The Issue The issue in this case is whether Adel N. Assad, D.V.M. (Respondent), failed to comply with a lawful Final Order of the Florida Board of Veterinary Medicine (Board) previously entered in a disciplinary hearing in violation of Section 474.214(1)(f), Florida Statutes. The Order required, among other things, that Respondent take a specific examination to determine his competency to practice.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed veterinarian, having been issued license number VM-2404 by the Board. Respondent has been practicing, subject to discipline at various times, in the State of Florida since October 1979. On December 27, 2000, the Board issued a Final Order Approving Settlement Counter-stipulation (Order) requiring Respondent to take and successfully complete the NBEC special purpose examination in small animal medicine. The Order required Respondent to take and pass the NBEC special purpose examination within the first two years of his probation, or by December 27, 2002. The NBEC special purpose examination was created and regulated by the NBEC, which was renamed the National Board of Veterinary Medical Examiners (NBVME) in July 2001. The NBEC special purpose examination was thereafter renamed the NBVME species specific examination in small animal medicine in July 2001, in order to reflect the organization's name change and is currently administered under that name. It has not changed in substance or format since its creation in 1997 and is currently available in the original substance and format under the name "National Board of Veterinary Medical Examiners species specific examination in small animal medicine." Respondent or any other Florida licensee required to take the NBVME species specific examination must contact the Board in order to request administration of the examination. Any Florida licensee who directly contacts the NBVME to request the species specific examination or its current equivalent would be informed that he or she must contact the Board to request the examination. The NBVME does not offer standard examinations directly to veterinarians. Linda Tinsley is a government analyst employed by the Florida Department of Business and Professional Regulation. She is currently assigned to the Board where she serves as the liaison between the Board and the NBVME. Ms. Tinsley is responsible for coordinating the paperwork and procedures for requesting and purchasing the NBEC special purpose examination in small animal medicine or its current equivalent, the NBVME species specific examination in small animal medicine. Ms. Tinsley is also responsible for receiving phone calls and correspondence from applicants and licensees submitted to the Board's office. In this capacity, she would be the person referred to if seeking or requesting administration on the NBVME species specific examination. Respondent was reminded that he was required to take the NBEC special purpose examination in small animal medicine at the September 2002 meeting of the Board. At that meeting, Ms. Tinsley informed those in attendance, inclusive of Respondent, that a licensee must contact the Board's office in order to request the NBVME species specific examination. Respondent never contacted the Board's office to request or to schedule the administration of the NBVME species specific examination. Consequently, he has not taken or passed the NBVME species specific examination in small animal medicine, as required by the Order. Respondent's disciplinary record, as established by past Final Orders of the Board documenting discipline imposed on his license, makes clear that Respondent presents a danger to the public in the practice of veterinary medicine. Respondent has previously been disciplined seven times by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered (a) finding the Respondent guilty of having violated the provisions of Section 474.214(1)(f), Florida Statutes, as alleged in the Administrative Complaint; and (b) in view of the aggravating circumstances in this case, the revocation of the Respondent’s license to practice as a veterinarian in the State of Florida. DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2003. COPIES FURNISHED: Thomas V. Infantino, Esquire Infantino & Berman Post Office Box 30 Winter Park, Florida 32790-0030 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Lisa Parker (Respondent) committed the acts alleged in the Miami-Dade County School Board's (School Board) Notice of Specific Charges and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Respondent has been employed by the School Board since 1986. During the time relevant to this proceeding, Respondent was the lead staffing specialist for the School Board's ESE program in Region I. During the 2008-2009 school year, Michael J. Krop Sr. High School (Krop) was a school for which Respondent had responsibility. The School Board's ESE program provides services to students who are determined eligible for such services. The eligibility determination is made by a staffing committee consisting of a minimum of three School Board professional employees. The School Board has adopted the following procedure pertaining to the eligibility staffing committee2/: A staffing committee, utilizing the process of reviewing student data including but not limited to diagnostic, evaluation, educational, or social data, determines a student's eligibility. A minimum of three (3) professional personnel, one (1) of whom is the district administrator of exceptional students or designee, meet as a staffing committee. For students being considered for eligibility as a student with a disability, the parent is invited to participate in this meeting . . . . If a student is determined to be eligible for services through the ESE program, an IEP team is assembled to conduct an IEP meeting and to prepare an IEP for the student. The parents of the student are entitled to attend the IEP meeting as part of the IEP team. A local education agency (LEA) representative is a required member of an IEP team. The other required members of the IEP are a general education teacher, a special education teacher, and an evaluation specialist.3/ Relevant to this proceeding, a general education teacher and an evaluation specialist can be excused from the IEP meeting before the close of the meeting. The members of a staffing committee that determines eligibility can also constitute the members of an IEP team. An eligibility determination is frequently made with an IEP team meeting ensuing immediately thereafter. There is nothing unusual about an eligibility determination and an initial IEP being accomplished on the same day. "Specific learning disability" and "other health impaired" are two categories that qualify a student for ESE services.4/ School-based staffing specialists are assigned to schools to hold staffing meetings to determine eligible for services from the ESE program, and to write an IEP for a student found to be eligible. Generally, a lead staffing specialist is a position of support for school-based staffing specialists in the areas of organization, scheduling, and compliance with relevant substantive and procedural requirements of the Individuals with Disabilities Education Act, Florida Statutes, and rules. A lead staffing specialist also provides professional development to school-based personnel through in- service training and individual support to schools. A lead staffing specialist is responsible for ensuring that eligibility determinations were based on adequate documentation in a timely fashion. On June 27, 2008, the School Board published a "Memorandum" that solicited applicants for the position of "lead staffing specialist." That Memorandum contained the following under the heading "Job Responsibilities Include": Serve as the Local Education Agency (LEA) Representative of the Multi-Disciplinary Team for eligibility, placement and dismissal decisions for students in the least restrictive environment. Collect and review staffing data and allocation of personnel to facilitate adherence to required procedures and timelines for staffings. Assist the SPED Instructional Supervisor in monitoring unit allocations, program enrollment and suspension and inclusion percentages. Demonstrate knowledge in procedural safeguards, due process and mediation procedures. Consult with the Regional Center SPED Instructional Supervisors to resolve issues related to the provision of programs and services to individual students. Provide on-site technical assistance to teachers, administrators and support personnel in areas involving program planning, curriculum and instructional techniques for students. Provide program assistance to parents and community agencies. Identify school needs regarding enrollment, unit allocation, equipment, materials and transportation. Plan and conduct regularly scheduled staff meetings to maintain communication and provide for the dissemination of information. Serve as the Region Center SPED Instructional Supervisor's designee in the identification and resolution of problems, issues and concerns related to special education services. When necessary, a lead staffing specialist is also expected to serve as the LEA representative at a school-based staffing to determine a student's eligibility for services from the ESE program and to participate in the preparation of an IEP as a member of the IEP team. A lead staffing specialist who serves as the LEA at an initial eligibility meeting or an IEP meeting is charged with ensuring that the School Board's policies are followed and that all necessary documentation is obtained. It is the School Board's responsibility to ensure that its policies comply with all applicable Federal and Florida statutes and rules. The LEA at an IEP meeting has the responsibility of preparing a Matrix of Services form based on the services provided by the IEP. The completion of the form results in the generation of a number that is used to determine the level of funding the School Board receives for the student. For ease of reference, that number will be referred to as the matrix number. A higher matrix number generates more funding than a lower number. A matrix number is also used to determine the level of funding for a McKay Scholarship. Again, a higher matrix number will result in greater funding. Respondent has been adequately trained in the procedures for determining eligibility for ESE program services, for the completion of IEPs, and for the completion of Matrix of Service forms. At the times relevant to this proceeding, Ms. S.