97-002474
St. Petersburg Junior College vs.
Jeffrey D. Brooks
Status: Closed
Recommended Order on Friday, April 24, 1998.
Recommended Order on Friday, April 24, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ST. PETERSBURG JUNIOR COLLEGE, )
13)
14Petitioner, )
16)
17vs. ) Case No. 97-2474
22)
23JEFFREY D. BROOKS, )
27)
28Respondent. )
30___________________________________)
31RECOMMENDED ORDER
33Pursuant to notice, a formal hearing was conducted in this
43case on January 7, 1998, in St. Petersburg, Florida, before
53Lawrence P. Stevenson, a duly designated Administrative Law Judge
62of the Division of Administrative Hearings.
68APPEARANCES
69For Petitioner: Maria N. Sorolis, Esquire
75Shannon B ream, Esquire
79Allen, Norton and Blue
83Hyde Park Plaza, Suite 350
88324 South Hyde Park Avenue
93Tampa, Florida 33606
96For Respondent: Mark Herdman, Esquire
101Herdman and Sakellarides
1042595 Tampa Road, Suite J
109Tampa, Florida 34684
112STATEMENT OF THE ISSUE
116The issue presented for decision in this case is whether
126Petitioner, St. Petersburg Junior College, should dismiss
133Respondent from his employment and terminate his continuing
141contract.
142PRELIMINARY STATEMENT
144By a Pet ition and Notice to Respondent of Hearing Rights
155(the Petition) filed with the Board of Trustees of St.
165Petersburg Junior College (the Board) on May 8, 1997, pursuant
175to Rule 6A-14.0411(4), Florida Administrative Code, Petitioner
182petitioned the Board for the dismissal of Respondent from all
192employment at St. Petersburg Junior College (the College),
200effective as of the expiration of Respondents term of employment
210for the 1996-97 college year.
215By letter to the Board dated May 13, 1997, Respondent
225requested a formal administrative hearing regarding the proposed
233termination of his employment, and requested that the Petition be
243forwarded to the Division of Administrative Hearings for
251assignment of an Administrative Law Judge to hear the case. By
262letter dated May 20, 1997, Petitioner forwarded the Petition to
272the Division of Administrative Hearings for assignment of an
281Administrative Law Judge and the conduct of a formal
290administrative hearing in this matter, pursuant to Section
298120.57(1), Florida Statutes.
301The case was originally assigned to Judge J. Lawrence
310Johnston and scheduled for hearing on August 13, 1997. Upon
320joint motion by the parties, the hearing was continued and
330rescheduled for January 7, 1998. Due to scheduling conflicts,
339the case was reassigned to the undersigned prior to the final
350hearing.
351At the final hearing, Petitioner presented the testimony of
360Carl M. Kuttler, Jr., President of St. Petersburg Junior College;
370Myrtle H. Williams, Associate Provost of the Gibbs Campus of St.
381Petersburg Junior College; Charles L. Roberts, Provost of the
390Gibbs Campus; George M. Greenlee, an instructor at St. Petersburg
400Junior College; and Kimberly Zemola, a former student at St.
410Petersburg Junior College. Respondent testified in his own
418behalf, and also presented the testimony of Ernest Hensley, Mel
428Stone, and George Leonard, instructors at St. Petersburg Junior
437College; and Ray S. Wilson, a retired instructor at
446St. Petersburg Junior College.
450Petitioners Exhibits 1-6 were admitted into evi dence.
458Respondents Composite Exhibit 1 was admitted into evidence.
466A transcript of the final hearing was filed at the Division
477of Administrative Hearings on February 3, 1998, and the parties
487filed proposed recommended orders on March 5, 1998.
495FINDINGS OF FACT
498Based on the oral and documentary evidence adduced at the
508final hearing, and the entire record in this proceeding, the
518following findings of fact are made:
5241. Respondent is an instructor in computer programming and
533networking at the College.
5372. Respondent has been an instructor at the College since
5471983. Since the 1986-87 academic year, Respondent has worked
556under a continuing contract of employment. A continuing contract
565is tantamount to a tenured position, entitling the instructor to
575maintain his position from year-to-year unless terminated by
583mutual consent, by the instructors resignation, or by the
592suspension or removal of the instructor for cause pursuant to the
603statutes and rules of the State Board of Education.
6123. Respondent has recei ved at least above-average
620evaluations of his job performance both from the institution and
630from his students during his tenure at the College. Respondent
640has not been subject to disciplinary proceedings of any kind
650prior to or since the incidents giving rise to this proceeding.
6614. Kimberly Zemola, a married woman in her late twenties,
671was a student in Respondents classes during Session II and
681Session III of the 1994-95 academic year.
6885. In January 1995, while she was a student in Respondents
699class, Ms. Zemola wrote an anonymous note to Respondent
708suggesting that they commence a relationship and that Respondent
717should indicate his interest by wearing a certain sweater to
727class on a certain day.
7326. Respondent wore the sweater as suggested in the note.
742Respondent testified that his purpose in doing so was not to
753initiate a relationship, but to identify the author of the note,
764discover her problem, and direct her into obtaining assistance.
