01-004324 University Of Florida vs. Brian Bowen Status: Closed Recommended Order on Friday, May 31, 2002.

Summary: Professor`s repeated misbehaviors with marijuana, tequila, and a one-time indiscretion with a female graduate offended multiple university rules and subjected him to termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY OF FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4324

)

BRIAN BOWEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause c ame on for a disputed - fact

hearing on January 28 - 29, 2002, in Gainesville, Florida, before

Ella Jane P. Davis, a duly - assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven D. Prevaux, Esqui re

University of Florida

123 Tigert Hall

Post Office Box 113125

Gainesville, Florida 32611 - 3125

For Respondent: Carla D. Franklin, Esquire

Franklin, Donnelly & Gross

408 West University Avenue

Suite 601

Gainesville, Florida 32601

Kirk Y. Griffin, Esquire

50 Staniford Street

Boston, Massachusetts 02114

STATEMENT OF THE ISSUES

Petitioner University of Florida seeks to terminate

Respondent, pursuant to Rules 6C1 - 1.007, 6C1 - 1.008, 6C1 - 7.018,

and 6C1 - 7. 048, Florida Administrative Code, for conduct alleged

as follows:

(a) Abusing the faculty member - student relationship;

(b) Fostering, by example, an environment in which

substance abuse is promoted to students whom Respondent

supervises;

(c) Creating a hostile learning environment; and

(d) Retaliation in the course of a sexual harassment

investigation.

PRELIMINARY STATEMENT

Respondent was employed as a non - permanent Assistant

Professor at Petitioner University of Florida (UF). On July 23,

2001, a c omplaint of sexual harassment was filed with UF against

Respondent. On August 27, 2001, UF concluded its investigation,

which expanded the original charges. On August 28, 2001,

Respondent issued a Notice of Proposed Dismissal. On

September 18, 2001, a Predetermination Meeting was held at

Respondent's request. UF subsequently issued its October 8,

2001, decision to dismiss Respondent, effective October 10, 2001.

This cause was referred, under contract, to the Division of

Administrative Hearings on or about November 2, 2001.

A disputed - fact hearing was convened on January 28 - 29, 2002.

Petitioner presented the oral testimony of William Fleming,

Alicia Pearce, Katherine Moore, Joel Carlin, and Dr. Richard

Jones. Petitioner had Exhibits P - 1 through 12 and P - 15 admitted

in evidence. P - 12 is the deposition of Dr. William Lindberg.

Respondent presented the oral testimony of Anna Bass and

testified on his own behalf. Exhibits R - 1 through 7 and R - 10

were admitted in evidence. The Joint Prehearing Stipula tion was

also admitted in evidence as Joint Exhibit A. 1

A Transcript was filed on March 4, 2002. Proposed

Recommended Orders were due on March 19, 2002. Petitioner timely

filed its proposal but agreed that Respondent could file his

proposal on or befo re March 26, 2002. That agreement was

ratified by an Order entered March 22, 2002. Respondent filed

its proposal timely under that Order, but also filed a

reorganized proposal on May 10, 2002. 2 The latter has not been

considered. The parties' timely pr oposals have been considered.

FINDINGS OF FACTS

1. In order to resolve the legal issues herein, it is not

necessary to relate all the evidence taken, to relate the

stipulated facts verbatim, or to record the entire sequence of

events and all the opinions various witnesses expressed of one

another. Accordingly, and in accord with Section 120.57(1),

Florida Statutes, only material findings of fact have been made. 3

In doing so, effort has been made to reconcile the witnesses'

respective testimony so that a ll witnesses may be found to speak

the truth, but where conflicts existed, the credibility issue has

been resolved on the characteristics listed in Standard Jury

Instruction , (Civil) 2.2b. 4

2. Respondent was initially hired at UF on July 17, 1992,

in a non - permanent position as a Research Scientist, at its main

campus in Gainesville, Florida.

3. Beginning April 1, 1997, and at all times material,

Respondent was employed on the main campus as a non - permanent

Assistant Professor in the Institute of Fo od and Agriculture

Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at

UF. As such, Respondent was assigned teaching, research, and

extension duties that include teaching undergraduate and graduate

courses and mentoring students. Respondent did not hold tenure,

but was in a tenure - earning status for nine years.

4. Respondent is an ichthyologist and was employed in the

specialized academic field of wildlife conservation genetics,

within a limited professional community comprised of only

app roximately 100 professionals in the United States.

5. Students, graduate students, and colleagues of

Respondent understand that this is a tight - knit professional

community and that Dr. Robert Chapman of the University of

Charleston, South Carolina, is pa rt of that "elite 100." As with

any profession, networking is important to students' career

paths.

6. Anna Bass was never a UF student or a student of

Respondent. However, she was directly employed by UF from March

1995 to the summer of 2000, as Resp ondent's lab manager. She

worked for Respondent elsewhere prior to that period and has

known him since approximately 1992 or 1993.

7. As Assistant Professor, Respondent served as the Major

Professor and Thesis Committee Advisor for UF graduate students

Joel Carlin, Alicia Pearce, and Luiz Rocha.

8. Currently, and at all times material, Joel Carlin was

enrolled as an IFAS graduate student at UF. Alicia Pearce

graduated from the UF - IFAS program in May 2001.

9. Katherine Moore was never Respondent's st udent and never

attended UF. However, Respondent had been on Ms. Moore's

graduate thesis committee when she was a student at the

University of Charleston. She graduated from that university

approximately 1998 - 1999. Ms. Moore has been employed as a

biolo gist at the National Ocean Service in Charleston, South

Carolina, since 1990.

