the transfer, specifically, her inability to get along with her fellow therapists and other education professionals with whom she worked. Ms. Klumpjan was transferred to Arcola Lake Elementary School in July 1993. The students at Arcola Lake Elementary School are all in the exceptional student education program and have individualized educational programs. In meeting the needs of these students, the school staff, including the therapists and therapist assistants (referred to herein collectively as "co-workers"), work together as a team to provide the services necessary for the students to access education. At Arcola Lake Elementary School, Ms. Klumpjan and her co-workers also worked in close physical proximity with one another. In the opinion of a number of her co-workers, including her direct supervisor, Ms. Klumpjan's attitude and behavior made working with her very difficult. She was defensive and combative with her direct supervisor and with her co-workers, who were intimidated and threatened by her and avoided engaging her in conversation about either work-related or general subjects. Ms. Klumpjan constantly made negative comments regarding the actions of her co-workers and her supervisors, as well as about school procedures and policies. Ms. Klumpjan continually complained that no one would sit down and "hear her out" about her concerns. For several years, but especially in the months immediately prior to March 1997, Ms. Klumpjan's co-workers observed her become increasingly quick to anger about minor incidents, exhibit increasingly paranoid behavior, and express increasingly paranoid thoughts, including her often-stated conviction that there is a conspiracy against her among her co-workers, who she believes are agents of the FBI and the CIA. Her co-workers also observed her become more unreasonable, defensive, combative, and vindictive whenever anyone questioned her about her work or her ideas. Ms. Klumpjan talked incessantly about religion and also articulated increasingly bizarre thoughts, including her belief that certain school personnel were practicing voodoo and were engaged in spiritual warfare against persons in the school. When her ideas were challenged by co-workers, Ms. Klumpjan invariably insisted that her perception of reality was the correct one. On several occasions, both Ms. Klumpjan's direct supervisor and her co-workers were aware that she did not follow written occupational therapy programs developed by her supervisor or her supervisor's specific instructions regarding the therapy to be given to particular students. Nonetheless, Ms. Klumpjan's supervisor found it difficult to make any adverse comments or to criticize her work because Ms. Klumpjan did not respond reasonably; consequently, her supervisor simply avoided confronting Ms. Klumpjan, even though the supervisor recognized that her avoidance could impact negatively on the care given the students. Other therapists, therapist assistants, and teachers avoided consulting with Ms. Klumpjan regarding the care to be given students. Ms. Klumpjan's co-workers became particularly concerned when she discussed an incident in which a person in Broward County had gone to the office of his former employer and killed several of his former co-workers. Ms. Klumpjan stated that she understood why a person would do such a thing, and she attributed the motive for the shootings to the failure of people to listen to the killer's concerns. Because this was one of Ms. Klumpjan's frequent complaints about her supervisors and because of her increasingly bizarre behavior, Ms. Klumpjan's co-workers began to fear for their safety. In March 1997, several of Ms. Klumpjan's co-workers went to Louise Schmitt, one of the two coordinators of the Miami- Dade County public school system's physical and occupational therapy program, and told her that they found it impossible to work with Ms. Klumpjan and that they felt that her inappropriate behavior was becoming more pronounced, creating a great deal of tension among the staff at Arcola Lake Elementary School and causing them to fear for their safety. Dr. Fishman asked them to write letters to her describing the behaviors that caused them concern. When Ms. Schmitt reviewed the letters she received in response to this request, she contacted the School Board's Office of Professional Standards. On March 13, 1997, Ms. Klumpjan was relieved of her duties at Arcola Lake Elementary School and told to report for an alternate work assignment at the Region I administrative office. Thomasina O'Donnell, Director of the School Board's Office of Professional Standards, scheduled a Conference-for-the- Record for March 20, 1997. At the conference, the letters and concerns of Ms. Klumpjan's co-workers and supervisors were reviewed, and Ms. Klumpjan's fitness for duty was discussed. While not specifically denying the statements and behavior attributed to her in the letters, Ms. Klumpjan stated that her statements and behavior were "blown out of proportion" by her co-workers. At the March 20 conference, Ms. Klumpjan was given a list of doctors approved by the School Board and asked to select one to conduct an evaluation of her fitness to continue work. Her March 13, 1997, alternate work assignment to the Region I office was ratified, and Ms. Klumpjan was directed not to contact anyone at Arcola Lake Elementary School or anyone who had written a letter outlining their concerns about her. Finally, Ms. Klumpjan was given a supervisor's referral to the School Board's Employee Assistance Program. