17-006253 St. Petersburg College vs. Marvin Bright Status: Closed Recommended Order on Wednesday, April 4, 2018.

Summary: College proved that Respondent was guilty of misconduct in office by failing to promptly report that he had been arrested on two felony charges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG COLLEGE,

Petitioner,

vs. Case No. 17 - 6253

MARVIN BRIGHT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander c onducted a

hearing in this case on February 1 2, 13, and 14, 2018, in

St. Petersburg, Florida.

APPEARANCES

For Petitioner: Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairban ks Avenue

Winter Park, Florida 32789 - 7108

For Respondent: Cynthia N. Sass, Esquire

Jennifer D. Zumarraga, Esquire

Sass Law Firm

601 West Dr. Martin Luther

King, Jr. B oulevard

Tampa, Florida 33603 - 3449

STATEMENT OF THE ISSUE

The issue is whether Respondent should be terminated from

employment for the reasons stated in the Final Disposition -

Notice of Dismissal (Notice), dated October 11, 2017.

PRELIM INARY STATEMENT

On October 11, 2017, the President of St. Petersburg

College (College) issued a Notice advising Respondent, then the

Provost of the Tarpon Springs Campus, that he was being

terminated effective that date for the following reasons:

1) h e failed to timely advise his supervisor and the College

administration of his arrest and the nature of the charges;

2) he failed to provide the College with information and

requested documentation regarding the arrest and allegations;

and 3) he failed to immediately return College property as

requested. Respondent timely requested a formal hearing and the

matter was referred by the College to the Division of

Administrative Hearings to conduct a formal hearing to resolve

the dispute.

At the final hearin g, Petitioner presented the testimony of

five witnesses. Petitioner's Exhibits 1, 2, 4 through 15,

17 through 19, and 21 were accepted in evidence. Exhibit 3 was

accepted as a proffer only. Respondent testified on his own

behalf and presented the te stimony of four witnesses.

Respondent's Exhibits 1 through 13, 15 through 23, 26 through

30, 32, 34, 38, 42 (pages 00309 and 00310 only), and 43

through 47 were accepted in evidence. Respondent's Motion for

Sanctions pursuant to sections 120.595(1) and 57.105, Florida

Statutes, is addressed in the Conclusions of Law.

A five - volume Transcript of the proceeding was prepared.

Both parties filed proposed recommended orders (PROs), which

have been considered.

FINDING S OF FACT

A. Background

1. The Co llege is a public institution of higher education

charged with the responsibility of providing post - secondary

education. Currently, there are approximately 33,000 students

enrolled at the College. It has eight campuses, including the

Tarpon Springs Campu s. Seven of the campuses have Provosts, who

report to the Senior Vice President of Student Services. The

College is overseen by a five - member Board of Trustees (Board),

each Trustee appointed by the Governor.

2. In this contentious dispute, the Colleg e seeks to

terminate Respondent from his position as Provost of the Tarpon

Springs Campus, a position he has held since 2014 under an

annual Contract for Employment for Administrative Personnel of

Community Colleges. The contract has been renewed three ti mes,

most recently for a term beginning on July 1, 2017, and ending

June 30, 2018. The College, however, can decline to renew his

contract for no cause at the end of each term.

3. The annual contract provides that "the Board may

suspend or dismiss the Ad ministrator [Provost] for cause

pursuant to the applicable provisions of the Florida Statutes

and the Board of Trustees' Rules and Colleges Procedures."

Also, under Board Rule 6Hx23 - 2.2012 (rule 23 - 2.2012), the

College can terminate contractual employees for "immorality,

misconduct in office, incompetency, gross insubordination,

willful neglect of duty, drunkenness or conviction of any crime

involving moral turpitude." In this case, the College relies

upon misconduct in office as the ground for dismissal.

4. The contract requires Respondent to comply with all

relevant statutes and rules of the State Board of Education, the

State Board of Community Colleges, and the Board of Trustees.