10. The student - professor relationship is based on mutual

trust and respect, with the student's best interest at heart, for

either undergraduate or graduate students.

11. As major professor and chair of thesis committees,

Respondent has substantial power over the career paths of

graduate students he has advised. Major professors are expected

to serve as mentors to their students, providing guidance and

acting as professi onal role models to assist and mold judgment.

They are relied upon by students and former students for future

educational, job, and research grant references. The graduate

student - major professor relationship persists beyond graduation

and often endures for a life - time. Graduates often continue

original research in cooperation with their mentors and co - author

professional research articles with them. Graduates frequently

seek the counsel of their mentors for important professional

post - graduate decision s.

12. Among his students and colleagues, Respondent has a

reputation for partying. His liquor of choice is tequila. He

has held what are called "late night lab sessions" with his

graduate students in off - campus Gainesville music clubs and bars.

Student attendance at these "late night lab sessions" are not

required, but it is understood they can be helpful for building

both rapport and a career. Respondent also entertains, as do

other professors, by serving food and alcohol in his home, so

that students may meet and network with visiting speakers/

colleagues in their chosen field(s). During a party hosted by

Respondent at his home in May of 1997, he served and consumed

beer and tequila in the presence of adult IFAS students. He

became inebriate d at that party. Respondent, Mr. Carlin, and a

visiting scientist, met at a music club in Gainesville and drank

alcohol together on one occasion. In early June 2001, Respondent

attended an informal going - away party for the same colleague at a

Gainesville restaurant with Mr. Carlin and Mr. Carlin's

undergraduate girlfriend. Alcohol was consumed and at the end of

the evening, the three felt too inebriated to drive legally or

safely. However, Respondent drove home and did nothing to

prevent the others from driving home. Respondent's explanation

for this last occasion was that he was under great emotional

stress due to his wife's recent miscarriage.

13. Respondent has consumed alcoholic beverages at off -

campus locations at least 3 - 4 times per year with adult IFAS

students whom he academically supervised.

14. In 1998, when Mr. Carlin, an adult, was interviewing on

the UF Campus at a morning appointment with Respondent for

admission to the UF graduate program, Respondent invited him to

meet that night, a t approximately 11:00 p.m., with Respondent and

his graduate students in a Gainesville establishment where they

consumed alcohol. Attendance at the bar was not a quid pro quo

for admission, and Mr. Carlin never thought it was. Mr. Carlin

remained for the meeting and drinking and was ultimately admitted

into the program. Respondent considered his invitation to be a

friendly opportunity for Mr. Carlin to talk informally with other

graduate degree candidates so that all concerned could determine

if the fit was right for Mr. Carlin in the program he wanted to

pursue at UF. Mr. Carlin did not object to the drinking, but he

felt the late night hour was inconvenient, since he had expected

to leave town after his morning interview, and unprofessional,

since he never got to discuss dissertation ideas at that time

with Respondent.

15. Once, when Respondent had been in Charleston, South

Carolina, helping Ms. Moore "finish up [her] Masters," they were

at a post - reception party in Respondent's motel room. Oth er

guests were drinking alcohol and smoking pot (marijuana).

Dr. Robert Chapman was also present. Respondent and Dr. Chapman

settled which of their names should appear first on a jointly -

authored professional publication with a "tequila bottle toss."

E ach professor - author tossed an empty tequila bottle into the

motel swimming pool from the motel room balcony. The man whose

bottle hit closest to the pool's center, won. The date of this

event is not clear, but apparently it occurred while Respondent

was employed by UF. There is no reason to suppose UF students

were present.

16. Respondent has possessed liquor at off - campus

professional conferences in the presence of adult UF students for

whom he had some academic responsibility.

17. Several years a go, at a professional reception held for

Respondent, he autographed the closure strap at the back of the

bra worn by a non - UF undergraduate female, approximately nineteen

years old, who was flirting with him in the presence of

Ms. Moore. Ms. Moore descri bed the young woman as someone

attending her first professional conference who was in awe of

Respondent as a "star" in their field. Respondent admitted to

making sexually suggestive witticisms to the undergraduate female

at the time. No one took him seri ously or was offended.

18. Respondent has repeatedly possessed or smoked

marijuana, a controlled substance under Florida law, in the

presence of others with whom he was professionally associated. 5

Use or possession of marijuana on campus offends UF's " drug - free

policy." Use or possession of marijuana by a UF faculty member

or student anywhere is considered "disruptive behavior" subject

to UF discipline. See Rules 6C1 - 1.008(1)(m) and 6C1 - 7.048(1)(n),

Florida Administrative Code, and the following Concl usions of

Law.

19. In June 2001, Respondent used marijuana at Mr. Carlin's

house with Mr. Carlin and Mr. Carlin's live - in undergraduate

girlfriend present. Respondent's explanation for this was that

he was under great emotional stress due to his wife's recent

miscarriage.

20. Ms. Moore has observed Respondent smoke marijuana in

the presence of students at most of the off - campus professional

meetings they have attended over the years from 1992 to the

present, but the students she referred - to probably at tended

universities other than UF.

21. Ms. Pearce has observed Respondent smoke marijuana in

the presence of UF students approximately 15 times. She did not

specify the locations as on - or off - campus.

22. While she was his student and in his UF office , on the

UF campus, Respondent showed Ms. Pearce a "highlighter" pen that

he carried in his pocket, which pen had a false bottom for hiding

a stash of marijuana.

23. Ms. Bass has smoked marijuana with Petitioner multiple

times. She did not specify the location(s) as on - or off - the UF

campus.