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any non-compliance with the stipulated activities would compel District disciplinary measures to include suspension, demotion, or dismissal." Ms. Klumpjan chose not to participate in the Employee Assistance Program. However, on April 7, 1997, she was evaluated by Gary L. Fishman, D.O., a psychiatrist who has done "Fitness to Return to Work" evaluations for the School Board for the past ten years. Dr. Fishman spent approximately two hours interviewing Ms. Klumpjan and concluded that she suffers from a major psychiatric disorder evidenced by pronounced paranoid delusional symptoms. In his report, Dr. Fishman described Ms. Klumpjan as appearing "fragile, alone and isolated" and observed that she appeared to be out of touch with reality and completely unaware of the negative effect her comments and behavior had on her co-workers. In Dr. Fishman's opinion, Ms. Klumpjan was not capable of carrying out several of the job responsibilities assigned to certified occupational therapist assistants. Specifically, Dr. Fishman felt that, because of her problems dealing with others, her disturbed thinking patterns, and her impaired judgment, Ms. Klumpjan could not successfully consult with the managing occupational therapist, she could not establish and maintain appropriate working relationships with school staff and others, and she could not assist in training new personnel. Dr. Fishman counselled against allowing Ms. Klumpjan to resume her duties as a certified occupational therapist assistant until she received adequate medical and psychiatric care. Dr. Fishman recommended that Ms. Klumpjan receive a comprehensive medical examination from the physician of her choice, preferably an internal medicine specialist; that she have a complete psychological battery and profile prepared; and that she be referred for psychotherapy. A second Conference-for-the-Record was held on April 16, 1997, in order to review Dr. Fishman's report. Ms. Klumpjan was informed that she would not be allowed to return to work until she had met three conditions, which were essentially the recommendations made by Dr. Fishman: First, Ms. Klumpjan was told to have a comprehensive medical examination; second, she was told to obtain a complete psychological battery; and third, she was told to participate in a psychotherapy program. Ms. Klumpjan was informed that she could return to work only when cleared by Dr. Fishman, and she was again warned not to contact anyone at Arcola Lake Elementary School. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance with the stipulated conditions would result in the recision [sic] of site disciplinary action and compel District disciplinary measures to include suspension, demotion, or dismissal." Ms. Klumpjan was absent without leave from her alternate work assignment beginning on May 16, 1997. Ms. Klumpjan was examined on June 25, 1997, by Larry Harmon, Ph.D., a clinical psychologist who works with the School Board's Employee Assistance Program and who was asked to evaluate Ms. Klumpjan's fitness to return to work. Dr. Harmon diagnosed Ms. Klumpjan with paranoid personality disorder; this diagnosis was based on his clinical interview, the results of Ms. Klumpjan's mental status exam, corroborative information, and the results of psychological testing. Although Ms. Klumpjan tested within the normal range on the psychological tests, Dr. Harmon is of the opinion that the results on several of the tests, including the Minnesota Multiphasic Personality-2, the Millon Clinical Multiaxial Inventory-III, and the Beck Depression Inventory, are not valid indicators of her true psychological condition. Dr. Harmon is particularly concerned about Ms. Klumpjan's very deep-seated delusions of persecution, together with her unshakable conviction that her delusions are true and accurately reflect reality. In his report, which is dated July 28, 1997, Dr. Harmon noted that Ms. Klumpjan refused to acknowledge that her behavior and comments in the workplace were inappropriate and would not agree to refrain from voicing her thoughts and suspicions to her co-workers, insisting that she has the right to speak the truth. Ms. Klumpjan rejected any suggestion that she should change her behavior at work and steadfastly attributed the "problem" to her co-workers. Consequently, Dr. Harmon predicted that the poor interpersonal work relationships would continue and, most likely, worsen. Dr. Harmon found that, even though Ms. Klumpjan is paranoid, she has no history of violence and is unlikely to pose a threat to the health and safety of the school staff and students. In his opinion, however, Ms. Klumpjan is unfit for duty because her symptoms of paranoia impair her ability to maintain the interpersonal work relationships necessary to carry out those job responsibilities of a certified occupational therapist assistant that require cooperation and working with others. Dr. Harmon also noted in his report that Ms. Klumpjan adamantly refused to consider seeking psychotherapeutic treatment; in his opinion, Ms. Klumpjan's symptoms will worsen unless she receives such treatment. Ms. Klumpjan was examined by her physician on July 1 and 2, 1997, and the results of the examination, laboratory work, and EKG were sent to the School Board's Office of Professional Standards. A Conference-for-the-Record was held on August 19, 1997, for the purpose of addressing Ms. Klumpjan's medical fitness to perform her assigned duties and her future employment in the Miami-Dade County public school system. At the conference, Ms. Klumpjan was again advised that services were available from the School Board's support referral agency, the Employee Assistance Program. She was given the opportunity to resign her position with the Miami-Dade County public school system, but she was directed to arrange for medical leave if she chose not to resign, with the caveat that she must apply for leave by September 19, 1997, or face an employment action for abandonment of position. Ms. Klumpjan was encouraged to seek psychological treatment and was advised that she would be considered for re-employment only when she had successfully completed treatment and received a medical clearance from Dr. Harmon. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance, with the stipulated condition, would result in District disciplinary measures to include dismissal." In a memorandum dated October 15, 1997, entitled "Employment Intention," Dr. O'Donnell notified Ms. Klumpjan that, because she had been absent from her employment since May 16, 1997, she must notify her worksite immediately regarding her employment intentions. Dr. O'Donnell also directed Ms. Klumpjan to implement one of four options: She could comply with the conditions of employment imposed at the August 19, 1997, Conference-for-the-Record; she could notify the Office of Professional Standards of the date she intended to return to work; she could resign from her employment with the Miami-Dade County public school system; or she could initiate the retirement process. Ms. Klumpjan did not respond to this memorandum and, in a letter dated October 27, 1997, she was informed that she had been absent from her employment with the Miami-Dade County public school system without authorized leave. She was further advised that the School Board would take action to dismiss her from her employment for willful neglect of duty and that, if she