He also is required to comply with the terms of any College

internal po licies and procedures in effect at the time that his

first contract became effective, and continuing throughout his

term of employment.

5. The position of Provost is a very high - ranking

administrative position. The Provost is responsible for

overseeing a ll aspects of student services, which includes

student complaints of harassment and discrimination, as well as

working in partnership with Academic Deans and the faculty. It

is a highly visible position with the College and in the

community. The College characterized the position as the "face"

of the campus and the Tarpon Springs community. The Provost

also serves on various community boards and organizations to

represent the views of the College.

6. At the time of Respondent's hire in 2014, the Presi dent

was Dr. William Law, while Dr. Tonjua Williams served as Senior

Vice President, Student Services. Dr. Williams is now the

President and the one responsible for making the decision to

terminate Respondent's employment, subject to confirmation by a

maj ority of the Trustees.

7. Shortly after his hire in 2014, the College became

aware of allegations at his prior employment in Virginia, which

involved an inappropriate relationship with a subordinate female

employee. Dr. Law directed Dr. Williams to spe ak with

Respondent about the allegations. Respondent acknowledged to

her that the allegation was true, and, as a consequence, he was

moved from a position on campus to a district office position.

8. Dr. Law decided to give Respondent the opportunity to

continue to serve at the College, but the expectations of the

College with regard to his personal conduct were made very clear

in a memorandum to Respondent from Dr. Williams. It stated in

part that "it all boils down to exercising good judgment.

Modeli ng good judgment is highly valued at [the College] and has

a significant impact on staff morale, leadership effectiveness

and student success." Respondent acknowledged in writing that

he received the memorandum. According to the President, this

establish ed the expectation that he would always use good

judgment in matters concerning the College.

9. During his tenure at the College, Dr. Williams and

Respondent had what she characterized as a "great relationship,"

"a very close working relationship," and o ne that was "open and

transparent." She added "[t]here were no problems with us

reaching each other when we needed to speak and talk."

B. The Incident

10. Around 1:30 a.m. on August 21, 2017, a physical

altercation between Respondent and a female occu rred at her

apartment in New Port Richey. Although Respondent is married,

the two had been involved in an affair for around two years.

The female was not a student or employee of the College.

11. On Thursday, August 31, 2017, Respondent was served

wit h papers requiring him to appear for a hearing in circuit

court on a domestic violence injunction involving the female.

While attending the hearing on Friday, September 1, 2017,

Respondent was arrested by the Pasco County Sheriff's Office and

charged with two felonies, one for Burglary - Occupied Dwelling

Unarmed (§ 810.02(3)(a), Fla. Stat.), and another for Battery -

Commit Domestic Battery by Strangulation (§ 784.041(2)(a), Fla.

Stat). Both charges related to the incident that occurred on

August 21, 201 7.

12. After spending the night in jail, Respondent bonded

out on Saturday, September 2, 2017.

13. On October 26, 2017, the charges were dismissed by the

State Attorney after he declined to prosecute the matter.

C. Events After the Arrest

14. The College was closed officially for Labor Day

weekend on September 2, 3, and 4, 2017. On Tuesday morning,

September 5, 2017, Respondent texted Dr. Williams asking, "can

we talk privately tomorrow I have a home life situation but I

need to converse with you. " Respondent knew that Dr. Williams

planned to attend a conference at the Tarpon Springs Campus the

following day, and he intended to speak with her at that time.

Dr. Williams responded "absolutely." Nothing in the text

suggests the "home life situation " was related to a legal matter

or criminal arrest or that there was any urgency in meeting with

her. Nor did it suggest that the subject of the meeting

involved something that could potentially affect the College's

reputation or his continued employment. In fact, Dr. Williams

assumed he wanted to discuss "a personal matter."