-N. served as the School Board's Instructional Supervisor of ESE and was Respondent's direct supervisor. In addition to their professional relationship, Ms. S.-N. and Respondent had been close personal friends for over 25 years at the time of the formal hearing. S.N. is the daughter of Ms. S.-N.. At the request of Ms. S.-N., Respondent served as the LEA for the eligibility staffing and subsequent creation of an IEP for S.N. at Krop on October 15, 2008. Also at Ms. S.-N.'s request, Respondent served as the LEA on an IEP team that prepared a second IEP for S.N. on February 9, 2009. Prior to the eligibility determination on October 15, 2008, S.N. was a student at American Heritage Academy, a private school in Plantation, Broward County, Florida. Prior to the eligibility determination, Dr. Laurie Karpf, a psychiatrist, had diagnosed S.N. with attention deficit hyperactivity disorder (ADHD) and mood disorder, NOS (not otherwise specified). Dr. Karpf prescribed for S.N. medication to treat ADHD.5/ Prior to the eligibility determination, Dr. Garnett Reynolds, a speech and language pathologist employed by the School Board, screened S.N. to determine whether S.N. had speech or hearing deficits. Dr. Reynolds determined that S.N. had no such deficits. Dr. Reynolds did not participate further in the eligibility determination or in drafting either IEP at issue. On August 22, 2008, Dr. Yolanda Sklar, a school psychologist employed by the School Board, evaluated S.N. at the request of Ms. S.-N. Because S.N. was enrolled in a private school in Broward County, Dr. Sklar conducted the evaluation in her capacity as a "clinical psychologist," using the DSM-IV model, as opposed to the capacity as a school psychologist using School Board protocols. Dr. Sklar's report stated the following as the "Reason for Referral": [S.N.] is a 15 year, nine month old female who was referred for a psychological evaluation for reasons of academic difficulties in school. [S.] is enrolled in tenth grade at American Heritage School. Information was requested regarding [S.'s] level of intellectual functioning, academic achievement, and her learning aptitude in order to address the possibility of learning disabilities. [S.] presents with a history of attentional difficulties and academic problems in school. She has struggled throughout her schooling years, but her difficulties in school have become more evident at the higher grades, with higher academic demands and expectations. [S.] also has Attention Deficit Disorder. She is currently on medication (Focalin) for treatment of attentional difficulties and she appears to be responding well to the medication. The purpose of this evaluation is to provide diagnostic clarification and assist with determination of [S.'s] educational needs. Recommendations are provided based on [S.'s] learning abilities and her instructional needs in order to insure her academic potential and her success in school. Ms. S.-N. had, at times, been Dr. Sklar's direct supervisor. Dr. Sklar felt intimated when Ms. S.-N. requested that she evaluate S.N. Nevertheless, Dr. Sklar's report and her testimony at the formal hearing established that she evaluated S.N. in a thorough and professional manner. Dr. Sklar administered to S.N. the following tests: Wechsler Intelligence Scale for Children-IV Woodcock-Johnson-III Tests of Achievement Woodcock-Johnson-III Tests of Cognitive Ability Beery Developmental Test of Visual- Motor Integration-V Behavior Assessment System for Children, Parent Rating Behavior Assessment System for Children, Self-Report Sentence Completion Test-Adolescent Clinical Interview and Observations Dr. Sklar's report contained the following "Summary and Conclusions": [S.N.] is a 15 year, nine month old female who is functioning within the Average range of intellectual classification. Assessment of learning aptitude indicates a learning disorder or learning disability in processing speed. Academically, [S.] is not performing to the best of her ability and not reaching her potential due to learning disabilities. She is achieving significantly below her level of expectancy in reading fluency. Psychometric findings strongly support evidence of a specific learning disability in processing speed. A childhood history of Attention Deficit Disorder is also supported. The overall implications are that [S.] will require accommodations in the classroom and in testing situations to fully utilize her intellectual potential. The failure to accommodate may lead to academic performance well below her expected ability. Based on findings, it is imperative that [S.] receive individualized instructional adjustments in the classroom and test accommodations in order to meet her educational goals. Results and clinical impressions are consistent with a diagnosis of Attention Deficit Disorder/Hyperactivity Disorder, Predominately Inattentive Type, and Learning Disorder NOS (Not Otherwise Specified). Dr. Sklar's report contained the following under the heading "Diagnostic Impressions": The following diagnostic criteria is met in accordance with the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV-TR), American Psychiatric Association: Axis I: 314.00 Attention Deficit/Hyperactivity Disorder, Predominately Inattentive Type Axis II: 315.9 Learning Disorder, NOS Dr. Sklar's report contained the following under the heading "Educational Strategies and Recommendations": [S.] would benefit from educational software programs that are multi-modal and emphasize visual skills, as her visual memory processing skills appear to be her strongest learning modality. Software programs, such as Talking Books would be beneficial. As [S.] has a history of Attention Deficit Disorder, it is imperative that directions be specific and given clearly. It may be necessary to repeat directions in order to assure attending skills and comprehension of instructions regarding the task at hand. In light of deficits in processing speed, it is imperative that [S.] receive time accommodations in classroom assignments, exams, and standardized tests. Restrict the amount of work required on a single page if possible. Teaching techniques should begin with identification of individual parts, moving to integrated wholes. Keep visually presented material simple in format and uncluttered by excessive stimuli. Classroom lectures may be taped in order of [S.] to play back lectures and take notes at her own pace. Strategies that may facilitate written tasks include providing outlines and visual cues such as color coding, numbering lines, etc. Educational materials and tools, such as a computer/word processor, calculator, tape recorder, spell-checker, ruler, etc., should be allowed as deemed necessary. Dr. Sklar's report does not reflect an opinion as to whether S.N. met the eligibility criteria for ESE services in Miami-Dade public schools. At the formal hearing Dr. Sklar testified that S.N. did not meet criteria for eligibility under the SLD category. The School Board uses a discrepancy model, which measures the statistical difference from IQ and level of academic functioning. The difference in S.N.'s evaluation was one-half point short of the differential required by the School Board, which determined that she was not eligible, but suggested that further testing was warranted. Prior to October 15, 2008, Ms. S.-N. instructed Respondent to determine S.N.'s eligibility for ESE services and to prepare an IEP for her daughter as soon as possible. Respondent could not remember the date that conversation took place, but it is clear that Respondent worked on very short notice. The School Board contends that Respondent acted to the detriment of other students who were waiting to be evaluated for eligibility of ESE services or for an IEP by giving S.N. priority over those other students. The School Board's contention is rejected because there was insufficient evidence to establish that any student's staffing was delayed by Respondent's actions. Ms. S.-N. enrolled S.N. as a student at Krop on October 15, 2008. The enrollment record reflected that S.N. resided at an address in Miami-Dade County, Florida, within the Krop school zone. That was a false address. Although Respondent utilized that false address on the October 15, 2008, IEP, Respondent testified, credibly, that she pulled the address from the school computer. Respondent had no duty to verify the accuracy of that address. There was no evidence that Respondent knew or should have known that the address was false. In response to Ms. S.-N.'s instruction, Respondent attempted to convene an eligibility team meeting and an IEP meeting at Krop on October 15, 2008. The meeting was held in the office of Elissa Rubinowitz, the Program Specialist (for ESE) at Krop. On October 15, 2008, Respondent generated an IEP for S.N. that reflected that S.N. had been determined eligible for the following ESE programs: "Specific Learning Disabilities" and "Other Health Impaired." Under the heading "Signatures and Positions of Persons Attending Conference [sic]", the following signatures appear with the positions of each signer in parenthesis: Ms. S.