did not request a review of the facts relating to her termination within 10 days of the date she received the letter, the matter would be submitted to the School Board for final action. In a letter dated November 7, 1997, to Dr. Joyce Annunziata, Senior Executive Director of the Office of Professional Standards, Ms. Klumpjan stated that she had not been willfully absent from her duties but was absent because of actions taken against her by the Office of Professional Standards. She explained that she was abruptly removed from her duties at Arcola Lake Elementary School and told to report for work to Ms. Martha Boden. Ms. Klumpjan stated that she was willing to return to her duties as a certified occupational therapist assistant on November 10, 1997. Nothing further was heard from Ms. Klumpjan, and, at its January 14, 1998, meeting, the School Board suspended her from employment with the school system, without pay. Ms. Klumpjan had not, as of the final hearing, participated in psychotherapy, resigned her position, or applied for medical leave. The evidence presented by the School Board is sufficient to establish that Ms. Klumpjan committed gross insubordination, that she committed misconduct in office, that she is incompetent because of incapacity, and that she was willfully absent from duty without leave. These violations are sufficient to constitute just cause for the termination of her employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order Sustaining Marilyn L. Klumpjan's suspension without pay, Terminating the employment of Marilyn L. Klumpjan for just cause, and Dismissing Count IV of the Notice of Specific Charges dated February 9, 1998. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998.
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent on the basis of her failure to timely comply with continuing education requirements established by Section 626.2815, Florida Statutes.
Findings Of Fact The Respondent is currently licensed by the Florida Department of Insurance ("Department") as a General Lines (2-20) Agent. During the period from August 1, 1995, through July 31, 1997, the Respondent was licensed as a General Lines (2-20) Agent and as a Life, Health, and Variable Annuity (2-15) Agent. At all times material to this case, insurance agents licensed in Florida have been required to complete continuing education courses every two years. Licensed insurance agents can meet their continuing education requirements by attending seminars, taking classroom courses, or taking self-study courses. During the period from August 1, 1995, through July 31, 1997, the Respondent was required to complete 28 hours of continuing education courses. /3 The required courses could be taken and completed at any time during that two-year period. At all times material, the Respondent has been aware of the continuing education requirements applicable to licensed insurance agents. The Respondent resides in Key Largo, Florida, and has lived at the same address for at least 10 years. Miami, Florida, is about 60 miles from Key Largo. Key West is about 100 miles from Key Largo. During the period from August 1, 1995, through July 31, 1997, there were 11 continuing education courses offered in Key largo. During that same period there were 73 continuing education courses offered in Monroe County. During that same period there were approximately 3,000 continuing education courses offered in Dade County. The Respondent waited until July 16, 1997, which was 15 days before the end of her two-year continuing education deadline, before taking any action to comply with the continuing education requirements. On that day she ordered two self-study courses from a course provider named Noble. If an insurance agent chooses a self-study course to fulfill the continuing education requirements, the course is not considered to be completed until the agent has taken a monitored examination on the course material and has achieved a score of at least 70 percent. The Respondent finished her study of the course materials she bought from Noble by the end of July 1997, but she did not take and pass the examinations on those materials until the end of August 1997, which was three or four weeks past the end of her compliance deadline. In July of 1997, the Respondent was nursing an infant child. Although Noble had a testing site in Miami, the Respondent did not want to go to Miami to take the examinations for her self-study courses, because a trip to Miami would interfere with nursing her child. The Respondent waited until the end of August, because by that time Noble had opened a testing site in Key Largo. All insurance agents who failed to comply with the continuing education requirements for the period ending July 31, 1997, were sent a Preliminary Notice of Non-Compliance. All agents who did not respond to the Preliminary Notice of Non- Compliance were sent a Final Notice of Non-compliance. Both preliminary and final notices were sent to the Respondent. The Department initiated disciplinary action against all insurance agents who were found to have failed to comply with the continuing education requirements. The Department offered each of the non-compliant agents an opportunity to settle the disciplinary actions by payment of an administrative fine in the amount of $250.00. Numerous insurance agents settled on those terms. In one case, such a disciplinary action was resolved by a stipulated six-month license suspension.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a final order concluding that the Respondent is guilty of failing to comply with statutory and rule provisions regarding continuing education, and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1999.