24. In July 2001, Alicia Pearce was 29 years old. During

her UF graduate studies, Respondent had been her major professor

and thesis committee advisor. She had received her Master's

Degree diploma from UF on May 5, 2001, and UF could not require

her to complete any further requirements. ( See Finding of Fact

8.) However, according to Dr. Richard Jones, UF Dean of

Research, it was expected that after award of their degrees,

former graduate students would place th eir theses in reviewed

(preferably peer - reviewed) publications.

25. Respondent had agreed that Ms. Pearce could present her

thesis after graduation, due to her relocation to North Carolina.

26. In order to present her paper after graduation,

Ms. Pearce submitted her research paper abstract and her

registration papers and fees for the American Society of

Ichthyologists and Herpetologists (ASIH) Conference in

February, 2001, before her graduation from UF. The conference

was scheduled to be held on July 5 - 10, 2001, at State College,

Pennsylvania (Penn State).

27. Respondent also attended the July 5 - 10, 2001, ASIH

Conference in the capacity of a UF - IFAS faculty member to, among

other purposes, mentor his graduate students, Pearce, Carlin, and

Rocha, all o f whom were presenting papers at the conference.

Respondent was not required to request leave, and did not request

leave, from UF to attend the conference. He was on salary from

UF while at the conference. Respondent was entitled to request a

travel rei mbursement from UF, as did Mr. Carlin, but elected not

to do so.

28. Respondent has attended the ASIH Conference

approximately four times while employed by UF - IFAS.

29. At the 2001 ASIH Conference, Ms. Pearce roomed in a

dorm with Luiz Rocha.

30. On July 6, 2001, Respondent used his credit card to

purchase dinner and alcoholic drinks at a restaurant/bar in the

Penn State Conference Center Hotel for a group of adult

colleagues and adult students, including Carlin, Pearce, and

Rocha. The ASIH Confe rence was being held in the hotel. The

hotel was considered part of the Penn State campus. During

dinner, Respondent made a sexually suggestive comment to

Ms. Pearce, who was the only female present, and remarked that it

could not be sexual harassment b ecause she was no longer his

student. Neither Ms. Pearce nor anyone else took him seriously

or was offended.

31. After dinner, Petitioner invited Ms. Pearce to his

hotel room, along with another senior colleague, to discuss a tip

Respondent had received several weeks earlier that a UF student

had fabricated research. Respondent wanted the senior

colleague's advice. He wanted Ms. Pearce's perspective because

she had been in the lab during a relevant period of time. Their

conversation in Respondent's ho tel room lasted about an hour.

During this period of time, marijuana was present in Respondent's

hotel room. Respondent did not admit to bringing the drug with

him to the conference, but the fact that marijuana was present in

Respondent's hotel room mean s the contraband drug was in his

constructive possession. Respondent admitted holding, sniffing,

and/or smoking 6 a "token toke" in the hotel during the dates of

the 2001 ASIH Conference, and apparently in the presence of

Ms. Pearce and the adult colleag ue. Marijuana use or possession

is contrary to Penn State University's drug - free policy and

rules.

32. Respondent, his colleague, and Ms. Pearce next attended

the official conference reception downstairs in the hotel.

Alcohol was served and consumed.

33. Later the same evening, Respondent and Ms. Pearce

returned to his hotel room. Both had already drunk a great deal

of alcohol and proceeded to drink more. They were observed alone

together in the hotel room by Mr. Carlin, whom they sent away.

Ms. Pearce became further inebriated during a long conversation

with Respondent, which included discussion of her fear of doing

the professional presentation coming up at the conference, past

lab work, and intimate details of their respective married liv es.

She then passed out in the bathroom.

34. Respondent knew Ms. Pearce was already partially

inebriated and vulnerable before he took her to his hotel room,

because she had begun to cause a scene at the conference's

reception. Respondent also knew she had a history of

irresponsible behavior with regard to alcohol because in May

2000, she and Mr. Carlin, high on alcohol, had telephoned

Respondent's home repeatedly at approximately 2:00 a.m., in the

morning. They then drove, in that condition, to An na Bass's

house, where they "crashed" for the night. Thereafter,

Respondent had told them he was distancing himself from them;

told them they should never call him again at that hour; and gave

them extra lab work.

35. On July 6, 2001, Respondent assist ed Ms. Pearce from

the hotel bathroom into one of his hotel room beds. It is

undisputed that the couple then kissed and groped each other.

36. Respondent's and Ms. Pearce's versions of what happened

next, or how long it took, are fairly similar. Where t hey

differ, the undersigned has balanced Ms. Pearce's candor and

demeanor or lack thereof while testifying, her past experiences

with marijuana and excessive use of alcohol, her expressed intent

to go to the ASIH Conference with the purpose of indulging in

heavy drinking, and her inability to recall the evening's events

in sequence or in detail, against Respondent's testimony, which

is discredited in part by his prior inconsistent statements and

admissions. Having assessed their respective versions, it is

found that: Respondent removed or dislodged Ms. Pearce's shirt

and bra. Their groping progressed to Respondent's massaging

Ms. Pearce's breasts and the two of them mutually massaging each

other's genitals. At that point, Respondent broke it off and

remo ved himself from the bed. Ms. Pearce then turned over and

passed out or went to sleep. Respondent then went to sleep in

another bed.

37. About 4:00 a.m., Ms. Pearce awoke, dressed, and left

the room, but since the shuttle bus had left, she was unable t o

return to her dorm. Respondent followed her to the lobby. She

wanted to know if they had had intercourse. Respondent felt he

was very clear in stating that no intercourse had occurred.

