STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG COLLEGE,

Petitioner,

vs.

GARY J. RODRIGUEZ,

Respondent.

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) Case No. 05-0343

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on March 29 through 31 and April 11, 2005, in

St. Petersburg, Florida, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark E. Levitt, Esquire

Sharonda P. Mills, Esquire Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606

For Respondent: Craig L. Berman, Esquire

Berman Law Firm, P.A.

111 Second Avenue Northeast, Suite 810 St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether Petitioner, St. Petersburg College, should dismiss Respondent from his employment and terminate his continuing contract.

PRELIMINARY STATEMENT

By a Petition for Dismissal and Notice of Public Hearing Rights (the "Petition") filed with the Board of Trustees of St. Petersburg College (the "Board") on January 12, 2005, pursuant to Florida Administrative Code Rule 6A-14.0411(4),1

Petitioner petitioned the Board for the dismissal of Respondent from all employment at St. Petersburg College (the "College"). The Petition alleged that Respondent violated Florida Administrative Code Rule 6A-14.0411, adopted by the Board as Rule 6Hx23-1.021, by committing the following acts:

1. Aiding and abetting student(s) under the age of 21 in the unlawful drinking of alcoholic beverages and contrary to intent of Florida Statutes section 562.11;

   
   

2. Committing an assault and battery upon a female student, resulting in hospital emergency room medical treatment;

   
   

3. Respondent improperly used his position and abused his power to encourage and induce female students to come to his house or to his secondary place of work at a "nightclub" in an attempt to establish a personal relationship, by giving female students inappropriate attention, which Respondent knew could lead to romantic and/or sexual relationships.

4. Respondent caused a female student with whom he had a romantic and/or sexual relationship (apparently to hide such relationship) to stop her academic progress by inducing her not to continue her schooling at this College, adversely affecting the student's academic progress for the Respondent's sole benefit.

   
   

5. Having a sexual and/or romantic relationship with a female student during a time when the student(s) was enrolled in the Respondent's class or when the Respondent was in a position to determine the student's grade or otherwise affect the student's academic progress or environment;

   
   

6. The foregoing misconduct was in part undertaken while Respondent was married; and

   
   

7. Respondent is believed to have made untruthful or deceitful statements to College representatives regarding the foregoing matters.

The Petition further alleged as follows:

In addition to the foregoing or in the alternative, Respondent has violated Board of Trustees' Rule 6Hx23-2.011, Sexual Harassment Policy. . . . The Respondent's conduct in violating this Rule includes unprofessional conduct which is prohibited by said Rule. Respondent's misconduct includes inappropriate personal attention, romantic and/or sexual relations with a student or students during a time in which the Respondent was in a position to determine the student's grade or otherwise affect the student's academic progress or environment.

By an Answer to Petition for Dismissal filed on January 20, 2005, Respondent denied violating any Board rules or engaging in any conduct that could be considered misconduct under the

Board's rules. Respondent "categorically denie[d]" engaging in the conduct alleged in the above paragraphs a through g.

Respondent requested dismissal of the Petition. By letter dated January 24, 2005, Petitioner forwarded the Petition to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a final administrative hearing.

Prior to the scheduled hearing, Respondent filed a motion seeking to dismiss all allegations regarding Respondent's romantic or sexual relationships prior to December 9, 2003.

Respondent also filed a motion for partial dismissal and/or in limine to exclude evidence regarding private consensual relationships, on the ground that such inquiry violated Respondent's privacy rights under Article I, Section 19 of the Florida Constitution and the First and Fourteenth Amendments to the United States Constitution. Petitioner filed a motion to compel that sought to force Respondent to produce all e-mails on his home computer that related to students, as well as Respondent's bank and phone records and credit card statements. Finally, the St. Petersburg Times filed a motion to quash a subpoena issued to one of its reporters by Respondent, who apparently wished to call the reporter to verify a quote by a College employee in an article published by the newspaper, in

the event that the employee denied making the statement in question.

At the outset of the final hearing, lengthy oral argument was heard on all pending motions. The St. Petersburg Times' motion to quash was granted. All other motions were denied. As to the denial of Petitioner's motion to compel, the undersigned made it clear that, although he would not compel Respondent to produce the items requested, he would draw inferences from Respondent's refusal voluntarily to produce these materials.