15. Due to the threat of Hurricane Irma, then in the Gulf

of Mexico and headed towards the state, Dr. Williams did not

attend the conference the next day. Also, the College closed

officially on September 6, 2017, due to the hurricane and did

not reopen officially until September 18, 2017.

16. With the approval of his supervisor, Dr. Rinard,

Respondent flew to Maryland, where his wife and children reside.

He did not return to Flor ida until September 13, 2017. During

this intervening period, he did not attempt to contact his

supervisor or the President regarding his arrest.

17. Even though the College was closed for the hurricane,

administrators continued to perform duties and res ponsibilities

related to the safety and security of the College. Dr. Williams

conducted at least two conference calls per day via telephone or

Skype, where as many as 60 administrators would join in the call

to discuss situations on the campuses. Althoug h he was in

Maryland much of the time, Respondent joined in the conferences

on most, if not all, of those occasions. In fact, on Monday,

September 11, 2017, he texted Dr. Williams regarding the

situation on the Tarpon Springs campus, which had been convey ed

to him by his staff.

18. On September 12, 2017, Respondent texted Dr. Williams

and advised he was returning from Maryland. The text stated in

part: "I need to speak to you regarding a personal/family

matter. I will discuss all in detail with you." Again, it made

no reference to his arrest.

19. After he returned to Florida the next day, Respondent

and Dr. Williams agreed to meet on September 14, 2017, at a

local restaurant. However, the President later informed

Respondent that she was unable to mak e the meeting and needed to

reschedule. She attempted to reach him later that day by

telephone to reschedule the meeting but was unsuccessful. At

that point, she assumed Respondent wished to discuss a personal

family matter that did not involve the Colle ge.

20. The two exchanged texts again on Sunday, September 17,

2017, but Respondent chose not to mention his arrest.

21. Around noon on September 18, 2017, or 17 days

after his arrest, Respondent telephoned Dr. Williams, and, in a

15 - minute conversat ion, he advised her that he had been arrested

on September 1, 2017, he was innocent of the charges, and he had

retained counsel. He also told Dr. Williams that he was

involved in a relationship with a woman that went awry, and the

incident was not work - re lated. Respondent added that he had

gone to court on September 1, 2017, to file a restraining order

against the female, and he believed he was being scammed. 1/

22. During the call, Dr. Williams told Respondent she

needed more details. She specifically asked that he provide a

police report with the details of the incident and the name of

the victim to verify she was not a student. Dr. Williams also

told Respondent that he needed to contact Dr. Rinard, his

immediate supervisor, and tell him what had hap pened.

23. Had Respondent been unable to reach Dr. Williams by

telephone on September 18, 2017, his belated efforts to notify

the President would be further delayed, as Respondent's first

choice was to speak to her one - on - one, or if this was not

possible, to discuss the incident by telephone. His actions

also raise an inference that he always intended to speak with

the President, and not his direct supervisor.

24. Later that same day, September 18, 2017, Respondent

spoke with Dr. Rinard by telephone. A ccording to Dr. Rinard,

Respondent "informed [him] that he had had an affair, that the

woman he had an affair with had pressed charges, he was

arrested, that these were all lies, that she was a thief, she

had stolen property, [and he] admitted that he was wrong to have

had an affair." Dr. Rinard asked Respondent if the incident

involved a student or employee or occurred on College property.

He was told it did not. He did not provide Dr. Rinard with the

name of the victim. The following day, the two agai n spoke

briefly while attending a Board meeting. Respondent asked if he

needed anything more in reference to their conversation the

previous day and Dr. Rinard answered "no."

25. While at the Board meeting, Respondent spoke privately

with a Board member, Trustee Gibbons, and disclosed that he had

been arrested.

26. On the evening of September 18, 2017, the President

telephoned Respondent and commented that she was looking at the

charges on a website. She said she needed more information

regarding the in cident, but Respondent told her he had no

documentation regarding the arrest.