7737. Respondent and Ms. Zemola met. Their testimony was
782consistent in describing that they were both involved in troubled
792marriages, spent a great deal of time discussing their problems
802with each other, and, over a period of weeks, became close
813friends and confidants. During the period of January through May
8231995, the relationship was not sexual, though there was some
833holding of hands and kissing during their meetings.
8418. During the summer session of 1995, while Ms. Zemola was
852a student in Respondent's class, Respondent and Ms. Zemola
861engaged in consensual sex. Both Respondent and Ms. Zemola
870testified that this occurred on only one occasion, in June 1995.
8819. Respondent and Ms. Zemola continued their relationship
889until December 1995, at which point Ms. Zemola ended it.
89910. Ms. Zemola testified that in January 1996, after she
909ended the relationship with Respondent, she was diagnosed as
918clinically depressed. She testified that she believed Respondent
926took advantage of her depressed condition in pursuing a
935relationship with her.
93811. Respondent testified th at Ms. Zemola mentioned suicidal
947thoughts on one occasion in late 1995, and that she revealed to
959him that she had been addicted to drugs and was a victim of child
973abuse. Nonetheless, Respondent testified that he had no
981knowledge Ms. Zemola was fighting depression during the period of
991their relationship.
99312. In January 1996, John Zemola, the husband of Kimberly
1003Zemola, phoned Myrtle Williams, Associate Provost of the Gibbs
1012Campus, to complain that Respondent had an affair with his wife.
1023Ms. Williams testified that Mr. Zemola was very agitated, so she
1034invited him to her office to discuss the matter.
104313. Mr. Zemola met in person with Ms. Williams, and a
1054little later in the day had a second meeting with both
1065Ms. Williams and Charles Roberts, the Provost of the Gibbs
1075Campus. Ms. Williams and Dr. Roberts testified that Mr. Zemola
1085was very agitated and upset, expressing a great deal of anger
1096toward Respondent. Mr. Zemola repeatedly demanded to know what
1105the College was going to do about the situation.
111414. Shortly after his meeting with Mr. Zemola, Dr. Roberts
1124called Respondent and asked him to come over to his office. Dr.
1136Roberts testified that his main concern in calling Respondent was
1146to warn him of Mr. Zemolas angry and agitated state.
1156Dr. Roberts also alerted campus security of the situation.
116515. At this meeting with Dr. Roberts, Respondent openly and
1175voluntarily acknowledged his relationship with Ms. Zemola,
1182including the romantic aspects thereof. The only discrepancy was
1191that Respondent recalled the sexual encounter as having occurred
1200after Ms. Zemola was a student in his class, whereas Ms. Zemola
1212recalled that it occurred when she was a student in Respondents
1223class.
122416. Ms. Williams and Dr. Roberts investigated the matter
1233further, attempting to set up a meeting with Ms. Zemola herself.
1244It took them roughly ten days to two weeks to set up this
1257meeting, which finally occurred in Dr. Roberts office. Present
1266at the meeting were Dr. Roberts, Ms. Williams, and the Zemolas.
127717. At this meeting, Ms. Zemola acknowledged the
1285relationship with Respondent, and acknowledged that it was she
1294who initiated it. Both of the Zemolas were adamant that
1304Respondent should not be permitted to continue teaching at the
1314College.
1315\\ 18. Mr. Zemola in particular seemed intent on seeing
1325Respondent punished. Ms. Williams testified that Mr. Zemola
1333telephoned her all the time talking about what are we going to
1345do about Mr. Brooks.
134919. Mr. Zemolas threatening demeanor led Ms. Williams to
1358move Ms. Zemolas classes to a different campus, so that
1368Respondent and Ms. Zemola would not be in each others presence.
1379Ms. Williams testified that this precaution was taken, not
1388because of Respondent or Ms. Zemola, but because of John Zemola.
139920. No evidence was presented that Respondent ever
1407attempted to contact Ms. Zemola after she ended the relationship.
141721. In January 1996, Ms. Williams began attempting to get
1427Ms. Zemola to sign an affidavit stating the facts of the
1438situation. Ms. Zemola initially declined to do so, her stated
1448reason being that she feared Respondents influence in the local
1458market could jeopardize her academic future.
146422. No evidence was presented that Respondent ever took any
1474action to adversely affect Ms. Zemolas academic standing or
1483career, either within or outside of the College setting.
149223. In a memorandum to Respondent, dated February 8, 1996,
1502Dr. Roberts recounted the details of the charges leveled by the
1513Zemolas, as well as Respondents admissions regarding his
1521relationship with Ms. Zemola. The memorandum recited portions of
1530the Colleges Sexual Harassment Policy and Definitions (the
1538Policy). Under the Policy, sexual harassment is defined as:
1547An employees or a students unwelcome sexual
1554advances, requests for sexual favors, and
1560other verbal or physical conduct of a sexual
1568nature, sexually related jokes, display of
1574pornographic material in the workplace or an
1581academic or student setting (An academic or
1588student setting includes all settings on
1594campus, off-campus clinical programs, off-
1599campus courses, and off-campus college-
1604sponsored events), when
16071. submission to such conduct is made
1614explicitly or implicitly a term or condition
1621of an individuals employment or an
1627individuals treatment as a student;
16322. submission or rejection of such conduct
1639by an individual is used as the basis for
1648employment decisions or the treatment of a
1655student affecting such individual; or
16603. such conduct has the purpose or effect of
1669unreasonably interfering with an individuals
1674work or a students academic performance or
1681creating a sexually intimidating, hostile or
1687offensive working or academic environment.