Findings Of Fact Respondent's name was one of about three hundred on a list of public accountants certified in Florida for whom, at the close of the initial period following institution of the requirement, petitioner had no record of the taking of continuing professional education courses or of the passing of a written professional examination. As a result, petitioner mailed respondent a form letter advising him of the situation, in February of 1977. Receiving no reply, petitioner mailed a second letter to respondent on April 28, 1977, stating that he "ha[d] failed to comply with F.S. 473.111(4) and Rule 21A-15" and that his suspension had been recommended to petitioner for that reason. On May 11, 1977, respondent visited petitioner's offices in Gainesville and spoke to George Thomas McCall, at the time petitioner's coordinator for continuing professional education. Mr. McCall gave respondent three reporting forms on which respondent proceeded, without reference to any notes, to list various titles in the column styled "Name of Course or Program," filling in corresponding blanks in columns for the dates of the courses, for their sponsors and for "Credit Hours Claimed." Petitioner's exhibit No. 1. Douglas H. Thompson, Jr., petitioner's executive director, asked Jean P. Finegold, Mr. McCall's successor, to attempt to verify that respondent had taken the continuing professional education courses he had listed. Ms. Finegold wrote respondent requesting documentation. Petitioner sent this letter by certified mail, but it was returned unclaimed. Ms. Finegold also wrote each of the four institutions listed by respondent as sponsors of continuing professional education courses that he had taken. The United States Department of Labor, listed by respondent as the sponsor of 48 hours of course work he had taken in the auditing and accounting category, never replied to Ms. Finegold's inquiry. Because respondent had indicated, on the reporting form for 1974, that he took courses named "Estate Planning" and "Banking" sponsored by the Florida Institute of Certified Public Accountants (FICPA), Ms. Finegold wrote FICPA asking, inter alia, for verification of respondent's attendance at those courses. Respondent listed no other courses sponsored by FICPA on any of the reporting forms. Under the supervision of FICPA's assistant Director, John Scharbaugh, Vicki Ware researched the FICPA's records without finding the course names "Banking" or "Estate Planning." Later, after an extended telephone conversation between respondent and Mr. Scharbaugh, the FICPA verified that respondent had attended "Income Taxation of Estates and Trusts" on January 10, 1974; Basic Concepts in Estate Planning" on January 11, 1974; "Workshop on Fiduciary Income Tax Returns" on December 14, 1973; "Seminar on Bank Audits, Accounting, Taxes and Regulations" (Seminar) on November 16, 1973; and another course on May 17 and 18, 1973. The three more recent courses "each qualify for eight hours of other CPE credit," composite exhibit No. 8, deposition of Jean P. Finegold, as did the seminar. The other course "Management Advisory Services Conference" is the course respondent referred to on his 1974 reporting form as "Computer Advisory," mistakenly indicating sponsorship by Florida State University rather than by the FICPA. In response to Ms. Finegold's inquiry, the American Institute of Certified Public Accountants (AICPA) indicated that the AICPA had offered no courses entitled "Capital Investments--Long Term Debt," "Tax Reform Act of 1975" or "Tax Course," and Rex B. Cruse, Jr., director of the Continuing Professional Education Division of the AICPA, executed an affidavit to that effect. Composite exhibit No. 7, deposition of Jean P. Finegold. Respondent had indicated on his 1974 and 1976 reporting forms that he had taken courses with such names, sponsored by the AICPA. A subsequent search of the AICPA's bad debt file revealed that respondent had ordered self-study materials for courses named "Capital Structure and Long-Term Objectives," "Ins and Outs of IRS Practice and Procedures" and "Tax Reduction Act of 1975," but respondent "did not officially complete the courses by returning examinations. . .for grading." Composite exhibit No. 6, deposition of Jean P. Finegold. Otha L. Brandon, a certified public accountant in Memphis, Tennessee, first engaged respondent's services in 1975. On four or five occasions thereafter, respondent was in Memphis for orientation and instruction in auditing certain types of accounts, including assignments from the Environmental Protection Agency (EPA). Toward the end of 1976, Mr. Brandon entered into a contract with the EPA to audit construction grants to certain municipalities, including eight Florida cities. He hired respondent to perform the Florida audits. On January 3, 1977, Mr. Brendon wrote respondent directing him to go ahead with the work. At the time, Mr. Brandon contemplated completing the job in mid-February, thinking he would send additional manpower to Florida to assist respondent. Unassisted, respondent made submissions to Mr. Brandon on the last of the eight cities in July or August of 1977. Mr. Brandon allocated approximately nine thousand dollars ($9,000.00) to the Florida portion of the project. Upon receipt of respondent's work, people in Mr. Brandon's office revised the reports to make them conform to EPA regulations and directives. This was taken into account when Mr. Brandon paid respondent in excess of seven thousand two hundred dollars ($7,200.00) for his services. Respondent has been a certified public accountant in Florida since 1972.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's certificate for three (3) years. DONE and ENTERED this 9th day of February, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1979. COPIES FURNISHED: James S. Quincey, Esquire 226 South Main Street Gainesville, Florida 32602 Thomas B. Calhoun, Esquire 3656 Shamrock Way Tallahassee, Florida 32308
The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Notice of Reasons.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is an applicant for a Florida Educator's Certificate. On April 17, 2004, at the Kendall campus of Miami-Dade Community College (College), Petitioner sat for the general knowledge portion of the certification examination (Test), which included an essay question. In advance of the Test, Petitioner was informed in writing of, among other things, the following: In its continuing effort to assure fairness and equity in examination administration conditions, the Florida Department of Education is putting into written form those activities that have been, and continue to be, regarded as cheating by, or on behalf of, an examinee. The specific items represent cheating activities encountered throughout the history of the Department's assessment programs, but do not preclude the Department from appropriate action in cases of cheating that do not fall under a specific item. These guidelines are applicable to the Florida Teacher Certification Examinations program . . . . Section 1 defines those behaviors that constitute cheating. Section 2 lists materials, equipment and other aids that examinees are prohibited from using during the examination. . . . Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: * * * c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. * * * Section 2: Prohibited Aids The following aids are prohibited during examination administration: . . . papers of any kind, including scratch paper; . . . * * * Annette Lorenzo, a College employee, was the "room supervisor" in the room in which Petitioner took the Test. Ms. Lorenzo was assisted by another College employee, Gladys Manrique, "who was "working as a proctor" in the room. When Petitioner arrived in the room the morning of the Test, she was checked in by Ms. Lorenzo, who assigned her a seat near the front of the room. Upon being told of her seat assignment, Petitioner "pointed to the last seat of the last row" and asked if she could sit there instead. Ms. Lorenzo "said, 'Okay, no problem,' and [Petitioner] went and sat down in that seat." After "checking everybody in," Ms. Lorenzo read "instructions for the exam" to the examinees (including "go[ing] through all the guidelines on what constitute[d] cheating, as well as what [was] and [was] not allowed in the room"), and, with Ms. Manrique's help, handed out the testing materials. Testing then began (at approximately 8:45 a.m.). Ms. Lorenzo and Ms. Manrique "walk[ed] around the room, up and down the aisles," to "mak[e] sure that nobody [was] cheating or using anything [prohibited]" while the test was being administered. As she was doing so, during the essay portion of the Test, Ms. Lorenzo noticed Petitioner periodically "looking into her [cupped] left hand [which was positioned on the desk in front of her, just above her answer booklet, and appeared to contain tissues] while she was writing" in the booklet with her right hand. Ms. Lorenzo observed Petitioner's engaging in this suspicious conduct for "[a]t least ten minutes." During this time, Ms. Lorenzo was "staring at [Petitioner], watching her very closely." When she eventually made eye contact with Ms. Lorenzo, Petitioner moved her hands towards her face and "made a noise like she was blowing her noise." She then closed her left hand into a fist and continued writing with her right hand. Ms. Lorenzo advised Ms. Manrique that she suspected that "something [was] going on" with Petitioner, and she asked Ms. Manrique to "take a look." Ms. Manrique observed Petitioner for approximately five minutes, after which she reported back to Ms. Lorenzo that she "believe[d] there [was] something going on as well." Ms. Lorenzo then "walked to the back of the room and stood to the right of Petitioner." From her vantage point, Ms. Lorenzo noticed "sticking out the bottom of [Petitioner's left] hand," which was "still in a fist," not only tissues, but "paper with some writing on it." Upon making this observation, Ms. Lorenzo asked Petitioner to show her "everything [Petitioner] had in her hand."3 Petitioner's immediate response was to "[u]s[e] her right hand [to] grab[] the tissues out of her left hand," which she then quickly closed into a fist again. She gave the tissues she had transferred from her left to right hand to Ms. Lorenzo, explaining that she had "just tissues" and nothing else. Ms. Lorenzo, however, knew otherwise and demanded that Petitioner open her left hand. Petitioner complied, revealing the paper that Ms. Lorenzo had seen "sticking out" of the hand when it was clenched. The paper was the size of a "small note [pad] sheet." It was crumpled from being held tightly by Petitioner. On the paper was a complete essay that that Petitioner had written before entering the examination room. The essay was entitled, "A Place to Visit: San Antonio Park."4 Ms. Lorenzo took the paper, as well as Petitioner's testing materials, including Petitioner's answer booklet, from Petitioner. In her answer booklet, Petitioner had written an essay about San Antonio Park, substantial portions of which were identical, word for word, to what was on the paper that Ms. Lorenzo had confiscated from Petitioner's left hand. Petitioner had knowingly brought this paper into the examination room with the intent to use it as an aid in answering the essay question on the general knowledge portion of the Test,5 and she carried out this intent once the Test began.6 As Petitioner started to "g[e]t a little bit loud," Ms. Lorenzo escorted her from the room and took her to see Juan Meza, the College's testing director.7 On the way to Mr. Meza's office, Petitioner insisted that she had not cheated and "begg[ed] [Ms. Lorenzo] to let her go finish the exam." Ms. Lorenzo responded that Petitioner's "test [was] over for today." After Ms. Lorenzo had told Mr. Meza that she had "found [Petitioner] cheating," Mr. Meza spoke to Petitioner and told her that she could not "continue taking the test" because she had been caught cheating. Petitioner denied to Mr. Meza that she had been cheating. Mr. Meza, in turn, informed Petitioner that he would send an "irregularity report" to the Department and that the Department would "make [a] decision" as to whether she had been cheating and then "contact her to let her know what [was] going on." As promised, on or about April 19, 2004, Mr. Meza sent an "irregularity report" to the Department (along with the materials that Ms. Lorenzo had taken from Petitioner in the examination room). On April 26, 2004, the Department sent the following letter to Petitioner: This letter is in response to information I have received from staff at Miami Dade College, Kendall campus confirming that you failed to follow testing procedures during the administration of the General Knowledge Test on April 17, 2004. Along with the admission ticket you received for the examination, you received a letter that outlines the State's policy on cheating. Section 1 (c) and (f) and Section 2 state the following: "Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. Section 2: Prohibited Aids The following aids are prohibited during examination administration: Timex Data Link™ wrist watch; electronic pager; cellular telephone; pocket organizer; electronic writing pen or pen-input device; any electronic device with an alphabetic keyboard; dictionary or other books; ruler; papers of any kind, including scratch paper; slide rule; protractor; compass; laptop computer; calculator watch, or calculator except those calculators provided at the test center for the following tests: Mathematics 6-12, the math portion of Middle Grades Integrated Curriculum (MGIC), Middle Grades Mathematics 5-9, Chemistry 6-12, Physics 6-12, and the math subtests of the General Knowledge