97-002474 St. Petersburg Junior College vs. Jeffrey D. Brooks Status: Closed Recommended Order on Friday, April 24, 1998.

Summary: Dismissal of instructor sought for violation of college sexual harassment policy. Based on facts, suspension recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG JUNIOR COLLEGE, )

)

Petitioner, )

)

vs. ) Case No. 97-2474

)

JEFFREY D. BROOKS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on January 7, 1998, in St. Petersburg, Florida, before

Lawrence P. Stevenson, a duly designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maria N. Sorolis, Esquire

Shannon B ream, Esquire

Allen, Norton and Blue

Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue

Tampa, Florida 33606

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides

2595 Tampa Road, Suite J

Tampa, Florida 34684

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Petitioner, St. Petersburg Junior College, should dismiss

Respondent from his employment and terminate his continuing

contract.

PRELIMINARY STATEMENT

By a Pet ition and Notice to Respondent of Hearing Rights

(the “Petition”) filed with the Board of Trustees of St.

Petersburg Junior College (the “Board”) on May 8, 1997, pursuant

to Rule 6A-14.0411(4), Florida Administrative Code, Petitioner

petitioned the Board for the dismissal of Respondent from all

employment at St. Petersburg Junior College (the “College”),

effective as of the expiration of Respondent’s term of employment

for the 1996-97 college year.

By letter to the Board dated May 13, 1997, Respondent

requested a formal administrative hearing regarding the proposed

termination of his employment, and requested that the Petition be

forwarded to the Division of Administrative Hearings for

assignment of an Administrative Law Judge to hear the case. By

letter dated May 20, 1997, Petitioner forwarded the Petition to

the Division of Administrative Hearings for assignment of an

Administrative Law Judge and the conduct of a formal

administrative hearing in this matter, pursuant to Section

120.57(1), Florida Statutes.

The case was originally assigned to Judge J. Lawrence

Johnston and scheduled for hearing on August 13, 1997. Upon

joint motion by the parties, the hearing was continued and

rescheduled for January 7, 1998. Due to scheduling conflicts,

the case was reassigned to the undersigned prior to the final

hearing.

At the final hearing, Petitioner presented the testimony of

Carl M. Kuttler, Jr., President of St. Petersburg Junior College;

Myrtle H. Williams, Associate Provost of the Gibbs Campus of St.

Petersburg Junior College; Charles L. Roberts, Provost of the

Gibbs Campus; George M. Greenlee, an instructor at St. Petersburg

Junior College; and Kimberly Zemola, a former student at St.

Petersburg Junior College. Respondent testified in his own

behalf, and also presented the testimony of Ernest Hensley, Mel

Stone, and George Leonard, instructors at St. Petersburg Junior

College; and Ray S. Wilson, a retired instructor at

St. Petersburg Junior College.

Petitioner’s Exhibits 1-6 were admitted into evi dence.

Respondent’s Composite Exhibit 1 was admitted into evidence.

A transcript of the final hearing was filed at the Division

of Administrative Hearings on February 3, 1998, and the parties

filed proposed recommended orders on March 5, 1998.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. Respondent is an instructor in computer programming and

networking at the College.

2. Respondent has been an instructor at the College since

1983. Since the 1986-87 academic year, Respondent has worked

under a continuing contract of employment. A continuing contract

is tantamount to a tenured position, entitling the instructor to

maintain his position from year-to-year unless terminated by

mutual consent, by the instructor’s resignation, or by the

suspension or removal of the instructor for cause pursuant to the

statutes and rules of the State Board of Education.

3. Respondent has recei ved at least above-average

evaluations of his job performance both from the institution and

from his students during his tenure at the College. Respondent

has not been subject to disciplinary proceedings of any kind

prior to or since the incidents giving rise to this proceeding.

4. Kimberly Zemola, a married woman in her late twenties,

was a student in Respondent’s classes during Session II and

Session III of the 1994-95 academic year.

5. In January 1995, while she was a student in Respondent’s

class, Ms. Zemola wrote an anonymous note to Respondent

suggesting that they commence a relationship and that Respondent

should indicate his interest by wearing a certain sweater to

class on a certain day.