169224. The definition quoted above does not apply to the
1702conduct alleged against Respondent, though a later section of the
1712Policy, labeled Instructor-Student Relationships, appears to
1719broaden the definition, as indicated in the relevant portion
1728quoted below:
1730This rule applies to instructor-student
1735relationships.
1736In the instructor-student context, the term
1742sexual harassment has a broader impact. The
1749fundamental element of such behavior is the
1756inappropriate personal attention, including
1760romantic and sexual relationships with a
1766student by an instructor or staff member who
1774is in a position to determine a students
1782grade or otherwise affects the students
1788academic advancement. Because the
1792instructor-student relationship is one of
1797professional and client, the above
1802inappropriate behavior is unacceptable in a
1808college; it is a form of unprofessional
1815behavior which seriously undermines the
1820atmosphere of trust essential to the academic
1827setting.
182825. Both President Kuttler and Dr. Roberts testified that,
1837in their opinion, the language quoted in the preceding paragraph
1847broadened the definition of sexual harassment as applied to the
1857instructor-student relationship, such that any form of romantic
1865or sexual relationship between an instructor and a student
1874constitutes sexual harassment, at least when the instructor is in
1884a position to determine the students grade or otherwise affect
1894the students academic advancement.
189826. The Policy also forbids retaliation against any person
1907who has filed a complaint or complained about sexual harassment.
1917No evidence was presented indicating that Respondent took any
1926retaliatory action against Ms. Zemola.
193127. The Policy states that discipline for violation of its
1941provisions will depend on the nature of the incident, but that
1953the range of such discipline is from admonishment to dismissal.
196328. The February 8, 1996, memorandum goes on to state that,
1974because of the seriousness of the alleged violations and because
1984a violation of the Policy could lead to a recommendation of
1995suspension or dismissal, Dr. Roberts was scheduling a meeting on
2005February 13 with Ms. Williams, Martha Adkins, who was the
2015Assistant Director of Business Technologies, and Nevis
2022Herrington, Vice President of Human Resources, for the purpose of
2032permitting Respondent to tell his side of the story in full.
204329. Ms. Williams was the only witness who testified as to
2054the February 13 meeting, but her recollection was unclear as to
2065the details of this meeting as distinguished from others
2074involving Dr. Roberts, Respondent, and her. She recalled
2082generally that Respondent was made aware of the Policy and
2092potential penalties for violation thereof.
209730. Some delay ensued in the disciplinary process, because
2106Dr. Roberts and Ms. Williams were waiting for the affidavit from
2117Ms. Zemola, which was not forthcoming as spring turned into
2127summer of 1996. At length, Dr. Roberts issued a memorandum to
2138Respondent, dated August 13, 1996, and titled Reprimand.
214631. In the memorandum of reprimand, Dr. Roberts found that
2156the facts to which Respondent had already admitted, characterized
2165by Dr. Roberts as a romantic relationship, including sexual
2174relations, following the time that the student was a student in
2185your class, were sufficient to warrant a written admonishment.
219532. The memorandum stated that there were certain
2203mitigating factors that caused Dr. Roberts not to recommend
2212suspension or dismissal: that the students initiating the
2220contact led to the relationship; that, according to Respondent,
2229no romantic relationship or sexual relationship occurred while
2237Ms. Zemola was Respondents student; and that Ms. Zemola had thus
2248far refused or failed to provide her version of the facts in
2260writing.
226133. However, Dr. Roberts memorandum went on to state:
2270On the other hand, if the student had
2278confirmed in an Affidavit what she originally
2285advised us took place, I do not believe that
2294I would have any choice but to consider
2302recommending dismissal since such conduct
2307would be a gross and direct violation of the
2316Colleges Sexual Harassment Policy. Such
2321conduct would not only be in violation of the
2330Colleges Sexual Harassment Rule and
2335Procedure but it would be unprofessional,
2341immoral and constitute misconduct in office.
2347Should confirming or additional information
2352come forward to support the verbal statements
2359we were given by the student and her husband,
2368further consideration of an additional
2373discipline including up to dismissal will be
2380necessary . (Emphasis added.)
238434. The August 13, 1996, memorandum placed dispositive
2392emphasis on the timing of the romantic and/or sexual relationship
2402between Respondent and Ms. Zemola. As of August 13, Dr. Roberts
2413accepted Respondents version of the facts, i.e., that the
2422romantic and sexual aspects of the relationship occurred after
2431Ms. Zemola was a student in Respondents class. Dr. Roberts
2441found that this version, while contrary to the spirit of the
2452Policy, and constituting misconduct in office and immorality,
2460merited only a written admonishment. Dr. Roberts testified that
2469the power relationship is there whether the student is a student
2480in that individuals class or not, somewhat contradicting the
2490distinction he drew in his memorandum regarding the timing of the
2501affair and its impact on the proposed discipline.