At the final hearing, Petitioner presented the testimony of Dr. Stan Vittetoe, provost of the College's Clearwater campus; Maria Albornoz-Madariaga, Margaret Gunn, Teona Gogoladze, Rian Salmun, and Pamela Socorro, all students at the College during the period in question; Dr. Barbara Lee, dean of the School of Management and Labor Relations at Rutgers University and an expert in sexual harassment in the academic field and student/teacher relationships; Anne Cooper, program director of the fine arts and social sciences department of the College's Clearwater campus; and Carl M. Kuttler, Jr., President of St.

Petersburg College. Ms. Socorro and Dr. Kuttler were also called as rebuttal witnesses. Dr. Flora Greenberg,

Ms. Socorro's psychologist, testified as a rebuttal witness. Petitioner's Exhibits 1 through 27, and 29 through 31 were admitted into evidence. (Exhibit 4 was split into 4a and 4b.

Both parts were admitted.) Respondent testified in his own behalf, and also presented the testimony of Norma Rodriguez, his mother; Christine Rodriguez Lindsley, his sister; Amelia Carey, director of institutional advancement at the College; Doyle Mills, ex-stepfather of Pamela Socorro; Jeffrey Davis, associate provost of the College's Clearwater campus; Christian and Guillermo Garcia, brothers who were students at the College during the period in question; and Megan and James McGee, friends of Respondent. Respondent's Exhibits 5 through 8 were admitted into evidence.

A four-volume Transcript of the final hearing was filed at the Division of Administrative Hearings on April 28, 2005. Two requests for extensions of time to file proposed recommended orders were granted, by Orders dated May 10 and May 23, 2005.

The parties filed Proposed Recommended Orders on May 27, 2005.

On May 31, 2005, Petitioner filed a motion to strike two paragraphs of Respondent's proposed recommended order that asserted facts outside the record of this proceeding, i.e., that Ms. Socorro married a man named Harold Daniel Marin in October 2004, at the same time she was engaged in a romantic relationship with Respondent. On June 1, 2005, Respondent filed a belated request to take judicial notice of Ms. Socorro's marriage records. While this marriage might have had some bearing on the undersigned's assessment of Ms. Socorro's

character, it is at most tangential to the central issues of this hearing. More important to this ruling, Respondent offered no reason why this evidence could not have been discovered prior to the final hearing. The prejudicial effect on Petitioner, which had no opportunity to rebut the evidence or the inferences to be drawn therefrom, outweighs any probative value of the evidence. Petitioner's motion to strike paragraph 13 and the third bullet point of paragraph 24 of Respondent's proposed recommended order is GRANTED.

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 humanities at the College's Clearwater campus.

2. Respondent has been an instructor at the College since 1996. He began as an adjunct professor and has been a full-time instructor since 1998. Respondent works under a continuing contract of employment, which 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. Prior to the incidents giving rise to this proceeding, Respondent had never been subject to disciplinary proceedings during his employment with the College. At Respondent's

   July 2004 annual evaluation meeting, Provost Stan Vittetoe and Program Director Anne Cooper expressed concerns about Respondent's failure to keep office hours and the fact that he did not show up for a class he was scheduled to teach.

   Respondent attributed these problems to his ongoing divorce proceedings. Dr. Vittetoe lectured Respondent on the importance of not allowing "life issues" to affect his work, but did not otherwise discipline Respondent.

4. In the fall semester of 2003, Respondent taught three humanities courses: Humanities I, Humanities II, and East/West Synthesis. Humanities I and II consist of a chronological study of Western civilization. East/West Synthesis focuses on non- Western cultures, such as those of India, China, Japan, Africa, and the Middle East.

5. Pamela Socorro has been a student at the College since 2002. She enrolled in Respondent's East/West Synthesis class in August 2003. The class was scheduled to meet twice a week, on Monday and Wednesday evenings, for the length of the fall semester. Each class period lasted one hour and 45 minutes.

6. Respondent also played keyboards for a local jazz and rhythm and blues band called Bus Stop. Respondent was not a

   regular member of the band, but sat in for the band when its regular keyboardist was unavailable. Bus Stop played at nightclubs and bars in the Tampa Bay area.