6. Respondent wore the sweater as suggested in the note.

Respondent testified that his purpose in doing so was not to

initiate a relationship, but to identify the author of the note,

discover her problem, and direct her into obtaining assistance.

7. Respondent and Ms. Zemola met. Their testimony was

consistent in describing that they were both involved in troubled

marriages, spent a great deal of time discussing their problems

with each other, and, over a period of weeks, became close

friends and confidants. During the period of January through May

1995, the relationship was not sexual, though there was some

holding of hands and kissing during their meetings.

8. During the summer session of 1995, while Ms. Zemola was

a student in Respondent's class, Respondent and Ms. Zemola

engaged in consensual sex. Both Respondent and Ms. Zemola

testified that this occurred on only one occasion, in June 1995.

9. Respondent and Ms. Zemola continued their relationship

until December 1995, at which point Ms. Zemola ended it.

10. Ms. Zemola testified that in January 1996, after she

ended the relationship with Respondent, she was diagnosed as

clinically depressed. She testified that she believed Respondent

took advantage of her depressed condition in pursuing a

relationship with her.

11. Respondent testified th at Ms. Zemola mentioned suicidal

thoughts on one occasion in late 1995, and that she revealed to

him that she had been addicted to drugs and was a victim of child

abuse. Nonetheless, Respondent testified that he had no

knowledge Ms. Zemola was fighting depression during the period of

their relationship.

12. In January 1996, John Zemola, the husband of Kimberly

Zemola, phoned Myrtle Williams, Associate Provost of the Gibbs

Campus, to complain that Respondent had an affair with his wife.

Ms. Williams testified that Mr. Zemola was very agitated, so she

invited him to her office to discuss the matter.

13. Mr. Zemola met in person with Ms. Williams, and a

little later in the day had a second meeting with both

Ms. Williams and Charles Roberts, the Provost of the Gibbs

Campus. Ms. Williams and Dr. Roberts testified that Mr. Zemola

was very agitated and upset, expressing a great deal of anger

toward Respondent. Mr. Zemola repeatedly demanded to know what

the College was going to do about the situation.

14. Shortly after his meeting with Mr. Zemola, Dr. Roberts

called Respondent and asked him to come over to his office. Dr.

Roberts testified that his main concern in calling Respondent was

to warn him of Mr. Zemola’s angry and agitated state.

Dr. Roberts also alerted campus security of the situation.

15. At this meeting with Dr. Roberts, Respondent openly and

voluntarily acknowledged his relationship with Ms. Zemola,

including the romantic aspects thereof. The only discrepancy was

that Respondent recalled the sexual encounter as having occurred

after Ms. Zemola was a student in his class, whereas Ms. Zemola

recalled that it occurred when she was a student in Respondent’s

class.

16. Ms. Williams and Dr. Roberts investigated the matter

further, attempting to set up a meeting with Ms. Zemola herself.

It took them roughly ten days to two weeks to set up this

meeting, which finally occurred in Dr. Roberts’ office. Present

at the meeting were Dr. Roberts, Ms. Williams, and the Zemolas.

17. At this meeting, Ms. Zemola acknowledged the

relationship with Respondent, and acknowledged that it was she

who initiated it. Both of the Zemolas were adamant that

Respondent should not be permitted to continue teaching at the

College.

\\ 18. Mr. Zemola in particular seemed intent on seeing

Respondent punished. Ms. Williams testified that Mr. Zemola

telephoned her “all the time talking about what are we going to

do about Mr. Brooks.”

19. Mr. Zemola’s threatening demeanor led Ms. Williams to

move Ms. Zemola’s classes to a different campus, so that

Respondent and Ms. Zemola would not be in each other’s presence.

Ms. Williams testified that this precaution was taken, not

because of Respondent or Ms. Zemola, but because of John Zemola.

20. No evidence was presented that Respondent ever

attempted to contact Ms. Zemola after she ended the relationship.

21. In January 1996, Ms. Williams began attempting to get

Ms. Zemola to sign an affidavit stating the facts of the

situation. Ms. Zemola initially declined to do so, her stated

reason being that she feared Respondent’s influence in the local

market could jeopardize her academic future.