-N. (parent), S.N. (student), Respondent (LEA representative), Ms. Rubinowitz (ESE teacher), Dr. Richard Rosen (evaluation specialist), and Lawrence Davidson (general education teacher). Mr. Davidson was not at the staffing committee team meeting that determined S.N.'s eligibility for services, nor did he attend the IEP meeting at Krop on October 15, 2008. Mr. Davidson's office at Krop was next door to Ms. Rubinowitz's office. After Respondent completed the IEP without Mr. Davidson's presence or input, Ms. Rubinowitz went to Mr. Davidson's office, gave him the IEP, and asked him to sign the IEP as the general education teacher. Mr. Davidson signed the IEP as the general education teacher.6/ The IEP reflects that S.N. was to be placed in all general education classes at Krop. Consequently, a general education teacher should have been a participating member of the IEP team. Because there was no general education teacher, the IEP team was inappropriately composed. Similarly, Dr. Rosen was not at Krop on October 15, 2008. On the afternoon of October 15, 2008, Dr. Rosen happened to be at the Region I office when Ms. S.-N. asked him to come into her office to review Dr. Sklar's psychological report. The only persons present were Ms. S.-N., Respondent, and Dr. Rosen. Dr. Rosen has known Dr. Sklar for many years and quickly reviewed her report. Ms. S.-N. had no questions about the report. After his review, Dr. Rosen signed the IEP as the evaluation specialist. Although Dr. Sklar is a school psychologist employed by the School Board, her report pertaining to S.N. is properly considered as being a private psychological evaluation because Dr. Sklar's evaluation of S.N. was not prepared pursuant to School Board protocol. Either Dr. Rosen or Respondent should have signed a form styled "Receipt of Private Psychological Evaluation," which would have acknowledged receipt of the private evaluation from Ms. S.-N. The form contains the following caveat: "A copy of this form should be kept in the student's cumulative folder." Respondent failed to ensure that this form was signed and placed in S.N.'s cumulative folder. Dr. Rosen should have completed and signed a form styled "Review of Psychological Reports Originating Outside Miami-Dade County Public Schools." That form includes a section for the school psychologist to determine whether the report is sufficiently recent and whether the evaluator meets professional background criteria. At the bottom of the form is a note that "This form is required for all psychological evaluations originating outside M-DCPS." Respondent failed to ensure that Dr. Rosen completed and signed that form. The determination that S.N. met ESE eligibility was not made by a properly convened staffing committee. There were three persons employed by the School Board at the Krop meeting (Respondent, Ms. Rubinowitz, and Ms. S.-N.). Likewise, there were three persons employed by the School Board at the Region I office meeting (Respondent, Dr. Rosen, and Ms. S.-N.). Ms. S.- N. attended both meetings as a parent; not as a School Board professional. Ms. Rubinowitz and Dr. Rosen did not participate in the same meeting. Consequently, no staffing meeting as contemplated by the School Board's policies occurred because a minimum of three School Board professionals did not meet as a staffing committee to determine eligibility. There was a dispute as to whether the staffing committee had adequate information to determine that S.N. met the criteria for ESE services under the SLD category or under the OHI category. That dispute is resolved by finding that a properly convened staffing committee had the right to rely on Dr. Sklar's report, on Dr. Karpf's records, and on input from Ms. S.-N. in concluding that S.N. was eligible under both categories. Further, the available information would have been sufficient for a properly convened staffing committee to determine that S.N. was eligible for ESE services under both categories. There was insufficient evidence to establish that the substantive contents of the IEP developed October 15, 2008, were inappropriate.7/ The Matrix of Services form contains five "domains." Domain A relates to "Curriculum and Learning Environment." Domain B relates to "Social/Emotional Behavior." Domain C relates to "Independent Functioning." Domain D relates to "Health Care." Domain E relates to "Communication." Under each domain is a "Level of Service" that begins with Level 1 and ends with Level 5. There is a descriptor on the form and in a handbook as to what constitutes a level of service. The person completing the Matrix of Service form assigns a number to each domain based on the level of service provided in the IEP. The numbers for the five domains are added together to produce what is referred to as the "Cost Factor Scale," which is used to determine state funding to the School Board. The higher the Cost Factor Scale, the more state funding the School Board would receive for the student. The Cost Factor Scale is also utilized in determining the funding for McKay Scholarships. As part of the IEP process, Respondent completed a Matrix of Services form in conjunction with the October 15, 2008, IEP. Petitioner established that Respondent should have scored Domain A as a 3 as opposed to a 4. As scored by Respondent, the total domain rating was 12. If Respondent had correctly scored Domain A, the total domain rating would have been 11. Domain totals ranging from 10-13 produce a cost factor scale of 252. Because the Cost Factor Scale was not changed, this error did not become significant until Respondent completed the Matrix of Services form in conjunction with the February 2009 IEP. S.N. withdrew from Krop on October 23, 2008, and returned to her private school placement shortly thereafter. Between October 2008 and February 2009, S.N.'s negative behaviors escalated. On February 5, 2009, Ms. S.-N. re-enrolled S.N. at Krop. On the instructions of Ms. S.-N., Respondent convened an interim IEP meeting on February 9, 2009. The purpose of the meeting was to "review accommodations." An interim IEP coversheet was prepared by Respondent. Those purporting to sign the coversheet as having participated in the IEP team meeting and their positions were: Ms. S.-N. (parent), S.N. (student), Respondent (LEA), Ms. Rubinowitz (ESE teacher and evaluation specialist), and Mr. Davidson (general education teacher). As he did with the earlier IEP, Mr. Davidson signed the interim IEP coversheet on February 9, 2009, without having attended the IEP meeting or providing any input. No general education teacher participated in the IEP meeting. Consequently, this IEP team was not appropriately formed. Respondent failed to adhere to School Board procedures in assembling the IEP team. At that meeting, the level of counseling for S.N. was changed from weekly to daily, and a provision was added for the counselor to consult with the family on a monthly basis to monitor the status of S.N.'s focus on schoolwork. This change was based on input from Ms. S.-N. as to S.N.'s escalating behavior. The body of the IEP was not changed to reflect the change in counseling for S.N. from a weekly basis to a daily basis. That omission was an error by Respondent. A note was added to the IEP to reflect the added provision for family counseling. Respondent completed a Matrix of Service form on February 9, 2009, based on the interim IEP. Domain B was increased from a 3 to a 4 because of the change from weekly counseling to daily counseling. Domain D was increased from a 1 to a 2 because of the addition of monthly counseling with the student's family. The total domain rating increased from 12 to 14 based on the increases in Domains B and D. The Cost Factor Scale increased from a score of 252 to a score of 253. Petitioner established that Domain B should not have been increased because the IEP does not reflect that the student would begin receiving daily counseling. Because of Respondent's scoring errors, the final Cost Scale Factor was 253. Had Respondent correctly scored the Matrix of Services form, the final Cost Scale Factor would have been 252. Determining a level of service under a particular domain requires some subjectively. While Respondent made the scoring errors reflected above, Petitioner failed to prove that Respondent deliberately "fudged" her scoring to benefit Ms. S.- N.8/ On February 20, 2009, S.N. was withdrawn from Krop by her father. Subsequent to that withdrawal, Ms. S.-N. applied for a McKay Scholarship for S.N. for the 2009-10 school year. The application included the two IEPs discussed herein and the two Matrix of Services forms completed by Respondent. Had Ms. S.-N. been successful in obtaining a McKay Scholarship, the amount of the scholarship would have been greater if it had been awarded on a Cost Factor Scale of 253 as compared to a Cost Factor Scale of 252. Respondent had no knowledge that Ms. S.-N. intended to apply for a McKay Scholarship on behalf of S.N. at any time relevant to this proceeding. S.N. has now graduated from a high school in Broward County, Florida. Until her graduation, S.N. received services and accommodations similar to those reflected on the IEPs at issue in this proceeding.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order find Lisa Parker guilty of the violations alleged in Count I (misconduct in office), Count (III) (Violation of School Board Rule 6Gx13-4A- 1.21 relating to Responsibilities and Duties of School Board employees), and Count (IV) (Violation of School Board Rule 6Gx13-4A-1.213 relating to the Code of Ethics) of the Notice of Specific Charges and as found in this Recommended Order. It is further recommended that the final order find Lisa Parker not guilty of the violations alleged in Count II (immorality) and (V) (Violation of School Board Rule 6Gx13-4A-1.212 relating to Conflict of Interests). For the violations found, it is recommended that the final order suspend Lisa Parker's employment without pay for a period of 30 school days. Because Lisa Parker has been suspended for more than 30 school days, it is RECOMMENDED that her employment be reinstated with back pay. The calculation of back pay should not include pay for the 30- day suspension period. DONE AND ENTERED this 15th day of February, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 15th day of February 2013.