However, Respondent's answer seemed non - specific to Ms. Pearce

an d did not satisfy her that intercourse had not occurred. She

was very concerned, because she and her husband had been trying

to conceive a child. However, she allowed Respondent to persuade

her to return to his room to talk until 7:00 a.m., when the

shut tle began to run again, and she then left the hotel.

38. Respondent explained the July 6, 2001, sexual incident

with Ms. Pearce as his being emotionally unstable due to his

wife's recent miscarriage.

39. Ms. Pearce did not say anything more to Respond ent

about their sexual incident until later on July 7, 2001, when she

asked him not to tell anybody. He agreed that there was "no use

in other people getting hurt." They behaved normally to each

other in public throughout the next several days and were n ot

alone together.

40. Respondent helped Ms. Pearce prepare to present her

paper later that weekend, and she did well for her first

presentation on July 10, 2001. She presented Respondent with an

autographed copy of her completed thesis after her present ation.

The dedication warmly expressed her thanks to him for his

mentorship of her.

41. On Tuesday, July 10, 2001, the last day of the

conference, after her presentation, Ms. Pearce also filed a

criminal complaint with the Penn State University Police

D epartment, alleging Respondent had sexually assaulted her.

Respondent was confronted by two police officers and questioned

extensively. He cooperated and provided a statement and blood

for a blood test. He was not arrested or charged.

42. Back in Gaine sville, Respondent spoke to Mr. Carlin

by telephone on July 13, 2001. Upon Respondent's inquiry,

Mr. Carlin stated that he had learned of the Penn State

investigation from Ms. Pearce when he drove her to the airport on

July 10, 2001. Both Respondent an d Mr. Carlin agreed Mr. Carlin

had no first - hand knowledge of the situation. Respondent advised

Mr. Carlin to stay way clear of the situation.

43. On Monday, July 16, 2001, Respondent again spoke with

Mr. Carlin by telephone. On that date, Respondent told Mr.

Carlin that Mr. Carlin's and Luiz Rocha's names had also been of

interest to the Penn State Police. Because Respondent said, "How

would you like to be accused of rape?" Mr. Carlin could have

interpreted this conversation as a threat. He did not .

44. On July 22, 2001, Dr. William Lindberg, Respondent's

Department Chairman, submitted his evaluation of Respondent's

academic performance for the 2000 - 2001 academic year, which rated

Respondent as overall "exemplary." This was a precursor to

Responde nt's getting tenure. Dr. Lindberg did not know about the

events of the 2001 ASIH Conference when he submitted the

evaluation.

45. It is undisputed that Respondent is a "star" in "the

elite 100," has published widely, is a popular professor, and has

obtai ned valuable research grants for UF.

46. On July 23, 2001, Ms. Pearce filed a complaint

regarding Respondent with UF - IFAS. It was categorized as "sexual

harassment." The investigation was cloaked in confidentiality.

47. At the time of his July 13 and 16, 2001, telephone

conversations with Mr. Carlin, Respondent could not have known

that UF would be investigating him.

48. On August 6, 2001, Ms. Pearce was interviewed by the UF

investigator.

49. On or about August 6 - 8, 2001, Mr. Carlin was

interviewed by, and/or provided chronological notes to, the UF

investigator and Dr. Lindberg.

50. On August 8, 2001, Ms. Moore was interviewed by the UF

investigator and related the "signing of the bra strap" event.

51. On August 16, 2001, Respondent met with Dea n Cheek,

Dean Jones, Chairman Lindberg, and the investigator. Respondent

saw notes on, or was made aware of, all or some of the statements

made by those interviewed. He was informed that he probably

would be terminated. He also was instructed to be circ umspect

and respectful in dealing with the situation and potential

witnesses. Respondent and Dr. Lindberg shared a car back to

their department after this meeting. On the ride, Respondent

asked Lindberg what he should do about the paper he was co -

authori ng with Pearce. Lindberg told him that if he did not have

much invested in it, the high ground was to step away. Lindberg

did not recall Respondent's also asking what he should do about

papers he co - authored with Carlin and Moore.

52. Mr. Carlin was in terviewed by Dr. Lindberg and the

investigator again after Respondent met with the Deans.

53. At hearing, Ms. Pearce presented speculations, but no

credible evidence, that Respondent had done, or planned to do,

anything to her in retribution for her sexua l harassment charge.

As of the disputed - fact hearing, Respondent had not removed his

name from their joint paper.

54. On August 17, 2001, Respondent telephoned Ms. Moore and

told her to remove his name from the publication they had

recently co - authored a nd were preparing for publication. He

asked her never to contact him again because it was painful for

him to talk to someone who told stories about him and he was

tired of her complaints about her employer, who was a friend of

his. Ms. Moore considered R espondent's telephone call to

constitute her "professional excommunication." Respondent's

withdrawal of his authorship created an awkward situation for

Ms. Moore that necessitated her sending a letter of explanation

to the publisher to clarify that Respo ndent's withdrawal was not

due to a disagreement regarding her research results. The paper

will be published anyway.

55. Ms. Moore contacted Chairman Lindberg on August 23,

2001, and complained about Respondent's action and expressed her

fear of further professional reprisals from Respondent.

Dr. Lindberg agreed that if the withdrawal of Respondent's name

became an issue with the publisher, he would write to the

publisher for Ms. Moore and explain the situation in general

terms.

56. On August 14, 2001 , Anna Bass was interviewed by the UF

investigator.

57. On August 19, 2001, Ms. Bass sent an e - mail message to

Mr. Carlin which amounted to a diatribe against him and

Ms. Pearce for speaking to the UF investigator.

58. On August 28, 2001, a Notice of Pr oposed Dismissal was

issued against Respondent by UF.