22. No evidence was presented that Respondent ever took any

action to adversely affect Ms. Zemola’s academic standing or

career, either within or outside of the College setting.

23. In a memorandum to Respondent, dated February 8, 1996,

Dr. Roberts recounted the details of the charges leveled by the

Zemolas, as well as Respondent’s admissions regarding his

relationship with Ms. Zemola. The memorandum recited portions of

the College’s “Sexual Harassment Policy and Definitions” (the

“Policy”). Under the Policy, “sexual harassment” is defined as:

An employee’s or a student’s unwelcome sexual

advances, requests for sexual favors, and

other verbal or physical conduct of a sexual

nature, sexually related jokes, display of

pornographic material in the workplace or an

academic or student setting (An academic or

student setting includes all settings on

campus, off-campus clinical programs, off-

campus courses, and off-campus college-

sponsored events), when

1. submission to such conduct is made

explicitly or implicitly a term or condition

of an individual’s employment or an

individual’s treatment as a student;

2. submission or rejection of such conduct

by an individual is used as the basis for

employment decisions or the treatment of a

student affecting such individual; or

3. such conduct has the purpose or effect of

unreasonably interfering with an individual’s

work or a student’s academic performance or

creating a sexually intimidating, hostile or

offensive working or academic environment.

24. The definition quoted above does not apply to the

conduct alleged against Respondent, though a later section of the

Policy, labeled “Instructor-Student Relationships,” appears to

broaden the definition, as indicated in the relevant portion

quoted below:

This rule applies to instructor-student

relationships.

In the instructor-student context, the term

sexual harassment has a broader impact. The

fundamental element of such behavior is the

inappropriate personal attention, including

romantic and sexual relationships with a

student by an instructor or staff member who

is in a position to determine a student’s

grade or otherwise affects the student’s

academic advancement. Because the

instructor-student relationship is one of

professional and client, the above

inappropriate behavior is unacceptable in a

college; it is a form of unprofessional

behavior which seriously undermines the

atmosphere of trust essential to the academic

setting.

25. Both President Kuttler and Dr. Roberts testified that,

in their opinion, the language quoted in the preceding paragraph

broadened the definition of “sexual harassment” as applied to the

instructor-student relationship, such that any form of romantic

or sexual relationship between an instructor and a student

constitutes sexual harassment, at least when the instructor is in

a position to determine the student’s grade or otherwise affect

the student’s academic advancement.

26. The Policy also forbids retaliation against any person

who has filed a complaint or complained about sexual harassment.

No evidence was presented indicating that Respondent took any

retaliatory action against Ms. Zemola.

27. The Policy states that discipline for violation of its

provisions “will depend on the nature of the incident,” but that

the range of such discipline is from admonishment to dismissal.

28. The February 8, 1996, memorandum goes on to state that,

because of the seriousness of the alleged violations and because

a violation of the Policy could lead to a recommendation of

suspension or dismissal, Dr. Roberts was scheduling a meeting on

February 13 with Ms. Williams, Martha Adkins, who was the

Assistant Director of Business Technologies, and Nevis

Herrington, Vice President of Human Resources, for the purpose of

permitting Respondent to tell his side of the story in full.

29. Ms. Williams was the only witness who testified as to

the February 13 meeting, but her recollection was unclear as to

the details of this meeting as distinguished from others

involving Dr. Roberts, Respondent, and her. She recalled

generally that Respondent was made aware of the Policy and

potential penalties for violation thereof.

30. Some delay ensued in the disciplinary process, because

Dr. Roberts and Ms. Williams were waiting for the affidavit from

Ms. Zemola, which was not forthcoming as spring turned into

summer of 1996. At length, Dr. Roberts issued a memorandum to

Respondent, dated August 13, 1996, and titled “Reprimand.”

31. In the memorandum of reprimand, Dr. Roberts found that

the facts to which Respondent had already admitted, characterized

by Dr. Roberts as “a romantic relationship, including sexual

relations, following the time that the student was a student in

your class,” were sufficient to warrant a written admonishment.

32. The memorandum stated that there were certain

mitigating factors that caused Dr. Roberts not to recommend

suspension or dismissal: that the student’s initiating the

contact led to the relationship; that, according to Respondent,

no romantic relationship or sexual relationship occurred while

Ms. Zemola was Respondent’s student; and that Ms. Zemola had thus

far refused or failed to provide her version of the facts in

writing.