7. In his humanities classes, Respondent would announce the dates of his engagements with Bus Stop and invite the students to come out and hear the band. In response to one such general invitation in late October 2003, Ms. Socorro and a group of friends went to a bar called the Rare Olive in Ybor City to see Respondent perform with Bus Stop.

8. The Rare Olive did not admit persons under 21 years of age. Ms. Socorro was 19 years old at the time, and her friends were also under 21. Respondent intervened with management, asking if Ms. Socorro could come into the bar provided she did not drink alcoholic beverages. Ms. Socorro was allowed to come into the bar, though at least one of her friends, Rian Salmun, was not admitted.

9. During a break from playing, Respondent spoke with

   
   

   Ms. Socorro for five-to-ten minutes. This was their first one- to-one conversation. During this conversation, Respondent asked Ms. Socorro her age. She told Respondent that she was 19 years old, and he told her that he was 33 years old.

10. In November 2003, Ms. Socorro and Respondent had a conversation on the College campus during which Respondent mentioned that Bus Stop would be playing at the Rare Olive in

    St. Petersburg on November 21, 2003. Because Respondent was sitting in with the band on short notice, he did not have an opportunity to announce this performance to his humanities classes.

11. On November 21, 2003, Ms. Socorro went to the Rare Olive in St. Petersburg with her mother, her aunt, and a group of friends. Ms. Socorro used a friend's identification card to obtain admittance to the bar. Respondent joined Ms. Socorro and her party during a break. Respondent asked Ms. Socorro if she wanted a drink, and she told him that she liked "fruity drinks" and shots. Respondent walked to the bar and came back with two shots. They downed the shots together.2

12. After about an hour at the Rare Olive, Ms. Socorro's mother wanted to leave. Respondent did not want Ms. Socorro to leave and asked what she would be doing later, after she took her mother home. Respondent gave Ms. Socorro his cellular telephone number, and she said she would call him later. She entered the number into her mother's cellular telephone directory.

13. Ms. Socorro and her group left the bar. Once outside, Ms. Socorro realized that she had neglected to save Respondent's phone number into her mother's cell phone directory. Maria Albornoz, one of Ms. Socorro's friends, went back into the bar

    and obtained Respondent's cell phone number again for Ms. Socorro.

14. Ms. Socorro did not call Respondent later on the night of November 21, 2003. She did call him on the afternoon of November 22, 2003, and left a message on his cellular telephone. Respondent returned the call that evening. From this point forward, Respondent's and Ms. Socorro's versions of that evening's events differ in several particulars.

15. According to Ms. Socorro, Respondent asked her if she would like to attend the Fall Dance Concert at the College with him that evening. Respondent testified that he had mentioned the concert in class that week, and asked Ms. Socorro whether she was planning to attend, but did not ask her to go with him.

16. Ms. Socorro testified that they arranged on the telephone to meet outside the theater, met as planned, went in together, and sat together in the back row of the theater. Respondent testified that they happened to arrive at the same time and that they sat together in the back of the theater because the recital had already started when they entered.

17. Ms. Socorro testified that, after the recital, she and Respondent arranged to meet at the Marble Slab, a local ice cream shop. Respondent testified that he mentioned that he was going for ice cream but that he did not ask Ms. Socorro to join him. Before proceeding to the ice cream shop, Respondent spoke

    to several performers of his acquaintance, while Ms. Socorro went across the street from the College to the residence of her friend, Mr. Salmun, and spoke with him for a few minutes. At the hearing, Mr. Salmun testified that Ms. Socorro told him she was meeting Respondent for ice cream at the Marble Slab.

18. Ms. Socorro recalled walking past Respondent's car in the Marble Slab's parking lot and seeing two child car seats in the back. At the time, she was unaware that Respondent was involved in divorce proceedings or that he was the father of twin three-year-old daughters. Respondent was already seated at a table in the Marble Slab when Ms. Socorro entered.