Test." As a result of your failure to abide by this policy, the score on the Essay subtest of the General Knowledge Test under your name and Social Security number . . . for the April 17, 2004, test administration has been invalidated. By copy of this letter, I am also informing Professional Practices Services and the Bureau of Educator Certification of this decision. This decision means that you have yet to fulfill the State's requirements for a passing score on the Essay subtest of the General Knowledge Test. You are entitled to dispute this decision through legal administrative procedures. If you wish to do so, you must send a written request for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. The written request must be postmarked within twenty (20) calendar days of the date you receive this letter and submitted to the following address: . . . . If you fail to submit the written request within the specified time period, you will have waived the opportunity to contest the decision through administrative proceedings, and the score invalidation decision will be final, subject only to judicial review pursuant to Section 120.68, Florida Statutes. Petitioner responded by sending a letter to the Department, which read (verbatim) as follows: I have received your letter about the problem I had the day of test. I'm so sorry about the day. In 20 years of being a teacher, I never had that kind of problem. That day I had a bad cold and when I finished my test, the only thing that I had to do was to check it, but I was coughing badly and I took a napkin that was inside my bag on the floor, but together with the napkin came out a paper. I took both in my hand. I put my hand up, because I knew that if the teacher saw me in this moment I got in trouble, but it was too late. The teacher came to me, asked for the paper and the napkin and without I could explain anything. She took to the supervisor and explained everything to him. He told he had to follow the rules, then he had to report the incident. So I think I should have an opportunity to do my tests again. The Commissioner subsequently notified Petitioner that her application for certification was being denied because she had "attempted to cheat" on the essay portion of Test "by referring to a complete essay she had in her possession when she entered the room." This denial of Petitioner's application for certification is the subject of the instant proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order sustaining the denial of Petitioner's application for certification. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2005.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 30, 2002.
Findings Of Fact Veita Jackson-Carter is the assistant principal at Eastside High School (Eastside) which is located in Gainesville, Florida, and is part of the Alachua County School District (school district). In the summer of 2002, Petitioner came to Eastside to talk to Ms. Jackson-Carter about employment there. At that initial meeting, Petitioner and Ms. Jackson-Carter discussed instructional positions at Eastside. While Petitioner gave a resume to Ms. Jackson-Carter, Ms. Jackson-Carter informed Petitioner that he needed to submit an employment application with the school district's personnel office. Ms. Jackson-Carter was very interested in hiring Petitioner. However, she explained to Petitioner that while the individual schools make recommendations regarding hiring, the school district actually hires applicants. Petitioner submitted a completed Application for Instructional Position on June 28, 2002, to the school district.2/ Because of her interest in hiring Petitioner, Ms. Jackson-Carter checked with someone in the school district's personnel office on the status of his application for an instructional position. She learned that there was a problem with his obtaining a teaching certificate. During this same period of time, Petitioner met with Marcia Shelton. At that time, Ms. Shelton was a certification specialist with the school district's department of personnel services. She worked with applicants in assisting them in determining eligibility for certification. However, neither she, nor anyone who works for the school district, has the authority to issue teaching certificates or statements of eligibility for teaching certificates as only the Florida Department of Education has the authority to do that. At the initial meeting between Petitioner and Ms. Shelton, Petitioner informed Ms. Shelton that a particular school was interested in hiring him for an instructional position. She began the process of assisting him to determine his eligibility for certification. Petitioner's application contained his educational achievements. He earned a bachelor's degree from Kentucky State University with a major in criminal justice and a minor in political science, and a master's degree with a major in human resource management and a minor in the area of public administration. Ms. Shelton asked for and received copies of Petitioner's academic transcripts. Ms. Shelton's review of the transcripts revealed that Petitioner had a cumulative undergraduate grade point average (GPA) of 2.322. She informed Petitioner that the minimum GPA required for issuance of an initial teaching certificate was 2.5 and that he would not be eligible for certification because the GPA for the courses needed for certification were not high enough. While Petitioner had the course work to meet specialization requirements for political science, the grades were not what was required. In an effort to help Petitioner, Ms. Shelton contacted Jean Morgan with the Bureau of Educator Certification of the Florida Department of Education (Department), to inquire as to whether public administration courses Petitioner had taken could be counted toward those required for certification in political science or social science. Petitioner's own exhibits establish that Ms. Shelton made numerous attempts to assist Petitioner by making repeated inquiries in August 2002 to Ms. Morgan and Ms. Morgan's supervisor, Kathy Hebda, in an effort to find a way for Petitioner to meet the Department's requirements. Ms. Shelton's efforts included faxing course descriptions to the Department for evaluation in an effort to satisfy the Department's certification requirements. Ms. Shelton's efforts, however, on Petitioner's behalf were unsuccessful. That is, she learned from both Ms. Morgan and Ms. Hebda that the Department would not accept the