59. On September 14, 2001, after learning that Respondent's

dismissal had been proposed, Ms. Bass contacted Chairman Lindberg

and charged Mr. Carlin with sexual harassment against her which

allegedly o ccurred more than a year previous, when he and

Ms. Pearce "crashed" at her home. ( See Finding of Fact 34.)

Ms. Bass denied that Respondent put her up to filing these

belated charges.

60. Respondent denied asking anyone to retaliate against,

or speak t o, Mr. Carlin for the purpose of preventing or altering

the information Mr. Carlin gave in interviews with the UF

investigator or UF authorities or to discredit his information.

Respondent further testified that he did not ask Dr. Robert

Chapman to author any correspondence related to the

investigation. However, he admitted discussing his situation

under the sexual harassment charges with Dr. Chapman.

61. Respondent had problems with Mr. Carlin previous to the

current investigation. On one occasion, he had to request that

Mr. Carlin not annoy his female lab assistant. Respondent had

previously disciplined Mr. Carlin for making annoying late night

telephone calls to Respondent's home. ( See Finding of Fact 34.)

At the 2001 ASIH Conference, Respondent ha d approached Mr. Carlin

about whether Mr. Carlin wanted to remain in competition for the

Stoye Award, because of some concerns over the eligibility of his

research. Mr. Carlin and Respondent have different

understandings of what was involved in this discu ssion, but

Mr. Carlin did not remove his name and Respondent did not

interfere with that choice. Mr. Carlin went on to win the

prestigious award.

62. Some other members of "the elite 100" had also had a

problem with Mr. Carlin concerning access to a limited supply of

endangered species samples he and another graduate student

needed. Mr. Carlin and the other researcher were in a race to

publish their respective dissertations first. Dr. Robert Chapman

was aware of the controversy.

63. On Friday, Sept ember 14, 2001, after hearing about

Respondent's proposed dismissal from employment, Dr. Chapman and

Respondent had a telephone conversation during which they

discussed Mr. Carlin. Respondent expressed his frustration at

the complaint filed by Ms. Pearce and accused her of "filing

false claims" against him. Respondent stated that Ms. Moore had

made an unflattering anecdote and "contributed a story that

portrayed [Respondent] in a negative light." Respondent also

stated that Mr. Carlin had alleged that Re spondent had harassed

him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin

and described him as "shiftless."

64. On Friday, September 14, 2001, Dr. Chapman sent an

e - mail message to Mr. Carlin expressing anger and shame and

stating in part that, "I fear that your career is in severe

jeopardy. No one I have talked to will hire you after this."

These comments of Dr. Chapman were directed to the rare species

sample controversy but mixed in with a diatribe about

Respondent's situation, as i f they were part of the same

complaint.

65. On Saturday, September 15, 2001, Dr. Chapman sent an

e - mail message to Jimmy Cheek, UF - IFAS Dean of Academic Programs,

accusing Mr. Carlin of aiding and abetting a shameful assault

upon Respondent and questioni ng Mr. Carlin's "honor and

integrity," referring to Mr. Carlin as "a slimy worm." In this

same e - mail, Dr. Chapman stated that "Ms. Moore is a thief," and

a radical feminist who was out to get Respondent. Apparently,

Dr. Chapman sent a similar missive to Dean Jones. Respondent had

provided the deans' names to Dr. Chapman and did not dissuade him

from writing them.

66. On Sunday, September 16, 2001, Dr. Chapman sent an

e - mail message to Mr. Carlin, apologizing for writing him in

anger but not for what h e had written to him on September 14,

2001. He told Mr. Carlin that his "first allegiance is to the

professor" and advised him that "[I]nterviews with administrators

are not an obligation. You have the right to decline and only

the courts can force it." Dr. Chapman also stated that Mr.

Carlin should talk with Respondent "about whether he should

continue to serve as your professor" and further advised him to

"take a low profile." While stating he would not circulate rare

species sample rumors beyond thos e persons who knew of the rare

species sample controversy before, and that he would be

professional if asked about Mr. Carlin's competence, Dr. Chapman

also stated he would volunteer nothing for Mr. Carlin.

67. Dr. Chapman is a former employment superviso r of

Mr. Carlin who strongly recommended him for admission to UF's

graduate school on December 16, 1997. Mr. Carlin now feels he is

unable to list Dr. Chapman as a reference because he questions

Mr. Carlin's intellect and moral character and will accordi ngly

give Mr. Carlin bad references rather than good ones. Mr. Carlin

has great concern that Respondent has ostracized and vilified him

for his role in the UF complaint review process. Mr. Carlin

informed Chairman Lindberg that he fears his career is ove r and

he has lost his place in his chosen academic field.

68. Mr. Carlin also speculates that Respondent will now

attempt to have his Stoye Award revoked, but there is no evidence

Respondent has made any move in that direction to date.

69. After Mr. C arlin was interviewed in the complaint

review process, Respondent substituted his name for Mr. Carlin's

name as the "corresponding author" on one of their current joint

research publications which had been pending since June. He did

not remove Mr. Carlin' s name as first author. Changing the name

of the corresponding author is not an unusual occurrence with

regard to academic publications. In this case, it may benefit

Mr. Carlin in getting published, because Respondent is friends

with the publisher. Howe ver, the effect of the name - switch is

that Mr. Carlin has lost control over the correspondence, putting

Respondent in a position to delay or take the publication out of

sequence for printing, if he chooses to retaliate against Mr.

Carlin.

70. On Septem ber 18, 2001, a Predetermination Meeting was

held at Respondent's request.