19. Neither Respondent nor Ms. Socorro ordered ice cream.

    
    

    They sat at the table and talked about their families, their astrological signs, Pilates and dance teachers they had in common, yoga, and Latin dance. They eventually felt self- conscious about sitting at the table in the ice cream shop without making a purchase, and they continued their conversation outside the Marble Slab.

20. Ms. Socorro testified that Respondent told her that she was a good student and was doing very well in his class. He asked Ms. Socorro not to "announce" that she had seen him play at the Rare Olive or had gone with him to the dance recital, "because he could get in trouble." He told her that he should not see her again while she was in his class, but he did not

    tell her that he was forbidden to see her. Respondent urged Ms. Socorro to complete her class assignments and exams as quickly as possible, the implication being that they could begin dating once she had completed the class and received a final grade. Despite his cautionary statements, Respondent also discussed going out to a Latin club with Ms. Socorro so that she could help him with his dance technique.

21. Respondent testified that he was surprised to see

    
    

    Ms. Socorro arrive at the Marble Slab, especially given that she did not order ice cream. He stated that this was the first clear signal that Ms. Socorro might have a romantic interest in him. Respondent recalled that Ms. Socorro asked him to go out with her to a dance club, but that he told her that was "out of bounds." However, he also told Ms. Socorro that he was interested in pursuing a relationship once she was out of his class.

22. To the extent that Respondent's and Ms. Socorro's versions of events on November 22, 2003, differ, Ms. Socorro's version is credited. Even in his own version of events, Respondent agreed that he returned Ms. Socorro's telephone call. He denied asking Ms. Socorro to go with him to the dance recital. However, Respondent admitted telling Ms. Socorro that he was going to the recital and asking Ms. Socorro if she was going. Similarly, Respondent denied asking Ms. Socorro to go

    with him to the Marble Slab, but there could be little other reason for him to tell her that he was going there. Finally, Respondent admits that he made it clear to Ms. Socorro that he was very much interested in pursuing a relationship with her, as soon as the formality of having her as a student in his class could be dispensed with.

23. On the evening of November 29, 2003, Ms. Socorro attended a performance of the play "Miss Saigon" at Ruth Eckerd Hall in Clearwater. When she came home after the play, she learned that Respondent had telephoned her. She returned the call the next day, while shopping in Orlando with her mother. Ms. Socorro talked to Respondent about "Miss Saigon," because the play was related to the East/West Synthesis course Respondent was teaching. They discussed the Thanksgiving break, then made plans to see the movie "Gothika" that evening at the AMC Woodlands 20 theater complex in Oldsmar.

24. Respondent and Ms. Socorro attended a late showing of "Gothika," then sat and talked in the theater's parking lot until approximately 5:30 a.m. Respondent testified that this was his first "real talk" with Ms. Socorro and that they began to get to know each other at this time. They also shared their first kiss, described by both principals as a "French kiss."

25. Ms. Socorro was scheduled to report to her job as a nanny at 5:45 a.m. on December 1, 2003. She went straight to

    work from the movie theater parking lot, but arrived late to her job. Because she was unable to change clothes before work, she ended up reporting to Respondent's class that evening wearing the same clothes she had worn on their date the night before.

    When she arrived at class, Ms. Socorro noted that Respondent was also wearing the same clothes he had worn the previous evening.

26. While Respondent agreed that he went with Ms. Socorro to see the movie "Gothika," and accepted her version of what happened that night after the movie, Respondent contended that this date occurred on December 9, 2003, the day after he gave out the final grades for Ms. Socorro's East/West Synthesis class. Respondent contended that he did not speak with or see Ms. Socorro on November 30, 2003. He denied any recollection of seeing Ms. Socorro in his class wearing the same clothes she had worn on their date.

27. Ms. Socorro testified that she did go to the movies again with Respondent on December 10, 2003, but that they saw "The Last Samurai." Respondent denied ever having seen "The Last Samurai." Ms. Socorro's version of the chronology of these events is more credible and is accepted. Ms. Socorro's recollection of the events of November 30, 2003, was precise in its detail, belying Respondent's contention that she was somehow confused or mistaken as to when they saw "Gothika" together.