27. During the call, Respondent asked the President to

speak with his attorney who could provide any details that she

wanted concerning the charges. Although Dr. Williams tes tified

there was no agreement to speak with the attorney, Respondent's

criminal attorney, Mr. Theophilopoulos, testified that he

understood Dr. Williams had agreed to a conference call around

5:30 p.m. on September 20, 2017, so that he (the attorney) could

answer any questions she had. Dr. Williams denies that a

conference call was scheduled. Respondent contends otherwise

and says he went to his attorney's office and waited for her to

call at the scheduled time, and when she did not, they both

attempted t o call her from his office but were unsuccessful. 2/

28. Whether or not such a call was scheduled, it is

undisputed that it never took place. However, Dr. Williams

telephoned Respondent around 6:11 p.m. on September 20, 2017,

while he was driving home fro m his attorney's office. The Vice

President of Administrative/Business Services & Information

Technology, Mr. Miles, participated in the call. Mr. Miles has

oversight of the Human Resources Department.

29. During the call, Dr. Williams informed Respon dent that

he was being placed on administrative leave, with pay and

benefits, effective that date. Again, she requested a copy of

the police report or details of the incident, as the College

needed more information so that it could properly assess the

sit uation. Respondent replied that he had no written reports

but his attorney had "new information" regarding the charges.

Respondent was told to have his attorney contact the College

General Counsel, Ms. Gardner.

30. A few hours after the phone call, R espondent received

a memorandum from Dr. Williams via email confirming that he was

being placed on administrative leave, with pay and benefits,

until further notice. According to Dr. Williams, this would

give the College more time to thoroughly review the situation

before deciding what action to take. At that time, the College

still lacked the name of the victim and detailed information

regarding the arrest.

31. On September 20, 2017, Dr. Williams notified three of

the five Trustees about the incident an d shared with them the

information she had gathered up to that point. She also told

them she was still "working" on what action to take.

32. Respondent decided to return to Maryland the same

evening he was placed on administrative leave. He testified

th at while driving to Maryland, he received a call from Trustee

Gibbons, who told him the Board had voted to not terminate him

if he was cleared of the charges. This assertion was not

corroborated, and there is no record of any Board meeting at

which a vote would have taken place.

D. The Termination Process

33. On September 21, 2017, Dr. Rinard advised Tarpon

Springs faculty and staff that Respondent had been placed on

administrative leave and that an interim Provost had been

appointed. That evening, Dr. Williams and Mr. Miles spoke with

Respondent by telephone. They informed him that the College had

not yet received information regarding the arrest and instructed

Respondent to return his keys. Mr. Miles offered to meet with

him to pick up the keys. Ho wever, Respondent, who by then was

in Maryland, told them he had already mailed his keys to his

attorney. The following day, September 22, 2017, through its

own investigation, the College was able to obtain a copy of the

Pasco County Complaint Affidavit p roviding additional details

regarding the arrest.

34. On Saturday, September 23, 2017, Mr. Miles left a

voicemail for Respondent and reminded him that he wanted to meet

with him to obtain the keys to College property. Mr. Miles also

sent a text, which st ated, "Dr. Williams asked me to obtain your

work keys so I'm coming today," meaning that he (Mr. Miles)

would drive to Respondent's home in Palm Harbor or the campus

that day to retrieve the items.

35. In response to Mr. Miles' request, Respondent replied

by email that the keys had been sent to his attorney via Federal

Express from Maryland. He added that if the College had any

further questions, his attorney should be contacted.

36. As of Monday, September 25, 2017, the College had not

received any ad ditional information from Respondent or his

attorney regarding the arrest, and it had not received

Respondent's keys or swipe card.

37. On September 25, 2017, Dr. Williams determined that

termination proceedings should begin. The same day, Dr. Rinard

issued a memorandum recommending that Respondent be dismissed

from employment. The basis for the recommendation was as

follows:

You have engaged in misconduct by not timely

disclosing to the College your arrest and

the charges pending against you. You ha ve

also engaged in misconduct by not providing

the College with documentation related to

your arrest and not returning the College's

property upon request. You have also

engaged in misconduct by not being truthful

and forthcoming about the details of your

arrest.