250935. Dr. Roberts testified that the admonishment was based
2518on his judgment that Respondents relationship with the student
2527violated the Policy in terms of creating a threatening or
2537offensive or intimidating environment. He testified that
2544Ms. Zemola had clearly complained that she felt intimidated and
2554reluctant to take classes.
255836. Dr. Roberts conclusion in this regard was based on
2568Ms. Zemolas subjective apprehensions. No evidence was produced,
2576at any point in these proceedings, that Respondent engaged in any
2587behavior that could have caused Ms. Zemola to feel intimidated
2597or reluctant to take classes.
260237. Ms. Zemola testified that she heard students at other
2612campuses discussing the incident, and that an instructor in one
2622of her classes talked about the case in front of the class. She
2635believed that Respondent was the source of these persons
2644knowledge of the situation.
264838. Ms. Zemola offered nothing more than her suspicions in
2658this regard, and Respondent resolutely and credibly denied having
2667discussed the affair with students or fellow instructors.
267539. In fact, the weight of the credible evidence leads to
2686the finding that John Zemola was the likely source of any campus
2698gossip regarding the incident. On at least one occasion,
2707Mr. Zemola disrupted a College class by writing accusations
2716against Respondent on the blackboard.
272140. Dr. Roberts August 13 reprimand memorandum left open
2730the possibility that further disciplinary measures might be
2738taken, should Ms. Zemola come forward with a sworn affidavit
2748confirming her version of the timing of the romantic and sexual
2759aspects, i.e., that they occurred while she was a student in
2770Respondents class.
277241. In a sworn af fidavit dated October 24, 1996, Ms. Zemola
2784attested that, while she was a student in Respondents classes
2794during Session II, 1994-95, they had an affair which consisted of
2805a great amount of time talking, and some time kissing, hugging,
2816and holding hands. She attested that during Session III, 1994-
282695, while she was still a student in Respondents class,
2836Respondent told her that if our affair did not go any further,
2848then it had to end. She attested that at this time she was
2861constantly fighting suicidal thoughts, and believed that if she
2870lost Respondent, the only person she could talk to, she might no
2882longer be able to fight those thoughts. Therefore, during
2891Session III, 1994-95, she engaged in a single sexual encounter
2901with Respondent.
290342. By memorandum dated December 11, 1996, Dr. Roberts
2912informed Respondent that the affidavit has been filed and offered
2922Respondent an opportunity to meet with Dr. Roberts and two other
2933officials to respond to the allegations and share your side of
2944the story. There is no record evidence that this meeting ever
2955took place.
295743. On May 8, 1997, the College filed the Petition. The
2968essential allegation was framed as follows:
2974a. The faculty member entertained romantic
2980and sexual relations with a student while
2987that student was in the faculty members
2994class. This relationship continued after the
3000student was no longer in the faculty members
3008class for a period of several months while
3016the student continued her course of education
3023at the College. Such conduct therefore
3029occurred during a time when the faculty
3036member could influence and affect the
3042students academic advancement.
304544. In addition to the allegations regarding Respondents
3053romantic and/or sexual relationship with Ms. Zemola, the Petition
3062alleged:
3063b. The faculty member thereafter encouraged
3069students of his to pressure the woman with
3077whom he had had the romantic relationship to
3085refrain from stating charges against him in
3092order that it not jeopardize the faculty
3099members career.
3101Petitioner offered no evidence to support this allegation, and it
3111is thus assumed that it has been dismissed.
311945. The remaining factual allegations contained in the
3127Petition are for the most part conclusions alleged to arise from
3138Respondents conduct:
3140c. Said conduct seriously undermines the
3146atmosphere of trust essential to the
3152student/instructor relationship, and further
3156is inconsistent with the standards of public
3163conscience and good morals, and was
3169sufficiently notorious so as to disgrace the
3176faculty members profession and impair the
3182faculty members service to the community and
3189to students.
3191d. The faculty members conduct had serious
3198adverse consequences upon the student, the
3204students relationship with her husband, as
3210well as adverse impact on other students,
3217faculty, staff, and upon members of the
3224community, impairing his effectiveness.
3228e. The effect of the faculty members
3235aforesaid conduct was the creation of an
3242intimidating, hostile and/or offensive
3246educational environment for the student and
3252others.
325346. No evidence was pres ented of any adverse consequences
3263to other students, faculty, staff, or members of the community,
3273caused by Respondents actions.
327747. None of the College administrators who testified could
3286recall receiving any complaints regarding Respondent.
3292Dr. Roberts recalled an inquiry from the campus newspaper, but
3302testified that no article ever ran in that or any other newspaper
3314regarding this situation.
331748. Ms. Zemola testified that she heard some gossip around
3327the campus, though none of it mentioned the parties by name.
3338Such talk naturally affected Ms. Zemola, but could not be said to
3350have had any other adverse impact.