public administration courses to bring up Petitioner's GPA in political science. On August 5, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. She informed him of some career service positions at Eastside for which he could apply. Petitioner completed and filed a Career Service Application Form dated August 13, 2002, with Respondent. There is an inconsistency in Petitioner's answers to a question regarding criminal background on each application for employment with Respondent. Each application contains a question regarding whether the applicant had ever been found guilty of, regardless of adjudication, or entered a plea of nolo contendere to offenses listed in three categories. On the Application for Instructional Position, Petitioner checked "no" for all three categories: felony, first degree misdemeanor, and second degree misdemeanor involving a minor child or involving violence. He then answered "yes" to the question, "Have you ever been judicially determined to have committed abuse or neglect against a child." The application instructs the applicant that if any question was answered yes, to explain and attach all pertinent documents. Despite having answered yes to one question, Petitioner wrote "N/A" in the blank provided. However, on the Career Service Application Form, he answered "yes" to the category generally entitled "misdemeanor." The application instructs the applicant that if the answer to any of the criminal background questions was "yes," that the applicant must list charge(s) and disposition. In the blank provided to list charge(s) and disposition, Petitioner put "N/A" in the blank provided, despite having answered "yes" to the category entitled "misdemeanor." The application also instructs the applicant to attach all pertinent documents. On or about August 16, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. He inquired of Ms. Jackson-Carter when he was to report to work. Ms. Jackson- Carter inquired of Petitioner if the school district had offered him a position as she was not aware of any position having been offered to him. The last correspondence in the record from Ms. Shelton to the Department is dated August 29, 2002, in which she notes that the Bureau Chief of the Department's Bureau of Educator Certification was personally reviewing Petitioner's documents. She also noted that "he still has not applied to DOE." In Ms. Shelton's and Dr. Pratt's experience, it is unusual for the bureau chief to become personally involved in such a review. Ms. Shelton received a call from Ms. Hebda and the bureau chief during which Ms. Shelton learned that the bureau chief personally was going to accept the course work to enable Petitioner to meet specialization requirements for a temporary certificate in political science. Ms. Shelton did not have the authority to make that determination that was ultimately made by the bureau chief of the Bureau of Educator Certification. On August 23, 2002, the school district sent a letter to Petitioner informing him that his application for substitute teaching had been approved for the 2002-2003 school year. The letter informed him about a mandatory new employee orientation. It also specified that state law requires that all new employees be fingerprinted. The letter was signed by Josephine Brown, Coordinator, Personnel Services. Being a substitute teacher requires direct contact with students. The position of substitute teacher is not a permanent position with the school district. It is a conditional offer pending cleared fingerprint processing. Dr. Leila Pratt was Director of Personnel Services for the Alachua County School Board in August 2002. She was Ms. Shelton's and Ms. Brown's supervisor. She has since retired. On August 27, 2002, Dr. Pratt attended the criminal history review committee meeting during which Mr. Price was discussed. Of particular concern to Dr. Pratt were certain entries on Mr. Price's criminal history record received from the Florida Department of Law Enforcement and the Federal Bureau of Investigation which Ms. Pratt believed reflected violent behavior. She was concerned that these offenses would make Petitioner ineligible for employment because of statutory and school district policy requirements. She was also concerned about the inconsistencies between the answers provided on the two applications. A Criminal Records form was completed regarding Petitioner as a result of the committee meeting which included the following notations: "criminal possession of handgun (87); possession of handgun (93); DUI & suspended license (2000); violation of KY charges (01). Falsification of application." The recommendation of the committee was termination. The school board issued a Separation of Service form to Petitioner dated and signed by Petitioner and Dr. Pratt August 28, 2002. The form identifies the reason for separation as "background check." Petitioner requested and was given the opportunity to explain his criminal history. On August 29, 2002, he went to Dr. Pratt's office to discuss his criminal background and to provide Dr. Pratt with pertinent documentation. However, the information which Petitioner provided to Dr. Pratt did not satisfy her concerns. On August 29, 2002, Dr. Pratt wrote a letter to Petitioner which stated as follows: Dear Mr. Price: In response to the three charges: criminal possession of a weapon, menacing and assault filed in August 1987, your documentation does not indicate your charges were dropped to a misdemeanor. It indicates that you pled guilty and was sentenced to thirty (30) days confinement. [sic] In response to your charge filed on April 6, 1989 for trespassing on property after a warning, you provided no official documentation from the court records. In response to the charge filed on November 12, 1993 for possession of a handgun by a convicted felon, your documentation does not officially state that your charges were dismissed or that the charges were dropped. We are unable to determine what is meant by the statement, "lack of probable cause" on the paperwork you submitted. In response to the charge filed on April 20, 2000 for DUI and suspended license, your documentation stated the case was dismissed, but there was probable cause for the arrest and your case was remanded back to another court for the disposition. You submitted no documentation as to the final disposition. A restraining protection order was issued from 2000 to 2003 for domestic battery. No official court documentation regarding this charge