33. However, Dr. Roberts’ memorandum went on to state:

On the other hand, if the student had

confirmed in an Affidavit what she originally

advised us took place, I do not believe that

I would have any choice but to consider

recommending dismissal since such conduct

would be a gross and direct violation of the

College’s Sexual Harassment Policy. Such

conduct would not only be in violation of the

College’s Sexual Harassment Rule and

Procedure but it would be unprofessional,

immoral and constitute misconduct in office.

Should confirming or additional information

come forward to support the verbal statements

we were given by the student and her husband,

further consideration of an additional

discipline including up to dismissal will be

necessary . (Emphasis added.)

34. The August 13, 1996, memorandum placed dispositive

emphasis on the timing of the romantic and/or sexual relationship

between Respondent and Ms. Zemola. As of August 13, Dr. Roberts

accepted Respondent’s version of the facts, i.e., that the

romantic and sexual aspects of the relationship occurred after

Ms. Zemola was a student in Respondent’s class. Dr. Roberts

found that this version, while contrary to the spirit of the

Policy, and constituting misconduct in office and immorality,

merited only a written admonishment. Dr. Roberts testified that

“the power relationship is there whether the student is a student

in that individual’s class or not,” somewhat contradicting the

distinction he drew in his memorandum regarding the timing of the

affair and its impact on the proposed discipline.

35. Dr. Roberts testified that the admonishment was based

on his judgment that Respondent’s relationship with the student

violated the Policy “in terms of creating a threatening or

offensive or intimidating environment.” He testified that

Ms. Zemola had clearly complained that she felt intimidated and

reluctant to take classes.

36. Dr. Roberts’ conclusion in this regard was based on

Ms. Zemola’s subjective apprehensions. No evidence was produced,

at any point in these proceedings, that Respondent engaged in any

behavior that could have caused Ms. Zemola to feel “intimidated”

or “reluctant to take classes.”

37. Ms. Zemola testified that she heard students at other

campuses discussing the incident, and that an instructor in one

of her classes talked about the case in front of the class. She

believed that Respondent was the source of these persons’

knowledge of the situation.

38. Ms. Zemola offered nothing more than her suspicions in

this regard, and Respondent resolutely and credibly denied having

discussed the affair with students or fellow instructors.

39. In fact, the weight of the credible evidence leads to

the finding that John Zemola was the likely source of any campus

gossip regarding the incident. On at least one occasion,

Mr. Zemola disrupted a College class by writing accusations

against Respondent on the blackboard.

40. Dr. Roberts’ August 13 reprimand memorandum left open

the possibility that further disciplinary measures might be

taken, should Ms. Zemola come forward with a sworn affidavit

confirming her version of the timing of the romantic and sexual

aspects, i.e., that they occurred while she was a student in

Respondent’s class.

41. In a sworn af fidavit dated October 24, 1996, Ms. Zemola

attested that, while she was a student in Respondent’s classes

during Session II, 1994-95, they had an affair which consisted of

“a great amount of time talking, and some time kissing, hugging,

and holding hands.” She attested that during Session III, 1994-

95, while she was still a student in Respondent’s class,

Respondent told her that “if our affair did not go any further,

then it had to end.” She attested that at this time she was

constantly fighting suicidal thoughts, and believed that if she

lost Respondent, the only person she could talk to, she might no

longer be able to fight those thoughts. Therefore, during

Session III, 1994-95, she engaged in a single sexual encounter

with Respondent.

42. By memorandum dated December 11, 1996, Dr. Roberts

informed Respondent that the affidavit has been filed and offered

Respondent an opportunity to meet with Dr. Roberts and two other

officials “to respond to the allegations and share your side of

the story.” There is no record evidence that this meeting ever

took place.

43. On May 8, 1997, the College filed the Petition. The

essential allegation was framed as follows:

a. The faculty member entertained romantic

and sexual relations with a student while

that student was in the faculty member’s

class. This relationship continued after the

student was no longer in the faculty member’s

class for a period of several months while

the student continued her course of education

at the College. Such conduct therefore

occurred during a time when the faculty

member could influence and affect the

student’s academic advancement.