335649. Ms. Zemolas relationship with her husband was plainly
3365affected by this incident. However, testimony from both
3373Respondent and Ms. Zemola indicated that neither of their
3382marriages was happy at the outset of their relationship. In
3392fact, their testimony indicated that mutual unhappiness in their
3401marriages was one of the main reasons they were drawn together in
3413the first place.
341650. No evidence was presented to demonstrate that
3424Ms. Zemolas grades or academic advancement were in any way
3434compromised by her affair with Respondent.
344051. Ms. Zemola received grades of A in both classes she
3451took from Respondent. Both Ms. Zemola and Respondent testified
3460that these grades were earned by Ms. Zemola based entirely on her
3472work in those classes.
347652. Respondent has continued to work as an instructor at
3486the College since the affair and subsequent disciplinary
3494proceedings. His work has been performed competently and
3502completely without incident.
350553. The episodes of disruption and/or diminished
3512effectiveness cited by the Colleges administrators were in fact
3521caused by John Zemola, not by Respondent. When asked for
3531evidence that Respondents effectiveness as a teacher has been
3540diminished as a result of the relationship, President Kuttler
3549related an incident in which John Zemola disrupted a class to
3560inform the students about Respondents situation, and another
3568incident in which John Zemola harassed Respondent at his home,
3578telling Respondents neighbors about the incident.
358454. President Kuttler concluded that Respondents
3590effectiveness was diminished by the fact that it became known on
3601the campus that there was a teacher/student sexual relationship.
3610However, all the credible record evidence indicates no one
3619involved in the incident or the subsequent disciplinary
3627proceedings other than John Zemola ever publicly disclosed the
3636relationship. Respondent cannot fairly be blamed for the actions
3645of Mr. Zemola in publicizing the incident.
365255. Several of Respondents colleagues testified to attest
3660to Respondents outstanding ability in the classroom. All
3668opined, based on their experience as instructors at the College
3678and their knowledge of Respondents character and abilities, that
3687Respondent could continue to perform as an effective instructor
3696at the College.
369956. No evidence was presented to demonstrate that
3707Respondents actions created an intimidating, hostile and/or
3714offensive educational environment for the student and others.
372257. Respondent acknowledged the impropriety of his actions,
3730and the impact they have had on his personal life, but testified
3742that it has had no impact on his professional life.
3752CONCLUSIONS OF LAW
375558. The Division of Administrative Hearings has
3762jurisdiction over the parties and subject matter of this cause,
3772pursuant to Section 120.57(1), Florida Statutes.
377859. Petitioner contends that its Petition is brought
3786pursuant to Rule 6A-14.011(4), Florida Administrative Code, which
3794states, in pertinent part:
3798Any employee who is under continuing contract
3805may be dismissed or may be returned to annual
3814contract status for another three (3) years
3821at the discretion of the board when a
3829recommendation to that effect is submitted in
3836writing to the board on or before April 1 of
3846any college year giving good and sufficient
3853reasons therefor by the president and
3859provided the presidents recommendation is
3864approved by a majority of the board.
387160. Petitioners contention is incorre ct, for two reasons.
3880First, the quoted provision requires that the Presidents
3888petition be submitted in writing to the Board on or before April
39001 of the college year. The Petition in this case was filed on
3913May 8, 1997, seeking Respondents dismissal at the conclusion of
3923the 1996/97 academic year.
392761. Second, the Policy itself, under the heading
3935Discipline/Procedure, states in relevant part:
3941Remedial or disciplinary action will depend
3947on the nature of the incident, but such
3955discipline shall range from admonishment to
3961dismissal.
3962* * *
3965Administrative staff and faculty members may
3971be subject to disciplinary action as provided
3978in the Rules of the Department of Education,
3986State Board of Community Colleges Rule 6A-
399314.011(6).
399462. Rule 6A-14.011(6), Florida Administrative Code, the
4001rule actually referenced in the Colleges Policy, states in
4010relevant part:
4012Any employee classified under the provisions
4018of Rule 6A-14.002(1)(a), (b), FAC., may be
4025suspended or dismissed by the board upon
4032recommendation of the president at any time
4039during the college year, provided that no
4046such employee may be dismissed during the
4053college year without opportunity to be heard
4060at a public hearing after at least fourteen
4068(14) days notice of the charges against the
4076employee and of the time and place of
4084hearing; and provided further that the
4090charges must be based on immorality,
4096misconduct in office, incompetency, gross
4101insubordination, willful neglect of duty,
4106drunkeness or conviction of any crime
4112involving moral turpitude . (Emphasis added.)
411863. It is concluded, therefore, that Petitioner has the
4127burden of establishing by a preponderance of the evidence that
4137the actions of Respondent warrant his dismissal from the College
4147or lesser discipline for immorality, misconduct in office,
4155incompetency, gross insubordination, willful neglect of duty,
4162drunkeness, or conviction of a crime involving moral turpitude.
4171As a practical matter, the standards for immorality and
4180misconduct in office are the only applicable bases for decision
4190under the facts set forth above.
419664. Chapter 6A-14, Florida Administrative Code, does not
4204further define the terms immorality or misconduct in office.