38. The memorandum was actually prepared for Dr. Rinard's

signature by Mr. Miles, who oversees the Human Resources

Department and is also an attorney. According to the

memorandum, Respondent's actions violated rule 23 - 2.2012, which

authorizes t he College to terminate an administrator for the

offense of "misconduct in office." The recommendation also

referred to rule 6Hx23 - 2.19, which outlines the procedure the

College must follow when it proposes to terminate an employee.

39. The following day, September 26, 2017, Respondent's

attorney emailed the General Counsel asking for directions on

where to return the keys and swipe card that were in his

possession. She replied that all College property, including

any electronic devices or computers, should be delivered to the

security desk lobby of the district office in St. Petersburg.

40. On September 28, 2017, five days after Dr. Williams'

directive, the keys and swipe card were delivered and secured by

the College. The College did not receive Re spondent's college -

owned laptop and other electronic devices until October 11,

2017.

E. The Predetermination Hearing and Termination

41. After the recommendation to terminate was issued,

Respondent requested a predetermination hearing, which is

afforded an employee before a decision is made regarding

termination.

42. On October 5, 2017, a hearing was conducted by the

Senior Vice President of Instructional & Academic Programs,

Dr. Anne Cooper, who had the authority to affirm, modify, or

reject Dr. Rinar d's recommendation. Respondent was accompanied

by his attorney at the hearing.

43. At the hearing, Respondent was provided a timeline of

events. In response, Respondent presented his own timeline for

reporting the arrest, as well as a written statement from the

alleged victim in the incident which resulted in his arrest.

44. On October 9, 2017, Dr. Cooper issued a recommendation

to the President that Dr. Rinard's decision to terminate

Respondent's employment be upheld. The recommendation is found

in Petitioner's Exhibit 11.

45. By letter dated October 11, 2017, the President

advised Respondent that she was upholding the recommendation for

dismissal because Respondent:

1. Failed to timely advise supervisor and

college administration of the arrest a nd

nature of the charges;

2. Failed to provide the college with

information and requested documentation

regarding the arrest and allegations; and

3. Failed to immediately return college

property as requested.

46. These grounds differed slightly from those in the

memorandum signed by Dr. Rinard on September 25, 2017. Whereas

Dr. Rinard's memorandum stated that Respondent had failed to

timely inform the College of his arrest and pending charges,

Dr. Williams' Notice stated that Respondent had "[f]aile d to

timely advise supervisor and college administration of the

arrest and nature of the charges." Whereas the memorandum

stated that Respondent had failed to provide the college with

"documentation related to [his] arrest," the Notice stated that

he had "[f]ailed to provide the college with information and

requested documentation regarding the arrest and allegations."

Finally, whereas the memorandum stated that Respondent had not

returned the College's property upon request, the Notice stated

that Respon dent had "[f]ailed to immediately return college

property as requested."

47. Although Respondent contends he is prejudiced because

the original charges were modified, the allegations in the

memorandum and Notice are substantially the same, and Responden t

did not demonstrate how he was prejudiced by the minor changes.

No matter which set of charges apply, the College has

established that the allegations are true.

F. The College Regulations and Policies

48. Both parties agree there is no specific Colleg e

regulation that requires employees to immediately notify their

supervisor or other College officials after they are arrested

and charged with a crime. However, Dr. Williams stated there is

an expectation that a high - ranking employee, such as a Provost,

should immediately notify his supervisor, within one or two

working days, given the repercussions to the College that might

arise if and when the charges became public. 3/

49. The College relies on rule 23 - 2.2012 as the "principal

ground for prosecution i n this case." That rule allows the

College to dismiss an employee under written contract for

"misconduct in office." The term is not further defined by rule

or statute that is applicable to the College. Because

Respondent is not a career service employe e, the College cannot

rely on procedures applicable to that category of employees.