The Issue The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination. At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions. Mr. Schmidt is challenging three questions on the exam, questions 114, 411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering. The grade of four given to Mr. Schmidt's response to question number 114 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of five given to Mr. Schmidt's response to question number 411 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of three given to Mr. Schmidt's response to question number 418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.
Recommendation Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two. DONE AND ORDERED this 11th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP. Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr. O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer. Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer. With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination. The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details. Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary. Paragraph 6: Accepted. Paragraph 7: Accepted. Paragraph 8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Omitted as unnecessary subordinate details. COPIES FURNISHED: Mr. Daniel B. Schmidt 2209 Northeast 15th Terrace Gainesville, Florida 32601 H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
The Issue Whether Petitioner is entitled to additional credit for her solution to Problem 120 on the Principles and Practice of Engineering portion of the engineering licensure examination administered on April 14, 2000, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On April 14, 2000, as part of her effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 46 on the Examination. For the civil engineering specialization, a raw score of 46 converts to a score of 68. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested that her solution to Problem 120 on the Examination be rescored. Petitioner's written request was referred to the NCEES. The NCEES's rescoring of Petitioner's solution to Problem 120 resulted in her receiving no additional points. The Board received the NCEES's rescoring results on or about December 5, 2000. After receiving a letter from Petitioner (dated December 14, 2000) requesting a "formal hearing," the Board referred the matter to the Division. Problem 120 was worth ten raw points. Petitioner received six raw points for her solution to Problem 120. In her solution to Problem 120, Petitioner failed to properly take into consideration the height of the water table, did not compute the factor of safety for load-bearing capacity in the manner required, and made an arithmetic mistake. Therefore, in accordance with the requirements and guidelines of the NCEES's scoring plan for this problem, the highest raw score that she could have received for her solution to this problem was a six, which is the score she received. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments": The examinee made three errors. The solution approved by the Civil Engineering Exam committee called for a correction in requirement (a) for the mid height water table. The examinee ignored this correction. A two point grade reduction is called for. The examinee made a numerical error in evaluating the bearing capacity equation. This error called for a one point grade reduction. In evaluating the factor of safety the examinee added an erroneous load factor. A two point grade reduction is called for. With a total of five grade points lost a final grade of six is called for. SCORER'S RECOMMENDATION: Recommended score = six There has been no showing that the rescorer's analysis was in any way flawed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score she received from the NCEES on the Principles and Practice of Engineering portion of the April 14, 2000, engineering licensure examination. DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 16th day of April, 2001.
Findings Of Fact The Construction Industry Licensing Board, (Board), is the state agency in Florida charged with the responsibility of regulating contractors. As a part of this function, it periodically administers written examinations to applicants to determine their qualification to be certified or registered with the various counties as contractors in this state. At some time prior to August, 1987, Petitioner, Paul E. Curtis, made application to the Board to take the October, 1987 examination. As a result of his application, which was submitted sometime in June or July, 1987, he received several pieces of correspondence from the Board requesting additional information. In early August, 1987, the Board advised Petitioner that he did not qualify for license examination at that time and requested even additional information. This request for additional information was mailed to the Respondent on August 27, 1987, and Petitioner had ten days to respond. He was very late in doing so, not submitting the requested information until September 25, 1987. Nonetheless, even though he could have been disqualified on that basis, the Board determined he was qualified to sit for the examination and mailed his examination admission card to him on September 29, 1987. At the time the admission card was mailed to Petitioner, his name was listed on the Department's sight book indicating the candidate number, the date of the examination to be taken, and the date the admission card was sent. All admission cards are mailed by United States Mail. To the best of the knowledge of Ms. Berry, Examination Branch clerk, candidates whose admission cards were mailed out subsequent to the date on which Petitioner's card was mailed apparently received them as they did sit for the examination in question on October 22 and 23, 1987. Petitioner, however, did not sit for the examination. He contends that as of the date of the examination, he had not received his admission card. Evidence uncontroverted by the Respondent tends to indicate that the admission card was not received by the Petitioner until October 26, 1987, a date subsequent to the examination dates. This was supported by the testimony of Ms. Tillman, the office manager, who personally recalled opening the letter from the Board which contained the admission card and applying the current date stamp to it as was routine practice on the day the card was received. That was October 26, 1987. This was confirmed by the unofficial bookkeeper, Mrs. Curtis. She indicated that because Petitioner had been looking forward to some communication from the Board, all employees had been notified to look out for any Board correspondence, to open it immediately upon receipt, and to get it to Petitioner as soon as it was stamped in. This procedure was followed and according to both Ms. Tillman and Mrs. Curtis, the stamp was placed on the document the day it was received and it was immediately delivered to Petitioner. By this time, the examination had already been given. Petitioner subsequently sat for the examination on the two sessions following that of October 22/23, 1987 and has successfully passed three of four sections of the examination. Rules of the Board, however, require that in order to be licensed, a candidate must pass all sections of the examination in three consecutive sessions. The Board has taken the position that Petitioner's failure to sit for the examination at the first session after his qualification as eligible to take it, on October 22/23, 1987, constitutes his use of the first of three sessions. Therefore, even though he need not submit a new application and pay a new application fee, and though he need not submit new evidence of eligibility, he must again take and successfully pass all four sections of the examination. The three which he has already passed will no longer count. Ms. Berry asserts that Petitioner had the responsibility to call the Examination Branch and find out if he was eligible to sit if he had not received his admission card prior to the examination date. She relates that had he done so, he would have been advised of his qualification number and with that and identification, could have been admitted to take the examination if he had presented himself at the examination site on the date scheduled. This procedure outlined by Ms. Berry, however, is nowhere made known to any applicant and is not a requirement of the Board.