44. In addition to the allegations regarding Respondent’s

romantic and/or sexual relationship with Ms. Zemola, the Petition

alleged:

b. The faculty member thereafter encouraged

students of his to pressure the woman with

whom he had had the romantic relationship to

refrain from stating charges against him in

order that it not jeopardize the faculty

member’s career.

Petitioner offered no evidence to support this allegation, and it

is thus assumed that it has been dismissed.

45. The remaining factual allegations contained in the

Petition are for the most part conclusions alleged to arise from

Respondent’s conduct:

c. Said conduct seriously undermines the

atmosphere of trust essential to the

student/instructor relationship, and further

is inconsistent with the standards of public

conscience and good morals, and was

sufficiently notorious so as to disgrace the

faculty member’s profession and impair the

faculty member’s service to the community and

to students.

d. The faculty member’s conduct had serious

adverse consequences upon the student, the

student’s relationship with her husband, as

well as adverse impact on other students,

faculty, staff, and upon members of the

community, impairing his effectiveness.

e. The effect of the faculty member’s

aforesaid conduct was the creation of an

intimidating, hostile and/or offensive

educational environment for the student and

others.

46. No evidence was pres ented of any “adverse consequences”

to other students, faculty, staff, or members of the community,

caused by Respondent’s actions.

47. None of the College administrators who testified could

recall receiving any complaints regarding Respondent.

Dr. Roberts recalled an inquiry from the campus newspaper, but

testified that no article ever ran in that or any other newspaper

regarding this situation.

48. Ms. Zemola testified that she heard some gossip around

the campus, though none of it mentioned the parties by name.

Such talk naturally affected Ms. Zemola, but could not be said to

have had any other adverse impact.

49. Ms. Zemola’s relationship with her husband was plainly

affected by this incident. However, testimony from both

Respondent and Ms. Zemola indicated that neither of their

marriages was happy at the outset of their relationship. In

fact, their testimony indicated that mutual unhappiness in their

marriages was one of the main reasons they were drawn together in

the first place.

50. No evidence was presented to demonstrate that

Ms. Zemola’s grades or academic advancement were in any way

compromised by her affair with Respondent.

51. Ms. Zemola received grades of “A” in both classes she

took from Respondent. Both Ms. Zemola and Respondent testified

that these grades were earned by Ms. Zemola based entirely on her

work in those classes.

52. Respondent has continued to work as an instructor at

the College since the affair and subsequent disciplinary

proceedings. His work has been performed competently and

completely without incident.

53. The episodes of disruption and/or diminished

effectiveness cited by the College’s administrators were in fact

caused by John Zemola, not by Respondent. When asked for

evidence that Respondent’s effectiveness as a teacher has been

diminished as a result of the relationship, President Kuttler

related an incident in which John Zemola disrupted a class to

inform the students about Respondent’s situation, and another

incident in which John Zemola harassed Respondent at his home,

telling Respondent’s neighbors about the incident.

54. President Kuttler concluded that Respondent’s

effectiveness was diminished by the fact that it became known on

the campus that there was a teacher/student sexual relationship.

However, all the credible record evidence indicates no one

involved in the incident or the subsequent disciplinary

proceedings other than John Zemola ever publicly disclosed the

relationship. Respondent cannot fairly be blamed for the actions

of Mr. Zemola in publicizing the incident.

55. Several of Respondent’s colleagues testified to attest

to Respondent’s outstanding ability in the classroom. All

opined, based on their experience as instructors at the College

and their knowledge of Respondent’s character and abilities, that

Respondent could continue to perform as an effective instructor

at the College.

56. No evidence was presented to demonstrate that

Respondent’s actions created “an intimidating, hostile and/or

offensive educational environment for the student and others.”

57. Respondent acknowledged the impropriety of his actions,

and the impact they have had on his personal life, but testified

that it has had no impact on his professional life.