G. Analysis of Respondent's Conduct

50. At hearing, Respondent characterized the incident as

"a personal and private matter" that was unrelated to the

College. However, h e agreed he had an obligation to tell the

President and Dr. Rinard about the incident so that the College

would not be blind - sided if the incident became public. He

contends he made good - faith efforts to contact Dr. Williams by

texting her on several occa sions to request a meeting. But none

of the texts stated, or even suggested, that he needed to speak

with her about a work - related matter or that he had been

arrested for two felony charges. Moreover, these efforts

evidence the fact that he knew he had a n obligation to timely,

completely, and candidly report anything that could impact his

effectiveness as a Provost or the reputation of the College. He

failed to fulfill this obligation.

51. Respondent does not dispute the fact that he made no

effort to n otify his immediate supervisor, Dr. Rinard, regarding

his arrest until Dr. Williams instructed him to do so on

September 18, 2017. More than likely, this was because he had

very little contact with Dr. Rinard, who had assumed his

position in July 2017. O n the other hand, he had a much closer

relationship with the President, and she is the individual who

makes the final decision. According to Respondent, it was

important that he discuss the matter one - on - one with the

President due to the "nature of the se nsitivity of the situation

itself, my accuracy of understanding the accusations and the

false accusations, which were also racially motivated."

52. After Respondent was unsuccessful in personally

speaking with the President on September 6, 2017, he shou ld have

immediately disclosed his arrest by telephone. The record shows

that he had ample opportunity to report the incident to the

President by telephone beginning on the day after he was

arrested. His failure to do so exhibits a lack of good judgment

a nd trustworthiness.

53. The delay in reporting the arrest from September 1

until September 18, 2017, was unreasonable in light of all

circumstances. As Dr. Williams noted, "there is an expectation

of good judgment for Provost and campus leaders, Deans, a nd

others in that role. And you always expect your leaders, you

know, [to] protect the Institution and make sure they are aware

of what is going on."

54. In the same vein, Mr. Miles pointed out that the

College ended up having "to get the information o urselves"

after Respondent failed to provide additional information

regarding the arrest. This led him to ask whether he could

"trust Dr. Bright to give me what I need to do the job that I

need to do." He added that it was imperative that the College

kn ow "what exposure" it might have and how to "react to the

situation" should the incident become public.

55. Dr. Cooper, who conducted the predetermination meeting

and is the chief academic officer of the College, testified that

the Provost is a high - pro file position and the face of the

campus in the community. She noted that even though the College

was closed for a hurricane, "there were multiple opportunities

to report the incident to his direct supervisor, Dr. Rinard, and

he failed to do so." She als o testified that the incident could

have blind - sided the President and Board of Trustees and put

"the College in a very poor light in regard to the community."

She added that "there was potential for multiple issues

associated with not reporting it sooner ," and "someone in that

high - profile leadership position would know that." She summed

it up by saying that even if there was not a specific written

policy requiring Respondent to promptly report the incident to

his superiors, an obligation to do so "is le adership 101."

56. Besides failing to report the incident for 17 days,

the evidence as a whole shows that, once the incident was

reported, Respondent was non - responsive, uncooperative, and

somewhat evasive in responding to Dr. Williams' direction to

prov ide her additional information regarding the arrest and the

name of the victim. The President had legitimate reasons for

requesting additional information. Without this information,

the College was at risk of having its reputation and credibility

damaged . As the President pointed out, she asked for

information, and when she did not receive it, this forced her to

"go dig [herself] to find information" from another source.

This should not be the job of the President.

57. Finally, as previously found, Res pondent did not

promptly turn in all College keys and equipment, despite being

told to do so on numerous occasions.

CONCLUSIONS OF LAW

58. The College is required to demonstrate, by a

preponderance of the evidence, that good and sufficient reason

exists t o terminate Respondent's contract with the College.