Recommendation Based on the foregoing findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner, Paul E. Curtis, be afforded an opportunity to sit for that part of the Contractor's examination that he has not already passed and that he not be required to take the entire examination over. RECOMMENDED this 20th day of January, 1989, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989. COPIES FURNISHED: Arnold D. Levine, Esquire 100 South Ashley Drive Suite 1600 Post Office Box 3429 Tampa, Florida 33601-3429 Clark R. Jennings, Esquire Assistant Attorney General Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
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 School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract"). On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2 Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did. As a result of his workers' compensation claim, Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro. On Mr. Navarro's third visit on February 8, 1999, Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released Mr. Navarro to full-duty work, with an impairment rating of zero percent. Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine Mr. Navarro subsequent to March 2, 1999. In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter. Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000. Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff. The School Board's personnel records show that Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending. The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7, through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000. In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000. Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work. In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish. Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail. Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000, Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions. On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to Ms. Gragg's office on April 17, 2000, to discuss the complaint. In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7 The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000, Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000. In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version. Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows: Job Knowledge You failed to effectively clean the "gang" bathrooms in the main building May 15- May 23, 2000. [Correct dates are April 15- April 23, 2000][8] You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.] Self Management/Self Motivation You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.] Interpersonal effectiveness You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9]. Ms. Gragg also noted on the annual evaluation form that Mr. Navarro had been absent 53 days during the 1999-2000 school year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave. The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form. In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether Ms. Gragg was reprimanding Mr. Navarro for excessive absences or for failing to call to inform her office of his absences on May 18 and 19, 2000. Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro. Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board. On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for Mr. Navarro with Dr. Phillips for June 8, 2000. Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10 Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave. Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely. Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI. Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work. On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send Mr. Navarro's work restrictions to her by facsimile. Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents, and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work. When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office. Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day. Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro. Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty. Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment. In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her office regarding these absences. This letter was prepared in both an English version and a Spanish version. On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day. Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from Mr. Camerino's office on June 19, 2000. On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work. Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version. The reasons given by Ms. Gragg for her refusal to approve Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000. Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay. Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds. In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers' compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately. Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband. Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him. Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence. Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her. Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment. After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk. Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board. Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter. After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay. Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9, 2000, through September 20, 2000, when he was suspended from his employment. Summary The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences. Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were insufficient or advised him that he had failed to provide the certifications timely. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board. Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9, 2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay of Miguel Navarro and terminating his employment with the School Board. DONE AND ENTERED this 22nd day of August, 2001, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2001.
Findings Of Fact Test Anxiety at the February 1994 General Contractor's Examination The General Contractor's Examination used in the licensing of individuals as general contractors is divided into three parts, each of which may be passed separately. Credit for passing any one portion of the examination is good for a period of only one year. An applicant for a license as a General Contractor is limited in taking any part of the examination to three times per year. If an applicant fails to pass all three parts of the examination in one year, therefore, the applicant must commence the examination process anew, as if none of the portions of the examination had been passed. On February 17, 1994, William T. Davenport, sat for the Contract Administration portion of the exam for the third time within a one-year period. At each of the two examinations taken earlier, he had passed one portion. The Contract Administration portion was the only part he had not yet passed. Mr. Davenport was anxious as he waited to take the exam. He fully realized that if he did not pass the Contract Administration portion he would have to start the examination process all over again. His concern was generated not only from the perspective of delay and inconvenience attendant to having to repeat the entire exam process, but also from the perspective of cost. Repeating the process would require him to pay the full exam fee after having paid already a full examination fee for each of three examinations in the year of his attempt to successfully complete the examination requirements for licensure. Different Approved Reference Lists The Construction Industry Licensing Board approves reference materials that applicants may use during the examination and issues a list of those materials periodically. The Reference List for the February examination covered the period between November 1, 1993 and February 28, 1994. On that list was a book Mr. Davenport brought with him to the examination: Practical Mathematics, 3rd Edition, Copyright 1972. As Mr. Davenport sat nervously awaiting commencement of the exam, a proctor removed Practical Mathematics from his desk indicating that use of the book was not allowed. Mr. Davenport relates his response to the incident in this way, (Tr. 26.) The anxiety was very high at that point. My concern was try to get through the exam and, when the book was taken away from me, I panicked, to be blunt. I just totally panicked. Unlike the testing period from November 1, 1993 to February 28, 1994, Practical Mathematics was not on the Reference List for the next period of testing, from March 1, through June 30, 1994. The later list, issued January 13, had been out for over a month at the time of the exam. It is likely the proctor removed the book in mistaken reliance on the later list. As it turned out, the proctor returned the book to Mr. Davenport either shortly before the examination commenced. As he did so, the proctor commented, "Well, I don't know." (Tr. 25.) Mr. Davenport did not use the book during the exam because, "[a]t that point, I was reluctant to use the book ... I didn't want the test to be invalidated and I didn't want to be challenged." Id. Not using the book proved to be critical to whether Mr. Davenport passed the Contract Administration portion of the exam. He scored a 68. A passing grade is 70. Had Mr. Davenport answered correctly question number 3, which was worth four points, he would have received a 72, a passing grade. The question involves applying a percentage. Mr. Davenport could not remember whether in obtaining a percentage it is necessary to multiply or divide. Practical Mathematics has a chapter on percentages. The chapter teaches that multiplication is the arithmetic method to use when obtaining a percentage. But Mr. Davenport