71. On October 8, 2001, UF issued its decision to dismiss

Respondent effective October 10, 2001.

72. Even after termination, sometime in December, 2001,

Respondent was cooperating with input for a second publication he

and Mr. Carlin co - authored. He has, however, begun to

investigate the data behind Ms. Pearce's and Mr. Carlin's papers

presented at the 2001 ASIH Conference.

73. According to Chairman Lindberg, who testified by

dep osition, Respondent breached his professional ethics and

student mentoring responsibilities by his behavior at the ASIH

conference with Ms. Pearce.

74. According to Dean Jones, Respondent's conduct at the

ASIH Conference was contrary to UF - IFAS expectatio ns of a

responsible faculty member's interactions with students and

abused the faculty member - student relationship.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuan t to Section 120.57(1), Florida Statutes, and its contract

to hear such cases.

76. The duty to go forward is upon Petitioner UF. The

parties are agreed that notwithstanding the case of Florida State

University v. McHugh , DOAH Case No. 99 - 3858 (Reco mmended Order

March 15, 2000; Final Order May 5, 2001), the burden of proof

herein is "by a preponderance of the evidence," and the standard

of proof is "just cause."

77. A state university is entitled to administer standards

of conduct for faculty and other personnel, imposing discipline

which can range from reprimand to dismissal. In this case, UF

seeks to dismiss Respondent.

78. Although this case arose from a sexual harassment

allegation, subsequent investigation resulted in additional

charges. Re spondent's proposed dismissal is not predicated upon

Rule 6C1 - 1.008(1)(r), Florida Administrative Code, prohibiting

"sexually harassing a member or guest of the University."

79. The October 8, 2001, Letter of Dismissal lists all the

following rules as gro unds for dismissing Respondent.

80. Rule 6C1 - 7.048 Academic Affairs; Suspension,

Termination, and other Disciplinary Action for Faculty:

Definition of Just Cause, Termination,

Suspension Pending Investigation,

Notification and Records of Disciplinary

Ac tion.

(1) Just cause for termination, suspension,

and/or other disciplinary action imposed on a

faculty member shall be defined as

incompetence or misconduct, which shall

include, but not be limited to, the

following:

* * *

(e) Conduct, professional o r personal,

involving moral turpitude;

* * *

(g) Action(s) which impair, interfere with,

or obstruct; or aid, abet, or incite the

impairment, interference with, or obstruction

of; the orderly conduct, processes, and

functions of the University. Refer to

Article V, Section (5)(G) of the University

Constitution and Rules 6C1 - 1.1007, 6C1 - 1.1008

and 6C1 - 7.010, F.A.C.

* * *

(n) Possession, Sale, Distribution of

Alcoholic Beverages or Nonprescribed Drugs.

81. 6C1 - 1.007 University of Florida; Code of Penaltie s.

(1) The following constitutes a uniform code

of penalties for violation of University and

Board of Regents rules which the President or

the President's designee is authorized to

impose on students, and faculty members,

administrative and Professional staff and

University Support Personnel System personnel

(hereinafter "employees"):

* * *

(c) Penalties for violation of standards of

conduct may range from counseling to

expulsion in the case of students or oral

reprimand to termination in the case of

emp loyees.

* * *

(2) These remedies are not exclusive of

other remedies provided under law.

82. 6C1 - 1.008 University of Florida; Disruptive Behavior.

(1) Faculty, students, Administrative and

Professional staff members, and other

employees . . . who i ntentionally act to

impair, interfere with, or obstruct the

mission, purposes, order, operations,

processes, and functions of the University

shall be subject to appropriate disciplinary

action by University authorities for

misconduct, as set forth in the a pplicable

rules of the Board of Regents and the

University and state law governing such

actions. Disruptive conduct and state law

governing such actions. Disruptive conduct

shall include, but not be limited to, the

following:

* * *

(m) Illegal posse ssion or misuse of drugs

and other controlled substances.

* * *

(p) Endangering the health, safety and

welfare of members or guests of the

University.

* * *

(q) Actions or statements which by design or

intent amount to intimidation or hazing or

a buse of others.

* * *

(s) Actions which impair, interfere with or

obstruct, or aid and abet or initiate the

impairment, interference with or obstruction

of the orderly conduct, processes and

functions of the University.

* * *

(2) This rule shall apply to acts conducted

on or off campus when relevant to the orderly

conduct, processes and functions of the

University.

83. 6C - 7.018 Academic Affairs; Academic Freedom and

Responsibility.

(1) Academic Freedom and Responsibility.

* * *

(b) The estab lished policy of the University

continues to be that the faculty member must

fulfill his/her responsibility to society and

to his/her profession by manifesting academic

competence, scholarly discretion, and good

citizenship. The university instructor

shou ld be constantly mindful that these roles

may be inseparable in the public view, and

should therefore at all times exercise

appropriate restraint and good judgment.

* * *

(2) Academic freedom is accompanied by the

corresponding responsibility to:

* * *

(b) Respect students, staff and colleagues

as individuals and avoid any exploitation of

such persons for private advantage;

* * *

(e) Recognize the responsibilities arising

from the nature of the educational process,

including such responsibilities, bu t not

limited to, observing and upholding the

ethical standards of their discipline;

participating, as appropriate, in the shared

system of collegial governance, especially at

the department/unit level; respecting the

confidential nature of the relationshi p

between professor and student; and adhering

to one's proper role as teacher, researcher,

intellectual mentor and counselor.

84. Rule 6C1 - 7.018, Florida Administrative Code, applies a

higher standard of behavior to professors than to ordinary

persons and requires them to be good citizens in their personal

life as well as in their public life. It is the province of

university administrators to determine how instruction is

delivered and what is, and is not, acceptable faculty behavior.