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d

DCA 1990); St. Petersburg Coll. v. Rodriguez , Case No. 05 - 0343

(Fla. DOAH Feb. 8, 2006; SPC Mar. 23, 2006), aff'd , 949 So. 2d

208 (Fla. 2d DCA 2007)(per curiam).

59. Under the Employment Agreement executed by the

parties, "[t]he Board may suspend or dismiss the Administrator

for cause pursuant to the applicable provisions of the Florida

Statutes and the Board of Trustees' Rules and Colleges

Procedures."

60. Florida Administrative Code Rule 6A - 14.0411(4)

authorizes each college board of trustees to "adopt policies

addressing positions and contracts" of employees under written

or continuing contracts.

61. Pursuant to this authority, Board rule 23 - 2.2012

provides that an employee under written contract "may be

suspended or dismissed upon recommendation of the President at

any time, provided the charges must be based on immoralit y,

misconduct in office, incompetency, gross insubordination,

willful neglect of duty, drunkenness or conviction of any crime

involving moral turpitude." The College maintains that

Respondent's conduct constitutes misconduct in office within the

meaning o f the rule.

62. The term "misconduct in office" is not defined by

statute or rule applicable to community colleges. However, the

definitions in rule 6A - 5.056, which relate to the suspension and

dismissal of personnel by school districts, are instructive.

See , e.g. , Seminole Cmty. Coll. v. Brown , Case No. 08 - 3265 (Fla.

DOAH Mar. 13, 2009; SCC Oct. 19, 2009).

63. Rule 6A - 5.056(2)(e) defines the term "misconduct in

office" as "[b]ehavior that reduces the teacher's ability or his

or her colleagues' abilit y to effectively perform duties."

64. By a preponderance of the evidence, the College has

established that Respondent's ability to effectively perform his

duties has been reduced by waiting 17 days to notify the

President and his supervisor that he had be en arrested for two

felonies. Despite having numerous opportunities to do so over

that timeframe, he intentionally and repeatedly delayed

reporting his arrest. This conduct is cause for questioning his

reliability, judgment, and trustworthiness and is a clear

example of misconduct.

65. Moreover, once disclosure was made, he failed to

comply with requests by the President to provide additional

written details regarding the arrest. This caused the College

(and President) to seek that information from ot her sources.

Coupled with his failure to timely report the arrest, it

evidences a lack of judgment, candor, and honesty on

Respondent's part and has resulted in a loss of trust and

confidence of those in the College with whom he must work. To

this end, t he College, as an employer, must have discretion and

control over the management of its personnel and internal

affairs. This includes the prerogative to remove employees

whose misconduct hinders efficient operation.

66. By itself, a failure to timely r eturn College property

when requested would not warrant dismissal. However,

Respondent's failure to do so, when coupled with the other

misconduct, reinforces the decision by the College to dismiss

him.

67. Respondent contends that he was under no express duty,

by policy or rule, to report his arrest and therefore he cannot

be lawfully dismissed. This contention is misplaced.

Respondent should not need a written rule to explain that his

actions were inherently antithetical to his employer's

interests. O ffenses other than those specifically enumerated in

a policy or rule may constitute just cause when they are so

serious as to impair the individual's effectiveness. Misconduct

in office may be established where the conduct engaged in by the

individual is of such a nature that it speaks for itself in

terms of its seriousness and its impact on the individual's

effectiveness. For example, a failure to exercise professional

judgment and integrity constitutes misconduct in office and

justifies termination of a n employee. Palm Bch. Cnty. Sch. Bd.

v. Finney , Case No. 15 - 7009TTS (Fla. DOAH Jan. 4, 2017; PBCSB

Mar. 8, 2017); Palm Bch. Cnty. Sch. Bd. v. Sorensen , Case No.

0 9 - 2749 (Fla. DOAH Nov. 18, 2009; PBCSB Jan. 27, 2010) .