guessed that division should be used. He divided by the percentage and, therefore, chose an incorrect answer. Question number 3 on the exam is one of the questions that Mr. Davenport challenged originally: A 2-man crew has consistently worked at a labor performance standard ratio of 0.85 to 1. They are selected for a job requiring 60 (standard time) man-hours to perform. They will NOT work more than 8 hours per workday. NO work will be done on Saturdays or Sundays. There are NO holidays during the time the work will be performed. According to Builder's Guide to Accounting, if the job must be finished NO later than Friday afternoon at 5:00 p.m., what is the last day that they could be scheduled to start the job? Thursday of the previous week Friday of the previous week Monday of the same week Tuesday of the same week Respondent's. Ex. No. 2. The correct answer is "(D) Tuesday of the same week." The Department's expert witness explained that the correct answer is reached by way of an algebraic formula. The formula is: "the labor performance standard ratio = x (the unknown) divided by the standard time man hours" and then that answer is divided by 2 since the crew is a 2 man crew. Applied to the problem, the formula is: .85/1 = x/60, with x, once known, divided by 2. Using the formula, the calculation goes as follows: .85/1 = x/60; multiplying both sides of the equation by 60, .85(60) = x; carrying out the arithmetic calculation, x equals 51; 51/2 = 25.5. It takes 25.5 hours, therefore, for the crew to complete the job. If, as the problem states, the job must be completed by Friday at 5 p.m. and the crew works 8 hours a day, then it will take the crew 3 full days and 1.5 additional hours to complete the job. Working backward from Friday, the crew will work 8 hours on Friday, 8 hours on Thursday, and 8 hours on Wednesday for a total of 24 hours. The crew must start on Tuesday of the same week to work the additional 1.5 hours required to complete the job. One does not need to use algebra, however, to solve the problem. One can simply obtain the number of actual hours needed to complete the job by applying 85 percent (the crew's labor performance standard) to the number of standard time manhours called for by the job, in this case, 60. Here is where Mr. Davenport needed Practical Mathematics. Not knowing whether to obtain the actual hours by multiplying .85 times 60 or dividing .85 into 60, he guessed, in error, division. Through the use of division, it appears incorrectly that the number of manhours needed is 70.588. Divided by two, to take into account that there are two members of the crew, it would take the crew 35.294 hours. If it took the crew 35 hours and a fraction to complete the job on time, the crew would need to start on Monday of the same week. "(C) Monday of the same week," is the answer chosen by Mr. Davenport. Other Distractions and the Site of the Exam The examination was conducted in the Tallahassee office of the National Assessment Institute (NAI). The NAI was under contract to the Department as the vendor to conduct the exam. At the time of the examination, the exam site was a room approximately forty feet by thirteen feet four inches in size. It contained nine tables, each 18 inches by eight feet. The tables were spaced 35 inches from each other. At each table were two straight-backed chairs. There were seven candidates present for the examination. The first and last tables were unoccupied. Each of the seven candidates were allotted 34 square feet of floor space to be occupied by the candidate, the chair, the table and materials used in the exam. On the east wall of the exam room were three plate glass fixed windows. Two of the windows are 48 inches long by 36 inches tall and one is 36 inches long by 31 inches tall. The glass is one-eighth inch thick non- commercial grade. The windows are acceptable under NAI guidelines. On the other side of the windows is a workroom that measured 15.25 by 17.5 feet. Through these windows the examination supervisor seated in the work room can monitor the performance of the proctors in the exam room and see the candidates as they take the exam. The candidates, seated to the left of the workroom, do not face the workroom. Rather, their right side is exposed to the workroom. If the tables are numbered 1 through 9 on Respondent's Ex. No. 1, beginning with 1 on the side of the room marked on the exhibit as "N" or north, candidates who were seated at tables 4 through 8 were directly exposed to the workroom windows. Mr. Davenport was seated at one of the tables exposed to the workroom windows, most likely table 3, 4 or 5, that is, one of the center 3 tables. During the exam, he could see employees through the windows moving in the workroom and hear noise from the workroom. There were four employees who were present at one time or another in the workroom. Three of these employees were also engaged in proctoring the examination. In addition to the visual diversion posed by the four employees in the workroom, Mr. Davenport could hear sounds emanating from the room. The doors to the workroom, open so that the exam supervisor seated in the workroom could hear what occurred in the exam room, also allowed sounds from the workroom into the exam room. The source of the sound was the printer working, the four workers conversing from time to time and other noises associated with an office work environment. Sight of the employees and noise from the workroom prevented petitioner from fully concentrating on the exam. Mr. Davenport was also distracted by the activities of the proctors while in the exam room. During the four hours he sat for the exam, three of the four employees he observed in the workroom were also acting as proctors. They left the workroom in a rotation in order to spell each other. During their shifts as proctors, the three monitored the exam room. Mr. Davenport felt distracted by the coming and goings of the three as they rotated in and out of the room. Although there was a table designated for the proctors at a corner outside the workroom across from table 3, they rarely sat there. They sat at one of the empty tables or walked beside the seated candidates, all the time carrying out the function of a proctor: observing the candidates during examination. The FCILB Examination Administration Manual, applicable to the February General Contractor's exam, details the responsibilities of proctors in sixteen separate counts. No. 13 reads: Proctors observe at all times and move quietly about the room. Proctors do not disturb or distract candidates during the examination. If speaking is necessary, a proctor needs to be quiet and brief as possible. Proctors avoid asking candidates to move chairs to get around them, standing too close or directly behind candidates, or rustling papers and talking to other proctors in the vicinity. Petitioner's Ex. No. 2, FCILB Examination Administration Manual, p. 2-5. Movement of the proctors was necessary during the exam because of its open-book format. It is incumbent on the proctors of an open-book exam to insure that candidates do not copy questions form the examination into their reference materials. Other Candidates Reactions to the NAI's Tallahassee Office Among the three proctors the day of the exam was Ms. Jean Love. Ms. Love is also the Office Manager of the NAI's Tallahassee Office. She has worked for NAI for over two years. Before that she worked for eight and one-half years with the Department in examination services, during which she administered exams, including acting as a proctor for exams. In addition to the daily operations of the office, she oversees the administration of examinations, a function she fulfilled at the February General Contractor's exam this year. Ms. Love did not see any unusual or distracting activities on the part of the other two proctors and did not undertake any activities, in her opinion, that would have violated any of the responsibilities of proctors, including those quoted, above, from the FCILB Examination Administration Manual. The activities during the exam in the workroom, undertaken under Ms. Love's supervision, were normal activities undertaken every day at the NAI Tallahassee Office during and outside of times of examinations. Aside from typical office activities, such as conducting telephone conversations, scheduling candidates for tests, and doing paperwork that included hand-folding documentation, there was no unusual activity the day of the exam. The only event in the workroom that contributed at all to the sound of normally quiet office activity was the validation of a single candidate's check. No complaints about noise in the workroom during the February General Contractor's Exam were registered with the NAI Tallahassee Office. Nor did any of the candidates that day complain about the activities of the proctors. Ms. Love did not learn of Mr. Davenport's complaint until after he filed his challenge to the examination questions. While a proctor may have from time to time stood near Mr. Davenport as he took the exam, none of the proctors hovered over him or, in Ms. Love's opinion, did anything that would distract the average candidate. No complaint during the examination was made by Mr. Davenport. He did not complain about inability to concentrate on the exam until after he received the exam results. During Ms. Love's two years at the NAI Tallahassee office, no candidate, prior to Mr. Davenport, had ever complained about the testing environment for any reason. The comments she has received from candidates following exams have been solely complimentary. Over the last two years, the office has administered between 15 and 20 tests per month. Complimentary comments are made, on average, by one candidate per test. In the last two years the office has received, at a minimum, well in excess of 350 compliments on the testing environment from candidates. In contrast, Mr. Davenport's complaint stands alone as the only complaint about the office testing environment in the last two years at the NAI's Tallahassee Office.