28. On December 8, 2003, Ms. Socorro took her last exam in Respondent's class. The exam was a multiple choice "fill in the bubble" test that Respondent machine graded that evening while the students waited. Respondent was able to tell Ms. Socorro that she had made an "A" in his class before she left his classroom on December 8th. However, Respondent did not officially post the grades for his class until December 16, 2003. The semester officially ended on December 19, 2003.

29. Prior to the end of the fall semester, Ms. Socorro told Respondent that her friends Ms. Albornoz and Mr. Salmun knew that she and Respondent were dating. Ms. Socorro testified that Respondent told her that she should tell Ms. Albornoz and Mr. Salmun not to speak to anyone about their relationship.

30. Ms. Socorro and Mr. Salmun were best friends. They saw or spoke to each other every day, and they prepared their schedules for spring semester together before the end of fall semester. Mr. Salmun told Ms. Socorro that he intended to take a class from Respondent, because he needed one more humanities course and Respondent's class fit into his schedule.

    Ms. Socorro explained to Mr. Salmun that she had discussed this matter with Respondent, who had told her that they could not socialize with any friends of Ms. Socorro's who were taking classes from Respondent. Mr. Salmun nonetheless signed up for

    the class, though he dropped it for a humanities class taught by another instructor prior to the close of the fall semester.

31. Ms. Socorro told another friend, Teona Gogoladze, that she should not enroll in Respondent's class for the spring semester, due to Respondent's concerns about his relationship with Ms. Socorro becoming widely known. Ms. Gogoladze registered for Respondent's class anyway, because it fit her schedule better than any other humanities class, and she had done well in a previous class taught by Respondent.

    Ms. Gogoladze told Ms. Socorro that it would not be "the end of the world" if she had to avoid seeing Ms. Socorro with Respondent for one semester. As it happened, Respondent and Ms. Socorro did socialize with Ms. Gogoladze once during the spring semester, attending a party at her house for the airing of the last episode of the television show "Friends."

32. During the Christmas break between fall and spring semesters, Respondent and Ms. Socorro went out to clubs at least twice. On December 19, 2003, they went with a group of College students to an "end of semester" party at Terra, a Latin club in Ybor City. The next weekend, they went to 10 Beach Drive, a piano bar in St. Petersburg. The couple spoke on the telephone on Christmas Day, exchanged Christmas gifts, and spent New Year's Eve together. Respondent introduced Ms. Socorro to his sister and his father.

33. Respondent and Ms. Socorro continued to see each other during the spring semester of 2004. Ms. Socorro had registered for classes, but withdrew from the College for the semester in order to visit her sick father in Venezuela. Ms. Socorro testified that, although Respondent did not press her to withdraw from the College, their relationship improved when she was not in school because Respondent felt less stress about students seeing him on his dates with Ms. Socorro.

34. Ms. Socorro testified that Respondent "constantly" bought her alcoholic beverages during their relationship, though he knew she had not reached the legal drinking age. Ms. Socorro went to the bars at which Respondent was playing with Bus Stop. Respondent would "hang out" with Ms. Socorro during breaks and buy her drinks. At a bar called J.B.'s in Sarasota, Respondent used his credit card to open a tab for a group of people, including Ms. Socorro. At the end of the evening, Respondent was startled at the amount of the bill. Everyone in the group except Ms. Socorro reimbursed Respondent for their drinks.

35. Ms. Socorro did not register for classes at the College for the 2004 summer semester. She cited her relationship with Respondent as her main reason for staying out of school:

    I knew that when I went back to school, I knew it was going to be a little difficult, because when we would go out to anywhere

    around town, restaurants, Gary knew everyone. His students were everywhere. He felt uncomfortable. He always asked if the person knew me. So, I knew it was going to be difficult.

    
    

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    At that point, by the summer, we were a couple and we had been together for months. I knew it was going to be stressful again and I was working at-- I believe I was beginning to work at a bank and the bank, if I was there long enough, was going to pay for school. And I decided that, putting all these things together, that I would not go in the summer, either.

    
    

36. Respondent taught classes during the 2004 summer semester. Margaret Gunn was a student enrolled in one of his classes. Once while Ms. Gunn was in his office, Respondent asked her to come out to a bar to hear his band play. Ms. Gunn declined the offer. Respondent asked her again in September 2004, and Ms. Gunn again declined. Ms. Gunn testified that Respondent's requests made her somewhat uncomfortable, but that she nonetheless maintained a cordial relationship with him.