has been provided. In addition to the information you submitted being incomplete, one of the documents you presented was not an official court document, which is what we requested, official court records. To provide further consideration to your request for employment, official court documents will need to be provided for all of the charges that have been filed. Until this information is received and reviewed, you are not eligible to work for the School Board of Alachua County. According to Ms. Price, official court documents are required of everyone under these circumstances. Even if the court documents had been official, Dr. Pratt's concerns would have remained because of the violent nature of some of the offenses in the documents and the statutory and school district policy requirements. Petitioner did not submit further documentation to Respondent clarifying his criminal history. Petitioner completed an Application for Florida Educator Certificate which was mailed to the Department on August 30, 2002. The Department issued an Official Statement of Status of Eligibility to Petitioner dated May 28, 2003, which explained to Petitioner what was required of him to get a temporary certificate and a professional certificate covering political science for grades 6 through 12. The Official Statement of Status of Eligibility also informs Petitioner that issuance of a certificate will be contingent upon a review of any criminal offense as a result of fingerprint processing. Dr. Pratt characterized Ms. Shelton's efforts on Petitioner's behalf as going "beyond the call of duty." She believes that her entire staff acted appropriately in dealing with Petitioner. Petitioner is an African-American male. At the time of the adverse employment action giving rise to this proceeding, Petitioner was 42 years old. Ms. Jackson-Carter and Dr. Pratt are African-American females. Ms. Shelton is a white female. Beyond Petitioner's allegation of discrimination, Petitioner presented no evidence that his race, sex, or age played any role in any action taken by Respondent regarding Petitioner's eligibility for teacher certification or its decision to terminate his probationary employment as a substitute teacher. The Department's ultimate acceptance of coursework and issuance of a Statement of Status of Eligibility some eight months after the adverse employment action taken by Respondent does not establish that Respondent engaged in discriminatory conduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. S 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 19th day of December, 2003.
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner John T. Barnes is currently employed by Santa Rosa County in the capacity of Veterans Service Officer. At some undisclosed date, apparently in 1985, Petitioner submitted a request to Respondent that he be permitted to "purchase" a period of employment with the Santa Rosa County School Board from 1939-1941 as creditable service under the Florida Retirement System (testimony of Petitioner, Hearing Officer Exhibit 2). In his petition, Petitioner claims that he worked as a full time employee as a janitor at the Chumuckla High School from July 1, 1939 to June 30, 1941. He was a student at the school during this period, but would have been unable to return in the fall of 1939 since his father died and it was necessary for him to work to support the family. With the janitorial job, Petitioner was able to attend school while performing his janitorial duties before and after regular school hours, plus weekends. He testified that his salary was $30 per month, which was paid by check that he received from the Superintendent each month. Petitioner performed his duties under the supervision of the school principal. Petitioner is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and Principal at that time are now deceased. Petitioner was the first janitor to be employed at the Chumuckla High School (testimony of Petitioner, Petitioner's Exhibit 1). In order to establish his claim of prior service, Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939-1941. Pursuant to this request, the School Board Personnel Officer, Gertrude E. Wolfe, searched the School Board records for the period in question, but was unable to find any mention of Petitioner. However, subsequent to that search, a copy of the minutes of a regular meeting of the Board of Public Instruction of Santa Rosa County on June 3, 1941 was discovered. It stated that the sum of $7.50 was paid to Petitioner for an unstated purpose and was simply characterized as a "bill." Petitioner submitted the affidavits of his sister, Clara B. Lloyd, who had been a teacher at the Chumuckla School during the period of June 1, 1939 to May 31, 1941 and therein certified that Petitioner had served as a janitor at the school during that period and had received a salary of $30 per month from the Santa Rosa County, Florida school system. Another affidavit to like effect was submitted by a "student and co-worker," Jack D. Jernigan, to the same effect, except that it showed the period as July 1, 1939 to June 30, 1941. Another affidavit from Mrs. A. L. Gillman, who was a teacher and assistant principal at the school during the time in question, certified also that Petitioner had been employed by the School Board during that period at a salary of $30 a month (testimony of Barnes, Wolfe, Petitioner's Exhibits 1- 2). By letter, dated February 27, 1987, the Respondent's State Retirement Director denied Petitioner's request for retirement service credit on the basis that he had been a temporary student employee during 1939-41 and did not therefore meet the definition of a regularly established position, and thus the service was not creditable and could not be purchased under the Florida Retirement System. The letter noted, however, that Respondent had received a letter from the Superintendent of Schools, presumably of Santa Rosa County, which stated "We have researched our records for the employment of John T. Barnes for the school terms of 1939-40 and 1940-41 as janitor for the Chumuckla High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type. If he were paid in this manner, the County office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2) Based on the foregoing uncontroverted evidence, it is found that the Petitioner did in fact perform janitorial duties for the Santa Rosa School Board during the period July 1, 1939 to June 30, 1941, at a salary of $30 a month.