4213Those terms are used in Section 231.06(4), Florida Statutes,
4222which sets forth grounds for discipline of school teachers under
4232continuing contract, and those terms are further defined in Rule
42426B-4.009, Florida Administrative Code, which is the Department of
4251Education rule implementing Section 231.06(4), Florida Statutes.
4258The relevant portions of Rule 6B-4.009, Florida Administrative
4266Code, read as follows:
4270(2) Immorality is defined as conduct that is
4278inconsistent with the standards of public
4284conscience and good morals. It is conduct
4291sufficiently notorious to bring the
4296individual concerned or the education
4301profession into public disgrace or disrespect
4307and impair the individuals service in the
4314community.
4315(3) Misconduct in office is defined as a
4323violation of the Code of Ethics of the
4331Education Profession as adopted in
4336Rule 6B-1.001, FAC., and the Principles of
4343Professional Conduct for the Education
4348Profession in Florida as adopted in
4354Rule 6B-1.006, FAC., which is so serious as
4362to impair the individuals effectiveness in
4368the school system.
437165. The following provisions of the referenced Principles
4379of Professional Conduct, Rule 6B-1.006, Florida Administrative
4386Code, may be applicable:
4390(3) Obligation to the student requires that
4397the individual:
4399(a) Shall make reasonable effort to protect
4406the student from conditions harmful to
4412learning and/or to the students mental
4418and/or physical health and/or safety.
4423* * *
4426(e) Shall not intentionally expose a student
4433to unnecessary embarrassment or
4437disparagement.
4438* * *
4441(g) Shall not harass or discriminate against
4448any student on the basis of race, color,
4456religion, sex, age, national or ethnic
4462origin, political beliefs, marital status,
4467handicapping condition, sexual orientation,
4471or social and family background and shall
4478make reasonable effort to assure that each
4485student is protected from harassment or
4491discrimination.
4492* * *
4495(h) Shall not exploit a relationship with a
4503student for personal gain or advantage.
450966. In Texton v. Hancock , 359 So. 2d 895 (Fla. 1st DCA
45211978), the court applied the standards of Section 231.06, Florida
4531Statutes, to the case of a tenured college instructor accused of
4542immorality, misconduct in office, and willful neglect of duty.
4551It is thus concluded that the standards found in Section 231.06,
4562Florida Statutes, and Rule 6B-4.009, Florida Administrative Code,
4570are properly applicable to this case, with the following caveat
4580set forth by the Texton court:
4586Obviously acts performed by a tenured school
4593teacher in a given situation may justify
4600discharge, whereas in another situation they
4606may not. Ms. Textons conduct must be judged
4614in the context of her more liberal, open,
4622robust college surroundings. She is not
4628teaching children of tender years in an
4635elementary school . Her acts have little or
4643no connection whatsoever with morality,
4648misconduct in office or willful neglect
4654particularly when considering that the
4659complainants were junior college students,
4664many of them older and working full-time,
4671attending classes part-time or at night.
4677Texton , 359 So. 2d at 897 (emphasis added).
468567. The Petition alleges that Respondents conduct violated
4693one or more of the following:
4699a. The terms of paragraph 7 of his contract
4708[This contract shall at all times be subject
4716to any and all laws, Florida State Board of
4725Education Regulations, and Board policies and
4731regulations now existing or hereafter
4736lawfully enacted or promulgated.];
4740b. The provisions of Section 228.2001,
4746Florida Statutes [Discrimination against
4750students and employees in state system of
4757public education];
4759c. The provisions of State Board of
4766Education Rule 6A-19.002, Florida
4770Administrative Code [dealing with
4774discrimination based on race, sex, national
4780origin, marital status, or handicap in
4786educational institutions];
4788d. The provisions of Title IX and applicable
4796federal regulations; and
4799e. The provisions of the Policy, as
4806described above.
480868. In its proof at hearing and in its proposed recommended
4819order, Petitioner focused its efforts on demonstrating that
4827Respondent violated the Policy, and thus could be dismissed
4836pursuant to paragraph 7 of his contract. No proof was offered
4847nor argument made that Respondent violated the various state and
4857federal statutes and rules regarding discrimination that were
4865cited in the Petition, and thus no conclusions are reached as to
4877violations of those provisions.
488169. Under the Colleges Policy, sexual harassment is
4890defined as:
4892An employees or a students unwelcome sexual
4899advances, requests for sexual favors, and
4905other verbal or physical conduct of a sexual
4913nature, sexually related jokes, display of
4919pornographic material in the workplace or an
4926academic or student setting... when
49311. submission to such conduct is made
4938explicitly or implicitly a term or condition
4945of an individuals employment or an
4951individuals treatment as a student;
49562. submission or rejection of such conduct
4963by an individual is used as the basis for
4972employment decisions or the treatment of a
4979student affecting that individual; or
49843. such conduct has the purpose or effect of
4993unreasonably interfering with an individuals
4998work or a students academic performance or
5005creating a sexually intimidating, hostile or
5011offensive working or academic environment.
501670. The definition is thus two-pronged: there must be an
5026unwelcome sexual advance or other offensive behavior of a sexual
5036nature; and there must be either an element of coercion,
5046interference, or the creation of a sexually intimidating, hostile
5055or offensive environment.