The determinatio n of how students are instructed and treated is

the right of the university's management, within the procedural

confines of the university's duly promulgated rules. A

professor's "conduct is not to be viewed in the same context as

would the conduct of an ordinary 'person on the street.' Rather

it must be judged in the context of the relationship existing

between a professor and a student within an academic

environment," Korf v. Ball State University , 726 F.2d 1222 (7th

Cir. 1984).

85. Rule 6C1 - 1.008, Flo rida Administrative Code, does not

limit good citizenship of professors to any campus boundaries or

only to situations when they are dealing with UF students. UF

faculty members hold a position of trust and power in the

academic community that extends bey ond the geographical confines

of the university campus. Regardless of whether a faculty

member's personal misbehavior directly impacts his own students,

or any UF student, that faculty member still represents the

university in all his/her professional con texts. Faculty

misconduct reflects unfavorably on the university as a whole and

can discourage responsible students from selecting the

university, not to mention discourage responsible parents from

financing students' attendance, and discourage responsibl e

foundations from bestowing scholarships on students and grants

upon the university.

86. Respondent's unspoken pressure upon his students to

attend "late night lab sessions" in local bars abuses the faculty

member - student relationship. Use of his posit ion and power over

their education and future careers in this manner is

unacceptable. Rule Sections 6C1 - 1.008(1)(q) and (2), Florida

Administrative Code, have been violated.

87. That is not to say that UF has a right to expect

Respondent to be a watchdog or babysitter for other adults, which

all of his graduate students were. The fact that Respondent

occasionally legally possessed alcohol, served alcohol, or drank

alcohol, even to excess, in the presence of other adults, in his

home, in bars, or even at professional conferences where the

conference organizers also served alcoholic beverages is without

significance. Unlike a high school teacher, a college

professor's conduct "must be judged in the context of her more

liberal, open, robust college surround ings." Texton v. Hancock ,

359 So 2d 895 (Fla. 1st DCA 1978). If Respondent had been

convicted of a specific traffic offense involving alcohol or

drugs (i.e. driving while intoxicated, driving under the

influence, vehicular homicide) or had injured someon e while

driving drunk, it would be a different situation. As it is, the

fact that Respondent occasionally drove a car while inebriated or

did not interfere with other adults driving while inebriated is

non - determinative in this proceeding.

88. Res pondent's sexual adventure with Ms. Pearce at Penn

State was not a quid pro quo situation. Respondent did not "hold

Ms. Pearce's paper presentation or career advancement over her

head" in order to receive sexual favors from her. Respondent did

the right thing in "backing off," but with his knowledge of her

condition and vulnerabilities, Respondent should never have taken

her to his room in the first place. His involvement with Ms.

Pearce under those conditions was the worst form of bad judgment,

violated his position of trust as her professor and mentor, and

violated the trust UF had placed in him to guide and mentor

graduate students. Rules 6C1 - 7.048(1)(e), 6C1 - 1.008(1)(s) and

(2), and 6C1 - 7.018 (1)(b) and (2)(b) and (c), Florida

Administrative Code, ha ve been violated.

89. Respondent also evidenced poor judgment, poor mentoring

skills, and reckless public behavior by the tequila bottle toss

and bra strap signing. These incidents could have exposed

Respondent, and/or his employer UF, to legal action f or reckless

endangerment with the bottle or sexual harassment due to the

signing and sexual witticisms. Rules 6C1 - 7.048(1)(g), 6C1 -

1.008(1)(s), and 6C1 - 7.018(1)(b) and (2)(b) and (e), Florida

Administrative Code, have been violated.

90. There are two l ines of Florida case law regarding the

"morality" of possession of minimal amounts of marijuana. One

line of cases holds that mere possession, without intent to sell,

does not constitute moral turpitude or bad moral character.

Dept. of Ins. V. Panagos , D OAH Case No. 00 - 0455 (Recommended

Order June 30, 2000; Milliken v. Dept. of Business and

Professional Regulation , 709 So. 2d 595 (Fla. 5th DCA 1998);

Pearl v. Florida Board of Real Estate , 394 So. 2d 189 (Fla. 3d

DCA 1981). However, the courts have taken another approach where

school teachers are involved. For teachers, mere possession of

marijuana is grounds for job termination and license revocation.

Brogan v. Ramputi , DOAH Case Nos. 98 - 0571 and 98 - 0572,

(Recommended Order October 28, 1998; Final Order December 28,

1998); Walton v. Turlington , 444 So. 2d 1082 (Fla. 1st DCA 1984);

Adams v. Professional Practices Services , 406 So. 2d 1170 (Fla.

1st DCA 1981). Although Respondent is a college professor, the

reasoning in the latter line of cases that posse ssion of

marijuana for personal use constitutes moral turpitude is more

appropriate and in keeping with the Florida Administrative Code

rules cited in UF's letter of dismissal. Rule 6C1 - 7.048(1)(e),

Florida Administrative Code, has been violated.

91. Th ere is no way UF or Penn State can promote their

drug - free workplace policies if UF employees in positions of

trust and mentorship flaunt those policies and the controlled

substance laws of the respective states.

92. The attitude of Ms. Moore, Ms. Bass , and Ms. Pearce,

to their own and/or Respondent's casual and repetitive possession

and use of marijuana is disturbing. The concept that Respondent

could have led them astray as to drugs and alcohol is

questionable. Mr. Carlin does not come off very wel l, either,

since Respondent apparently used marijuana in his home.