CONCLUSIONS OF LAW

58. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

59. Petitioner contends that its Petition is brought

pursuant to Rule 6A-14.011(4), Florida Administrative Code, which

states, in pertinent part:

Any employee who is under continuing contract

may be dismissed or may be returned to annual

contract status for another three (3) years

at the discretion of the board when a

recommendation to that effect is submitted in

writing to the board on or before April 1 of

any college year giving good and sufficient

reasons therefor by the president and

provided the president’s recommendation is

approved by a majority of the board.

60. Petitioner’s contention is incorre ct, for two reasons.

First, the quoted provision requires that the President’s

petition be submitted in writing to the Board “on or before April

1” of the college year. The Petition in this case was filed on

May 8, 1997, seeking Respondent’s dismissal at the conclusion of

the 1996/97 academic year.

61. Second, the Policy itself, under the heading

“Discipline/Procedure,” states in relevant part:

Remedial or disciplinary action will depend

on the nature of the incident, but such

discipline shall range from admonishment to

dismissal.

* * *

Administrative staff and faculty members may

be subject to disciplinary action as provided

in the Rules of the Department of Education,

State Board of Community Colleges Rule 6A-

14.011(6).

62. Rule 6A-14.011(6), Florida Administrative Code, the

rule actually referenced in the College’s Policy, states in

relevant part:

Any employee classified under the provisions

of Rule 6A-14.002(1)(a), (b), FAC., may be

suspended or dismissed by the board upon

recommendation of the president at any time

during the college year, provided that no

such employee may be dismissed during the

college year without opportunity to be heard

at a public hearing after at least fourteen

(14) days notice of the charges against the

employee and of the time and place of

hearing; and provided further that the

charges must be based on immorality,

misconduct in office, incompetency, gross

insubordination, willful neglect of duty,

drunkeness or conviction of any crime

involving moral turpitude . (Emphasis added.)

63. It is concluded, therefore, that Petitioner has the

burden of establishing by a preponderance of the evidence that

the actions of Respondent warrant his dismissal from the College

or lesser discipline for immorality, misconduct in office,

incompetency, gross insubordination, willful neglect of duty,

drunkeness, or conviction of a crime involving moral turpitude.

As a practical matter, the standards for immorality and

misconduct in office are the only applicable bases for decision

under the facts set forth above.

64. Chapter 6A-14, Florida Administrative Code, does not

further define the terms “immorality” or “misconduct in office.”

Those terms are used in Section 231.06(4), Florida Statutes,

which sets forth grounds for discipline of school teachers under

continuing contract, and those terms are further defined in Rule

6B-4.009, Florida Administrative Code, which is the Department of

Education rule implementing Section 231.06(4), Florida Statutes.

The relevant portions of Rule 6B-4.009, Florida Administrative

Code, read as follows:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual’s service in the

community.

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in

Rule 6B-1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

Rule 6B-1.006, FAC., which is so serious as

to impair the individual’s effectiveness in

the school system.

65. The following provisions of the referenced Principles

of Professional Conduct, Rule 6B-1.006, Florida Administrative

Code, may be applicable:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

* * *

(g) Shall not harass or discriminate against

any student on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition, sexual orientation,

or social and family background and shall

make reasonable effort to assure that each

student is protected from harassment or

discrimination.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

66. In Texton v. Hancock , 359 So. 2d 895 (Fla. 1st DCA

1978), the court applied the standards of Section 231.06, Florida

Statutes, to the case of a tenured college instructor accused of

“immorality, misconduct in office, and willful neglect of duty.”

It is thus concluded that the standards found in Section 231.06,

Florida Statutes, and Rule 6B-4.009, Florida Administrative Code,

are properly applicable to this case, with the following caveat

set forth by the Texton court:

Obviously acts performed by a tenured school

teacher in a given situation may justify

discharge, whereas in another situation they

may not. Ms. Texton’s conduct must be judged

in the context of her more liberal, open,

robust college surroundings. She is not

teaching children of tender years in an

elementary school . Her acts have little or

no connection whatsoever with morality,

misconduct in office or willful neglect

particularly when considering that the

complainants were junior college students,

many of them older and working full-time,

attending classes part-time or at night.

Texton , 359 So. 2d at 897 (emphasis added).