505871. Applying the definition to this case, Respondents
5066behavior did not meet either prong. The romantic and sexual
5076behavior that occurred was not unwelcome, and there was no
5086element of coercion, no interference with the students academic
5095performance, and no creation of a sexually intimidating, hostile
5104or offensive environment. Had the Petitioner been required to
5113demonstrate that Respondent was in violation of the definition of
5123sexual harassment set forth in its Policy, Petitioner would
5132have failed to carry the burden of proof.
514072. However, the Policy goes on to state that the term
5151sexual harassment has a broader impact in the instructor-
5160student context:
5162The fundamental element of such behavior is
5169the inappropriate personal attention,
5173including romantic and sexual relationships
5178with a student by an instructor or staff
5186member who is in a position to determine a
5195students grade or otherwise affects the
5201students academic advancement. Because the
5206instructor-student relationship is one of
5211professional and client, the above
5216inappropriate behavior is unacceptable in a
5222college; it is a form of unprofessional
5229behavior which seriously undermines the
5234atmosphere of trust essential to the academic
5241setting. (Emphasis added)
524473. Thus, neither of the essential elements found in the
5254definition of sexual harassment applies when the term is
5263applied in the instructor-student context. Sexual advances or
5271other conduct of a sexual nature need not be unwelcome ; any
5282romantic or sexual relationship is presumed to be inappropriate.
5291Also, there need not be any element of coercion, because the
5302College has determined that the i nstructor-student relationship
5310is so fraught with the potential for such coercion that a
5321prophylactic rule is appropriate.
532574. It is unquestioned that Respondent violated the blanket
5334prohibition on romantic and sexual relations with students set
5343forth in the Policy. Respondent was an instructor, and was in a
5355position to determine the students grade or to otherwise affect
5365the students academic advancement.
536975. Petitioner has demonstrated, by a preponderance of the
5378evidence, that Respondent violated the Instructor-Student
5384Relationships portion of the Policy. Such violation does not
5393constitute immorality in the context of the liberal, open,
5402robust college surroundings in which it occurred. However, it
5411is concluded that such a direct, knowing violation of an express
5422College policy does constitute misconduct in office.
542976. In particular, it is concluded that Respondent violated
5438the Principles of Professional Conduct requiring that an
5446individual shall not intentionally expose a student to
5454unnecessary embarrassment or disparagement and shall not
5461exploit a relationship with a student for personal gain or
5471advantage. While the undersigned found as fact that most of the
5482embarrassment to Ms. Zemola was caused by her husbands
5491publicizing of the affair, it cannot be overlooked that
5500Respondents behavior was the ultimate cause of Mr. Zemolas
5509actions.
551077. The undersigned concludes, however, that dismissal of
5518Respondent is not the proper discipline, taking into account the
5528nature of the violation, the mitigating factors involved, the
5537lack of any demonstrated adverse impact on the student in
5547particular or the College generally, and Respondents otherwise
5555spotless record as an instructor at the College for a period of
556715 years.
556978. The undersigned questions the fairness of associating
5577the stigma of sexual harassment with the actions taken by
5587Respondent in this case. The Colleges authority to prohibit
5596romantic liaisons between faculty and students has not been
5605questioned in this proceeding, but such a prohibition is properly
5615the subject of a separate rule. Sexual harassment, both in
5626common usage and as expressly defined in the Policy, carries a
5637connotation of unwelcome, overbearing and/or crude sexual
5644behavior that was simply not present in this case.
565379. The nature of this violation was not sexual
5662harassment as stated in the Colleges own definition.
5670Respondents actions were not unwelcome. Respondent did not
5678condition the students grade or academic advancement on her
5687submission to his overtures. Respondent did nothing to interfere
5696with the students academic performance. Respondent did nothing
5704to create a sexually intimidating, hostile, or offensive academic
5713environment for the student. Respondents sole violation was to
5722transgress the blanket, prophylactic prohibition on all romantic
5730relationships with students.
573380. Seen in this light, the disciplinary actions of the
5743College against Respondent were irrational. Dr. Roberts
5750memoranda and testimony indicated that, had the affair taken
5759place after Ms. Zemola was a student in Respondents class, the
5770only punishment would have been a written admonishment. However,
5779because the affair occurred while Ms. Zemola was taking
5788Respondents class, the proper punishment was deemed to be
5797dismissal.
579881. Dr. Roberts distinction would have been rational had
5807there been any indication that Respondent committed sexual
5815harassment as defined in the Policy, i.e., Respondent was
5824conditioning Ms. Zemolas grade in his class on her compliance
5834with his romantic advances. However, there was no evidence that
5844this was the case. Both Ms. Zemola and Respondent testified that
5855her grades in Respondents classes were in no way contingent on
5866the outcome of their personal relationship.