Recommendation It is, accordingly, RECOMMENDED, in the alternative: That petitioner's request for reexamination or a passing grade on the "Contract Administration, Division I" portion of the General Contractor's examination administered in February 1994 be DENIED; or, in the alternative, If the Construction Industry Licensing Board is willing to overlook the petitioner's failure to challenge his grade specifically on the appropriation of the book before the examination in the petition for formal hearing and the Department's legitimate objection to the presentation of evidence on the issue, that petitioner be allowed to sit for reexamination and, if he passes the Contract Administration portion of the exam, be credited with passing the other two portions of the exam as well as if all three portions had been passed in one year. DONE and ENTERED this 1st day of December, 1994. DAVID M. MALONEY 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 1st day of December, 1994. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 9, 10, 12, and 13 are adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 1, the first and last sentences are adopted. The remainder of the proposed finding, and in particular the reference to Linda Chaffin, test proctor, is rejected because it is either not supported by the evidence or argumentative in nature rather than factual. Petitioner's proposed finding of fact No. 2 is rejected as against the weight of the evidence. Petitioner's proposed finding of fact Nos. 7 and 8 are rejected as unsupported by the evidence. With respect to petitioner's proposed finding of fact No. 11, the reference to Linda Chaffin is rejected. Ms. Chaffin was not identified by the evidence as the proctor who removed the book from petitioner prior to the exam. Respondent's proposed findings of fact are adopted, in substance, insofar as material. COPIES FURNISHED: William T. Davenport 336 14th Avenue, North Jacksonville, FL 32250 William W. Woodyard Assistant General Counsel D B P R 1940 North Monroe Street Tallahassee, FL 32399-0750 Richard Hickok, Executive Director C I L B 7960 Arlington Expy., Ste. 300 Jacksonville, FL 32311-7467 Jack McRay General Counsel D B P R 1940 North Monroe Street Tallahassee, FL 32399-0750
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Board of Accountancy (the "Board" or the "Florida Board"), is liable to Petitioner, David C. Hastings, for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
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: Respondent, the Board of Accountancy, is the state agency charged with the responsibility to regulate the practice of certified public accountants licensed within the state. Chapter 473, Florida Statutes. One of the Board's duties is to certify applicants for licensure to the Department of Business and Professional Regulation. An applicant may seek licensure by passing the Florida examination prescribed by Section 473.306, Florida Statutes, or may seek licensure by endorsement as prescribed by Section 473.308(3), Florida Statutes. Section 473.308(3), Florida Statutes, provides (emphasis added): The board shall certify as qualified for a license by endorsement an applicant who: 1. Is not licensed and has not been licensed in another state or territory and who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed such continuing education courses as the board deems appropriate, within the limits for each applicable 2-year period as set forth in s. 473.312, but at least such courses as are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement; or 1. a. Holds a valid license to practice public accounting issued by another state or territory of the United States, if the criteria for issuance of such license were substantially equivalent to the licensure criteria which existed in this state at the time the license was issued; or b. Holds a valid license to practice public accounting issued by another state or territory of the United States but the criteria for issuance of such license did not meet the requirements of subparagraph a., who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed continuing education courses which are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement. The Uniform CPA Examination, prepared by the Board of Examiners of the American Institute of Certified Public Accountants, is administered throughout the United States and constitutes the primary means by which state boards of accountancy determine the competence of CPA candidates. The "substantially equivalent" language of Section 473.308(3)(b)1.a, Florida Statutes, underscored above, has been interpreted since at least 1981 as requiring a candidate for licensure by endorsement to demonstrate that his grade on the Uniform CPA Examination would have been a passing score in Florida at the time he sat for the examination. See Cohen v. State Board of Accountancy, DOAH Case No. 80-2332 (Recommended Order, June 22, 1981). The Uniform CPA Examination consists of four sections. Since at least 1949, Florida has required that a candidate pass each section of the examination with a score of 75 or better. Cohen involved a candidate for licensure by endorsement who was a CPA licensed in the State of Pennsylvania. The evidence established that the Pennsylvania Board of Accountancy had determined to accept Mr. Cohen's score on the Uniform CPA Examination as passing, though he had failed to reach a score of 75 on two of the four sections. The Florida Board of Accountancy preliminarily denied Mr. Cohen's application because the criteria applied by the Pennsylvania board were not "substantially equivalent" to the Florida licensure criteria. The DOAH Hearing Officer recommended that the denial be upheld, and the agency's final order adopted that recommendation. Martha P. Willis, the director of the Division of Certified Public Accountants, testified that the Board had also become aware that the State of Illinois had a practice of averaging the four sections of the examination to arrive at a passing score, rather than requiring a score of 75 or better on each section. Ms. Willis testified that, from at least the early 1980's until 1996, the Board required any candidate for licensure by endorsement to submit his or her actual scores from the Uniform CPA Examination, to provide assurances that the candidate's score would have constituted a passing grade in Florida at the time the exam was administered. Candidates who could not provide evidence of their exam scores would have their applications denied. No evidence was presented to establish that this practice was ever codified by rulemaking. In 1996, the Board decided that outright denial was too onerous an outcome for a candidate who is licensed as a CPA in another state but who is unable to provide evidence of his actual examination scores. Since 1996, the Board has issued a license to such a candidate, but placed the candidate on probation for a period of one year, pending a practice review to ensure that the candidate possesses the technical ability and ethical attributes expected of a Florida CPA. Upon successful completion of the practice review, the probation is lifted and the candidate is fully licensed. The Board has not codified this practice through rulemaking. Mr. Hastings is a Virginia-licensed CPA. At all times relevant to this proceeding, he has owned and operated Hastings & Associates, P.A. in Pinellas County. Aside from a secretary, Mr. Hastings constitutes the entire workforce of Hastings & Associates, which has historically performed uncomplicated bookkeeping for individuals and small businesses. At all times relevant to this proceeding, Mr. Hastings' combined business and personal assets were less than $2 million. Seeking licensure by endorsement, Mr. Hastings wrote a letter dated May 10, 2001, authorizing the State Board of Accountancy of the Commonwealth of Virginia (the "Virginia Board") to release his regulatory records and test scores to the Florida Board. On May 25, 2001, the Virginia Board sent a letter to the Florida Board. The letter verified that Mr. Hastings had passed each section of the Uniform CPA Examination with a score of 75 or better, but also stated: "due to Virginia file retention schedule no other information available." The letter verified that Mr. Hastings had passed the Ethics Examination with a score of 90 percent or better, and that no record existed that Mr. Hastings had been found guilty of any violation by the Virginia Board. On June 22, 2001, Mr. Hastings submitted to the Florida Board an application for licensure by endorsement. On his application, Mr. Hastings answered affirmatively that he had unlawfully held himself out as a CPA in Florida prior to licensure. The Division of Certified Public Accountants investigated and found instances of Mr. Hastings having been disciplined in 1995 and 1998 for holding himself out as a CPA in Florida. No evidence was presented that Mr. Hastings' prior discipline caused the Board to treat him any differently than it did other candidates unable to verify their exact scores on the Uniform CPA Examination, and therefore no detailed findings are necessary on these incidents, which involved use of a business card stating that Mr. Hastings was a CPA. Some time passed after filing the application, and Mr. Hastings became concerned as to its status. He communicated with Board staff, who told him the delay was due to the fact that his exact examination scores had not been provided by the Virginia Board. At Mr. Hastings’ behest, the Virginia Board sent a second letter to the Florida Board, dated August 15, 2001. This letter restates that Mr. Hastings passed the Virginia Uniform CPA Examination, and adds: A search of the Board's records reveals that Mr. Hastings was selected for renewal in 1984, so he was initially licensed in 1983 or earlier. In order to qualify for licensure in Virginia before 1984, the Board's 1981 regulation 5.01.03.05 states that "a grade of at least seventy-five shall be necessary for passing" the CPA examination. On September 7, 2001, the Board adopted a staff recommendation that Mr. Hastings be granted a Florida CPA license with a one-year probationary period and practice review. Mr. Hastings received no prior