67. The Petition alleges that Respondent’s conduct violated

one or more of the following:

a. The terms of paragraph 7 of his contract

[“This contract shall at all times be subject

to any and all laws, Florida State Board of

Education Regulations, and Board policies and

regulations now existing or hereafter

lawfully enacted or promulgated.”];

b. The provisions of Section 228.2001,

Florida Statutes [Discrimination against

students and employees in state system of

public education];

c. The provisions of State Board of

Education Rule 6A-19.002, Florida

Administrative Code [dealing with

discrimination based on race, sex, national

origin, marital status, or handicap in

educational institutions];

d. The provisions of Title IX and applicable

federal regulations; and

e. The provisions of the Policy, as

described above.

68. In its proof at hearing and in its proposed recommended

order, Petitioner focused its efforts on demonstrating that

Respondent violated the Policy, and thus could be dismissed

pursuant to paragraph 7 of his contract. No proof was offered

nor argument made that Respondent violated the various state and

federal statutes and rules regarding discrimination that were

cited in the Petition, and thus no conclusions are reached as to

violations of those provisions.

69. Under the College’s Policy, “ sexual harassment” is

defined as:

An employee’s or a student’s unwelcome sexual

advances, requests for sexual favors, and

other verbal or physical conduct of a sexual

nature, sexually related jokes, display of

pornographic material in the workplace or an

academic or student setting... when

1. submission to such conduct is made

explicitly or implicitly a term or condition

of an individual’s employment or an

individual’s treatment as a student;

2. submission or rejection of such conduct

by an individual is used as the basis for

employment decisions or the treatment of a

student affecting that individual; or

3. such conduct has the purpose or effect of

unreasonably interfering with an individual’s

work or a student’s academic performance or

creating a sexually intimidating, hostile or

offensive working or academic environment.

70. The definition is thus two-pronged: there must be an

unwelcome sexual advance or other offensive behavior of a sexual

nature; and there must be either an element of coercion,

interference, or the creation of a sexually intimidating, hostile

or offensive environment.

71. Applying the definition to this case, Respondent’s

behavior did not meet either prong. The romantic and sexual

behavior that occurred was not unwelcome, and there was no

element of coercion, no interference with the student’s academic

performance, and no creation of a sexually intimidating, hostile

or offensive environment. Had the Petitioner been required to

demonstrate that Respondent was in violation of the definition of

“sexual harassment” set forth in its Policy, Petitioner would

have failed to carry the burden of proof.

72. However, the Policy goes on to state that the term

“sexual harassment” has a “broader impact” in the instructor-

student context:

The fundamental element of such behavior is

the inappropriate personal attention,

including romantic and sexual relationships

with a student by an instructor or staff

member who is in a position to determine a

student’s grade or otherwise affects the

student’s academic advancement. Because the

instructor-student relationship is one of

professional and client, the above

inappropriate behavior is unacceptable in a

college; it is a form of unprofessional

behavior which seriously undermines the

atmosphere of trust essential to the academic

setting. (Emphasis added)

73. Thus, neither of the essential elements found in the

definition of “sexual harassment” applies when the term is

applied in the instructor-student context. Sexual advances or

other conduct of a sexual nature need not be unwelcome ; any

romantic or sexual relationship is presumed to be inappropriate.

Also, there need not be any element of coercion, because the

College has determined that the i nstructor-student relationship

is so fraught with the potential for such coercion that a

prophylactic rule is appropriate.

74. It is unquestioned that Respondent violated the blanket

prohibition on romantic and sexual relations with students set

forth in the Policy. Respondent was an instructor, and was in a

position to determine the student’s grade or to otherwise affect

the student’s academic advancement.

75. Petitioner has demonstrated, by a preponderance of the

evidence, that Respondent violated the “Instructor-Student

Relationships” portion of the Policy. Such violation does not

constitute “immorality” in the context of the “liberal, open,

robust college surroundings” in which it occurred. However, it

is concluded that such a direct, knowing violation of an express

College policy does constitute “misconduct in office.”

76. In particular, it is concluded that Respondent violated

the Principles of Professional Conduct requiring that an

individual “shall not intentionally expose a student to

unnecessary embarrassment or disparagement” and “shall not

exploit a relationship with a student for personal gain or

advantage.” While the undersigned found as fact that most of the

“embarrassment” to Ms. Zemola was caused by her husband’s

publicizing of the affair, it cannot be overlooked that

Respondent’s behavior was the ultimate cause of Mr. Zemola’s

actions.