Nonetheless, Respondent's personal possession and use of the drug

and his tolerance of his students' and associates' use of this

controlled substance constitutes much more than a petty vio lation

of UF's drug - free workplace policy, as asserted in his Proposed

Recommended Order. It is a failure of responsible mentoring and

leading by example. Rules 6C1 - 7.048(1)(n) and 6C1 - 1.008(1)(m),

and Rule 7.018(2)(e), Florida Administrative Code, have been

violated.

93. Retaliation by Respondent against Ms. Moore was proven,

although mitigated in part by his misunderstood conversation with

Dr. Lindberg. Direct, intentional retaliation by Respondent

against Ms. Pearce was not proven, but his now inves tigating her

research leads to suspicion. In these circumstances, the change

of corresponding author on the work co - authored with Mr. Carlin

at least has the appearance of subtle intimidation. Ms. Bass and

Dr. Chapman have clearly damaged the professiona l standing of

Mr. Carlin and Ms. Moore. Normally, one should not be held

responsible for his friends' rancor in springing to one's

defense, but here it is clear that some damage was done to

Mr. Carlin by Respondent's confiding in Chapman in the first

pl ace instead of keeping the matter confidential as he had been

instructed. Respondent's involving Dr. Chapman of "the elite

100," and providing the deans' names and addresses was at the

least further evidence of Respondent's bad judgment and has

exposed U F to "retaliation" claims by Mr. Carlin and Ms. Moore

under Chapter 760, Florida Statutes. At least indirectly,

Respondent has been guilty of the intimidation proscribed by Rule

6C1 - 1.008(1)(q), Florida Administrative Code.

94. Research has not revealed any case before DOAH in which

a state college professor has been terminated on similar grounds.

Respondent relies on Texton v. Hancock , supra. , wherein a tenured

college professor could not be terminated for exercising academic

freedom of speech in the cl assroom, social drinking, and passing

out from alcohol in a student's home.

95. The present case does not involve the freedom to state

one's opinions in the classroom or on the street. It is more

than a single error of judgment or good taste. Responden t's

pattern of behavior is beyond Texton's parameters. The charges

in the Letter of Dismissal have been established. There is just

cause to terminate Respondent. There is no suggestion that

Petitioner is an alcoholic or a drug addict whom suspension and

rehabilitation may help. Therefore, termination is appropriate.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the University of Florida enter a

final order ratifying its termination of Respondent effective

October 10, 2001.

DONE AND ENTERED this 31st day of May, 2002, in Tallahassee,

Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 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 31st day of May, 2002.

ENDNOTES

1/ Pursuant to S ection 240.253, Florida Statutes, and prior

Orders herein, Petitioner's Exhibit 1 and Respondent's Exhibit 9

are confidential items to be returned under seal to Petitioner

with this Recommended Order. Petitioner's Exhibits 13 and 14

were returned to Petit ioner as not admitted. Respondent's

Exhibit 8 was returned to Respondent as neither offered nor

admitted.

2/ Respondent apparently received a stipulation for this

peculiar procedure from Petitioner but did not seek leave of the

Administrative Law Judg e.

3/ The parties' stipulated facts are extensive and occasionally

ungrammatical. The same information has been conveyed in

somewhat less detail without damaging the parties' agreement or

intent, and additional Findings of Fact have been made upon the

e vidence.

4/ Standard Jury Instruction (Civil) No. 2.2b reads in pertinent

part:

WEIGHING THE EVIDENCE

It is up to you to decide what evidence is

reliable. You should use your common sense

in deciding which is the best evidence, and

which evidence s hould not be relied upon in

considering your verdict. You may find some

of the evidence not reliable, or less

reliable than other evidence.

You should consider how the witnesses

acted, as well as what they said. Some

things you should consider are:

1. Did the witness seem to have an

opportunity to see and know the things about

which the witness testified?

2. Did the witness seem to have an

accurate memory?

3. Was the witness honest and

straightforward in answering the attorneys'

questions?

4 . Did the witness have some interest in

how the case should be decided?

5. Does the witness' testimony agree with

the other testimony and other evidence in the

case?

6. Was the testimony of the witness

reasonable when considered in the light of

all the evidence in the case and in the light

of your own experience and common sense.

(Give the following paragraphs only as

required by the evidence.)

7. Has the witness been offered or

received any money, preferred treatment or

other benefit in order t o get the witness to

testify?

8. Had any pressure or threat been used

against the witness that affected the truth

of the witness' testimony?

9. Did the witness at some other time make

a statement that is inconsistent with the

testimony the witness ga ve in court?

10. Was it proved that the witness had been

convicted of a felony or a crime involving

dishonesty or false statement?

11. Was it proved that the general

reputation of the witness for telling the

truth and being honest was bad?

You may rely upon your own conclusion about

the witness. A juror may believe or

disbelieve all or any part of the evidence or

the testimony of any witness.

5/ Respondent admits to using illegal drugs in the presence of

UF students prior to becoming a professor but not while employed

at UF, except as set out infra . on July 6, 2001.

6/ Respondent testified that holding, sniffing, and smoking "to

me is the same thing."

COPIES FURNISHED :

Carla D. Franklin, Esquire

Franklin, Donnelly & Gross

408 West University Avenue

Suite 601

Gainesville, Florida 32601

Kirk Y. Griffin, Esquire

50 Staniford Street

Boston, Massachusetts 02114

Steven D. Prevaux, Esquire

University of Florida

123 Tigert Hall

Post Office Box 113125

Gainesville, Florida 32611 - 3125

Pam J. Bernar d, General Counsel

University of Florida

123 Tigert Hall

Gainesville, Florida 32611

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.