notice of the Board's action. By letter dated September 21, 2001, Ms. Willis informed Mr. Hastings of the Board's action. The letter stated, in relevant part: One of the requirements for licensure is providing evidence of successful passage of the AICPA Uniform CPA Exam. According to the Virginia Board of Accountancy, due to the retention schedule, the exact exam dates and scores are not available, only that the applicant passed all four parts of the Uniform CPA exam with a score of 75% or above. The Board, at the September 7, 2001 meeting, reviewed your application for CPA licensure and determined you would be issued a license with stipulations. The Board's stipulations are listed in the Order. Accordingly, the stipulations outlined in the Order must be adhered to. The referenced Final Order, dated September 27, 2001, set forth the following conditions: . . . Respondent must notify the Board when employment in Florida commences, at which time he will be placed on one-year probation. A review must be done prior to the end of the probation period. The review shall include five (5) tax returns, three (3) compilations including any work papers and any audits or reviews if they have been performed. If the review has not been completed and presented to the Board, probation will be extended until the review is presented to the Board, at which time the Board may remove the probation or take such further action, as it deems necessary. This review will be conducted by a CPA/Consultant assigned by the Board and will be at Respondent's expense. Mr. Hastings again contacted the Virginia Board concerning his score, and received a letter dated October 24, 2001, from Nancy Taylor Feldman, the executive director of the Virginia Board. Ms. Feldman's letter stated, in relevant part: I have on several occasions in the past two months provided information to the Florida Board of Accountancy regarding your licensure status and Uniform CPA examination scores in the Commonwealth of Virginia. In my latest effort to explain that the Virginia Board of Accountancy had provided written documentation to the Florida Board of Accountancy that you passed the Uniform CPA examination for Virginia with a grade on each of the four parts of at least 75, I was provided some insight into the action by the Florida Board of Accountancy. A staff member stated that because of the fire in New Jersey Department of Professional Regulation about ten years ago that destroyed all regulant [sic] records, the Florida Board of Accountancy had established a policy that if actual examination grades could not be provided from another state, there would be a probationary period established for those who wanted to be obtain [sic] a CPA license there. I explained that if a candidate could not show proof that they had completed the Uniform CPA examination with a grade of at least 75 that a license could not be issued in Virginia, either. However, I explained that the Virginia Board had provided certification of your licensure status to the Florida Board of Accountancy and that our Board records substantiated that you received a grade of at least 75 on each of the four parts of the examination. As I indicated to you, the Board does not have your examination record card from the mid-1970s when you successfully completed the Uniform CPA examination and became licensed in Virginia. This morning, I personally reviewed the official minutes of the Board of Accountancy that are housed at the Virginia State Library. The minutes of the Board's meeting in April 1974 indicated by name, David C. Hastings, that your license application was approved by the Board, and you were granted Certificate Number 3883. It stated that you were a resident of Richmond, Virginia. Further in support of the statement by the Virginia Board of Accountancy that you passed each of the four parts of the Uniform CPA examination with a grade of at least 75, Board Regulations 54-92-5 effective October 15, 1970, 54-92-5 effective November 15, 1972 and POR 3-28 effective February 15, 1975 require a grade of at least 75 to pass the Uniform CPA examination. The Board did not make adjustments in examination grades as the regulations did not provide any discretion to the Board to raise or lower the grade required to pass the examination . . . . As you are aware, last week, I contacted the American Institute of Certified Public Accountants (AICPA) in an effort to locate your grades. The AICPA owns the Uniform CPA examination and that organization has the grades for all candidates. The AICPA is not permitted to retain the grades with the name and social security number of the examination candidate. A candidate ID number is issued at the time of registration to take the examination. AICPA can locate the grades for you with the ID number. Unfortunately, the Virginia Board does not have your candidate ID number and it is understandable that after nearly thirty years, you do not have that information . . . . (emphasis in original) On October 26, 2001, counsel for Mr. Hastings filed a petition for formal administrative hearing contesting the Board's decision to impose probationary status on Mr. Hastings' license. The petition asserted that the Board's rules made no provision for placing a licensee on probation for the reasons stated in Ms. Willis' letter of September 21, 2001, and that the Board's action was therefore based on an invalid non-rule statement or policy. The petition also claimed entitlement to reasonable costs and attorney’s fees under Section 57.111, Florida Statutes. Upon advice of the Board's counsel, Ms. Willis did not forward the petition to the Division of Administrative Hearings. Rather, she placed it on the agenda for the next regularly scheduled public meeting of the Board on December 17, 2001. Mr. Hastings was notified of this action by letter from Board staff dated November 6, 2001. On or about December 7, 2001, Ms. Willis approved a staff recommendation to the Board that Mr. Hastings' petition be denied and that the Board decline to remove his probationary status. However, at some point prior to the Board meeting, Ms. Willis had a telephone conversation with Ms. Feldman of the Virginia Board. Ms. Feldman conveyed to Ms. Willis essentially the same information contained in her October 24 letter to Mr. Hastings: that she had reviewed the minutes from the Virginia Board meeting at which Mr. Hastings was licensed, and that Mr. Hastings was approved for license pursuant to standards substantially equivalent to the contemporaneous Florida standards, but that she could not locate Mr. Hastings' exact scores on the Uniform CPA Examination. Ms. Willis testified that her conversation with Ms. Feldman served to distinguish this case from the blanket practice of requiring a probationary period for candidates unable to produce exact scores. The distinguishing factor was Ms. Feldman's assurance that Virginia's loss of Mr. Hastings' scores was a unique case, not a statewide problem or practice. At the December 17, 2001, Board meeting, Ms. Willis stated: . . . One thing I would like to clarify that in the correspondence that is in here is some point where I make reference to the Virginia Board of Accountancy-- their problem in this instance is that apparently they just lost that information relating only to Mr. Hastings. As you know we have instances in the past where some states have lost lots of information relating to lots of licensees because of floods and fires and whatever that does not appear to be the problem with Virginia. It doesn't appear that it would affect a lot of other people just in Mr. Hastings [sic] instance they have been unable to find out although they have given us assurances that their requirements are-- you have to have a grade of at least 75 or above in order to be licensed in Virginia. No explanation was offered for the apparent contradiction between this explanation and the Virginia Board’s initial statement that Mr. Hastings’ scores were unavailable “due to Virginia file retention schedule,” which appeared to imply a general practice of discarding old test scores. Moments later, the Board's counsel reiterated the widespread alteration and averaging of scores received from Pennsylvania and Illinois, pointing out that "there was history of not just losing information but also substantive problems." Counsel stated, "To my knowledge there has not been an issue in Virginia. I don't think we've ever seen where Virginia lost the grades in the first place. There has been no history in Virginia that there has been any changing of grades or modification of grades " After this discussion, the Board adopted a motion "to remove the requirement for probation due to the fact that the loss of [Mr. Hastings'] grades by Virginia appears to be an isolated instance." On January 15, 2002, a Board order was entered rescinding the stipulations previously placed on Mr. Hastings' Florida CPA license. The Board is an "agency" as defined in Section 57.111, Florida Statutes; the Board initiated an administrative proceeding against Mr. Hastings in that it was required by law or rule to advise Mr. Hastings of a clear point of entry after it issued his probationary license, a "recognizable event in the investigatory or other free-form proceeding of the agency," as set forth in Section 57.111(3)(b)3, Florida Statutes; and the Board was not a nominal party. On March 14, 2002, Mr. Hastings filed the Petition in the instant case. An Affidavit of Fees and Costs Expended was attached to the Petition in which it is represented that attorney's fees in the amount of $1,459.00 and costs of $270.00 were reasonably incurred in the underlying case between October 18, 2001 and January 28, 2002. Also attached to the Petition was a Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $462.00 were reasonably incurred between January 29, 2002 and February 28, 2002. On May 8, 2002, Mr. Hastings filed a Second Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $2,142.00 and costs of $176.00 were reasonably incurred between March 7, 2002 and April 30, 2002. The affidavits and expert testimony offered at the hearing establish that the claimed fees totaling $4,063.00 and costs totaling $908.00 were reasonably incurred.