587282. Dr. Roberts distinction was irrational because the
5880only violation proven against Respondent was of the blanket
5889prohibition on romantic relationships. The penalty should have
5897been the same regardless of the timing of the relationship, given
5908the complete lack of evidence that Respondent actually used his
5918position to improperly influence the students grade or affect
5927her academic advancement. As Dr. Roberts himself testified, the
5936Policys concern is with abuse of the power relationship between
5946instructor and student, and that power relationship is present
5955whether or not the student is in that instructors class. It is
5967concluded that written admonishment or suspension would have been
5976the proper penalty in either case, given the circumstances of the
5987case and Respondents otherwise exemplary record at the College.
599683. Respondents violation should in no way be minimized.
6005The Colleges Policy serves a salutary purpose. However, the
6014Policy also calls for a range of penalties to be administered
6025depending on the nature of the incident. The nature of this case
6037simply does not warrant imposition of the severest penalty
6046available. Rule 6A-14.0411(6), Florida Administrative Code,
6052permits suspension of an instructor for cause, and it is
6062concluded that a suspension would be a just and sufficient
6072penalty for the violation proven in this case.
6080RECOMMENDATION
6081Upon the foregoing findings of fact and conclusions of law,
6091it is recommended that the Board enter a final order finding that
6103Respondent violated the Instructor-Student Relationships
6108portion of the Colleges Sexual Harassment Policy, and suspending
6117Respondent from his position at the College for a period not to
6129exceed one Session.
6132DONE AND ENTERED this 24th day of April, 1998, in
6142Tallahassee, Leon County, Florida.
6146___________________________________
6147LAWRENCE P. STEVENSON
6150Administrative Law Judge
6153Division of Administrative Hearings
6157The DeSoto Building
61601230 Apalachee Parkway
6163Tallahassee, Florida 32399-3060
6166(850) 488-9675 SUNCOM 278-9675
6170Fax Filing (850) 921-6847
6174Filed with the Clerk of the
6180Division of Administrative Hearings
6184this 24th day of April, 1998.
6190COPIES FURNISHED:
6192Maria N. Sorolis, Esquire
6196Shannon Bream, Esquire
6199Allen, Norton and Blue
6203Hyde Park Plaza, Suite 350
6208324 South Hyde Park Avenue
6213Tampa, Florida 33606
6216Mark Herdman, Esquire
6219Herdman and Sakellarides
62222595 Tampa Road, Suite J
6227Tampa, Florida 34684
6230C harles L. Roberts, Provost
6235St. Petersburg Junior College
6239St. Petersburg/Gibbs Campus
6242Office of the Provost
6246St. Petersburg, Florida 33733
6250District Board of Trustees
6254St. Petersburg Junior College
6258Post Office Box 13489
6262St. Petersburg, Florida 33733
6266Carl M. Kuttler, Jr., President
6271St. Petersburg Junior College
6275Post Office Box 13489
6279St. Petersburg, Florida 33733
6283NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
6289All parties have the right to submit written exceptions within 15
6300days from the date of this recommended order. Any exceptions to
6311this recommended order should be filed with the agency that will
6322issue the final order in this case.
- Date
- Proceedings
- Date: 07/20/1998
- Proceedings: Final Order filed.
- Date: 03/05/1998
- Proceedings: Respondent`s Post-Hearing Brief, Proposed Findings of Fact and Conclusions of Law; Petitioner`s Proposed Recommended Findings of Fact and Conclusions of Law filed.
- Date: 02/03/1998
- Proceedings: Transcript filed.
- Date: 01/07/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 12/31/1997
- Proceedings: Prehearing Stipulation filed.
- Date: 08/13/1997
- Proceedings: Order Continuing Final Hearing sent out. (hearing set for 1/7/98; 9:00am; St. Petersburg)
- Date: 08/11/1997
- Proceedings: Letter to Judge Johnston from M. Sorolis Re: Continuance of hearing (filed via facsimile).
- Date: 07/30/1997
- Proceedings: Joint Motion for Continuance (filed via facsimile).
- Date: 07/23/1997
- Proceedings: Amended Notice of Final Hearing sent out. (hearing set for 8/13/97; 9:00am; St. Petersburg)
- Date: 07/21/1997
- Proceedings: (Respondent) Notice of Deposition filed.
- Date: 07/21/1997
- Proceedings: (Respondent) Notice of Serving Answers to Interrogatories; Petitioner`s First Interrogatories to Respondent; Response to Petitioner`s First Request for Production filed.
- Date: 06/27/1997
- Proceedings: Letter to JLJ from M. Sorolis Re: Dates unavailable for hearing filed.
- Date: 06/26/1997
- Proceedings: Notice of Hearing sent out. (hearing set for 9/11/97; 9:00am; St. Petersburg)
- Date: 06/26/1997
- Proceedings: Prehearing Order sent out.
- Date: 06/24/1997
- Proceedings: Petitioner`s First Interrogatories to Respondent; Disk filed.
- Date: 06/23/1997
- Proceedings: Petitioner`s First Request for Production filed.
- Date: 06/16/1997
- Proceedings: Joint Response to Initial Order filed.
- Date: 05/30/1997
- Proceedings: Initial Order issued.
- Date: 05/22/1997
- Proceedings: Agency Referral Letter; President`s Petition And Notice To Respondent of Hearing Rights; Agency Action Letter filed.