68. Respondent also contends his ef fectiveness to perform

his duties was not impaired because he continued to work at a

high level during the closure of the College due to Hurricane

Irma. This argument misses the point. Impaired effectiveness

can be inferred from certain misconduct. Purv is v. Marion Cnty.

Sch. Bd. , 766 So. 2d 492, 498 (Fla. 5th DCA 2000). There is

ample evidence in the record that the College has lost

confidence in Respondent's ability to effectively perform his

job. Also, there is competent and substantial evidence tha t

Respondent's colleagues no longer trust him to use good judgment

or exhibit honesty in his dealings with them.

69. When all of the infractions are considered together

with the high standards to which educators are held, termination

is the appropriate p enalty.

70. Respondent has requested sanctions pursuant to

section 120.595(1). Even if he prevails, however, attorney fees

are not recoverable against an agency under this statute when

the agency is the initiator of the action. This is because by

defin ition the agency cannot be a nonprevailing adverse party

since it is not trying to change the outcome of its own action.

See § 120.595(1)(e)3., Fla. Stat. Therefore, relief under this

statute is not available. He also has requested attorney's fees

pursu ant to section 57.105(5). However, that provision requires

that a separate final order address the issue. Accordingly,

jurisdiction is retained for the limited purpose of resolving

the issue if a final order is rendered in Respondent's favor.

71. Respon dent's Motion to Strike Paragraph 78 of

Petitioner's Post Hearing Brief, which relies on an exhibit not

moved into evidence, is granted.

72. Finally, Respondent's contention that the College

violated section 1021.81(1)(b) and rule 6A - 14.047 by releasing

t he recommendation of Dr. Rinard to a newspaper should be raised

in another forum.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that St. Petersburg College enter a final order

terminating Respondent's empl oyment as Provost at the Tarpon

Springs Campus.

DONE AND ENTERED this 4th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April , 2018 .

ENDNOTE S

1/ It is unclear wheth er the victim or Respondent, or both, were

attempting to secure a restraining order against the other

individual. Although Respondent testified he was seeking one,

he was served with papers on August 31, 2017, requiring him to

attend a circuit court heari ng the following day on the victim's

request for a restraining order.

2/ During its rebuttal case, the College offered into evidence

the telephone records of Dr. Williams on September 20, 2017.

They did not reflect any incoming calls from Respondent o r his

attorney on that date. See Pet'r Ex. 21. After the hearing,

Respondent attempted to secure the telephone records of his

attorney to prove that the attorney had called the President on

September 20, 2017. However, the cell phone company, Frontier

C ommunications, was unable to produce such records.

Respondent's Request for Judicial Notice of the cell phone

company's letter is denied. In any event, resolution of this

minor dispute is not necessary in order to resolve the

termination issue.

3/ As it turned out, the Tampa Bay Times received an anonymous

email disclosing Respondent's arrest. This prompted a reporter

to call the College public information officer on September 28,

2017, to inquire whether the College was aware of Respondent's

arrest, when it learned of his arrest, what was his status with

the College, and what action the College intended to take.

COPIES FURNISHED:

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 W. Fairbanks Avenue

Winter Park, Florida 32789

(eServ ed)

Cynthia N. Sass, Esquire

Sass Law Firm

601 West Dr. Martin Luther King Jr. Boulevard

Tampa, Florida 33603

(eServed)

Jennifer D. Zumarraga, Esquire

Sass Law Firm

601 West Dr. Martin Luther King Jr. Boulevard

Tampa, Florida 33603

(eServed)

Matthe w Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Suzanne L. Gardner, General Counsel

St. Petersburg College

Post Office Box 13489

St. Petersburg, FL 33733 - 3 489

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Nathan Stonecipher, Chair

St. Petersburg College

Post Office Box 13489

St. Pete rsburg, FL 33733 - 3489

(eServed)

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 agenc y that

will issue the Final Order in this case.