77. The undersigned concludes, however, that dismissal of

Respondent is not the proper discipline, taking into account the

nature of the violation, the mitigating factors involved, the

lack of any demonstrated adverse impact on the student in

particular or the College generally, and Respondent’s otherwise

spotless record as an instructor at the College for a period of

15 years.

78. The undersigned questions the fairness of associating

the stigma of “sexual harassment” with the actions taken by

Respondent in this case. The College’s authority to prohibit

romantic liaisons between faculty and students has not been

questioned in this proceeding, but such a prohibition is properly

the subject of a separate rule. “Sexual harassment,” both in

common usage and as expressly defined in the Policy, carries a

connotation of unwelcome, overbearing and/or crude sexual

behavior that was simply not present in this case.

79. The nature of this violation was not “sexual

harassment” as stated in the College’s own definition.

Respondent’s actions were not unwelcome. Respondent did not

condition the student’s grade or academic advancement on her

submission to his overtures. Respondent did nothing to interfere

with the student’s academic performance. Respondent did nothing

to create a sexually intimidating, hostile, or offensive academic

environment for the student. Respondent’s sole violation was to

transgress the blanket, prophylactic prohibition on all romantic

relationships with students.

80. Seen in this light, the disciplinary actions of the

College against Respondent were irrational. Dr. Roberts’

memoranda and testimony indicated that, had the affair taken

place after Ms. Zemola was a student in Respondent’s class, the

only punishment would have been a written admonishment. However,

because the affair occurred while Ms. Zemola was taking

Respondent’s class, the proper punishment was deemed to be

dismissal.

81. Dr. Roberts’ distinction would have been rational had

there been any indication that Respondent committed “sexual

harassment” as defined in the Policy, i.e., Respondent was

conditioning Ms. Zemola’s grade in his class on her compliance

with his romantic advances. However, there was no evidence that

this was the case. Both Ms. Zemola and Respondent testified that

her grades in Respondent’s classes were in no way contingent on

the outcome of their personal relationship.

82. Dr. Roberts’ distinction was irrational because the

only violation proven against Respondent was of the blanket

prohibition on romantic relationships. The penalty should have

been the same regardless of the timing of the relationship, given

the complete lack of evidence that Respondent actually used his

position to improperly influence the student’s grade or affect

her academic advancement. As Dr. Roberts himself testified, the

Policy’s concern is with abuse of the power relationship between

instructor and student, and that power relationship is present

whether or not the student is in that instructor’s class. It is

concluded that written admonishment or suspension would have been

the proper penalty in either case, given the circumstances of the

case and Respondent’s otherwise exemplary record at the College.

83. Respondent’s violation should in no way be minimized.

The College’s Policy serves a salutary purpose. However, the

Policy also calls for a range of penalties to be administered

depending on the nature of the incident. The nature of this case

simply does not warrant imposition of the severest penalty

available. Rule 6A-14.0411(6), Florida Administrative Code,

permits suspension of an instructor for cause, and it is

concluded that a suspension would be a just and sufficient

penalty for the violation proven in this case.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is recommended that the Board enter a final order finding that

Respondent violated the “Instructor-Student Relationships”

portion of the College’s Sexual Harassment Policy, and suspending

Respondent from his position at the College for a period not to

exceed one Session.

DONE AND ENTERED this 24th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 1998.

COPIES FURNISHED:

Maria N. Sorolis, Esquire

Shannon Bream, Esquire

Allen, Norton and Blue

Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue

Tampa, Florida 33606

Mark Herdman, Esquire

Herdman and Sakellarides

2595 Tampa Road, Suite J

Tampa, Florida 34684

C harles L. Roberts, Provost

St. Petersburg Junior College

St. Petersburg/Gibbs Campus

Office of the Provost

St. Petersburg, Florida 33733

District Board of Trustees

St. Petersburg Junior College

Post Office Box 13489

St. Petersburg, Florida 33733

Carl M. Kuttler, Jr., President

St. Petersburg Junior College

Post Office Box 13489

St. Petersburg, Florida 33733

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.