37. During the annual fall semester orientation in 2004, College president Dr. Carl Kuttler spoke about sexual harassment during a faculty and staff meeting attended by Respondent.

    Dr. Kuttler stressed that relationships between instructors and students were not allowed if the instructor could in any way affect the student's grade, academic progress, or academic environment.

38. Ms. Socorro described Respondent's reaction to Dr. Kuttler's presentation:

    He was upset and that was the first time I heard the name "Dr. Kuttler." I remember him saying that they had emphasized the subject of teacher and student relationships. And it was kind of like, "you see, I told you" kind of thing.

    
    

    He said that now he needed to be very, very careful. He was actually concerned, because me and Rian [Salmun] were having problems in our friendship and he was concerned that now Rian was going to be upset and he might say something to people out of spite.

    
    

    He was just-- he was scared. He was paranoid. He told me about a teacher that was fired. And he said, you know, they don't even know if he did it, they just think he did it and he was fired or he left or something happened and he was just scared.

    
    

39. Ms. Socorro, who was planning to return to the College in fall 2004, offered to take her classes at a different campus, or at Hillsborough Community College in Tampa, to assuage Respondent's fears. Despite the offer, she eventually registered to take classes at the College's Clearwater campus.

40. Ms. Socorro also asked Respondent why their being seen together remained a concern, given that she was no longer his student. Ms. Socorro stated, "And he kept saying that it just looked bad, it just looked bad that I was his student at the school, because people would wonder how we met. It would be too much of a coincidence that we met, where we met or how."

41. Respondent and Ms. Socorro agreed to give a false story to anyone curious about how they met. Ms. Socorro testified:

    He would ask me, please, just tell people that you met me at the bar or we would come up with kind of like a script of what I was going to say to [Respondent's] friends. It was usually I met Gary while he was playing out [with the band]. That's what I told everybody.

    
    

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    I was protecting him from anyone at all finding out. I don't know if-- I don't know. I don't know if he felt bad himself about it and he just didn't want people to know.

    
    

    He said people don’t-- he would say people don't know our relationship, they don't know us, they don't know how we are, and it doesn't look good that you're so young, it doesn't look good that I was your teacher and people perceive things differently, so let's not let them do that.

    
    

42. Throughout their relationship, Respondent stressed to Ms. Socorro that she should not befriend students enrolled in his classes. Respondent testified that he did so not out of fear for his job but because he wanted to keep his professional and personal life as separate as possible. More credibly,

    Ms. Socorro testified that Respondent told her that he was "risking everything" to continue his relationship with Ms. Socorro.

43. During the 2004 fall semester, Ms. Socorro met and befriended Ms. Gunn, who had taken a class from Respondent during the summer semester and was taking a second class from Respondent in the fall. When they discussed their classes and teachers, Ms. Socorro pretended she did not know Respondent. Respondent became concerned that Ms. Socorro was seeing too much of Ms. Gunn, because he was afraid Ms. Gunn might "put things together." Respondent asked Ms. Socorro to stay away from

    Ms. Gunn. Ms. Gunn testified that it took only a few weeks for her to determine that Respondent was the "boyfriend" that

    Ms. Socorro described in their conversations.

    
    

44. Respondent told Ms. Socorro that she should just go to her classes, sit through the lectures, then get in her car and leave the campus. Respondent demanded that Ms. Socorro decide between her relationship with him and the life of a "typical student," because he was "risking too much" to have Ms. Socorro jeopardize it by "hanging out" at school.

45. Ms. Socorro testified that "things got really bad" between Respondent and her during the 2004 fall semester, due to their conflicts concerning Ms. Gunn and the pressure of hiding their relationship. They had "a lot of fights," some so bad that they would decide to "take breaks from each other" for as long as one week. Ms. Socorro recalled three such "breaks"

    before their final breakup in late November and early December 2004.

46. On November 30, 2004, Respondent and Ms. Socorro went to the AMC Woodlands 20 movie complex to see a movie, but never made it past the parking lot because an argument commenced.

    Ms. Gunn had told Ms. Socorro that Respondent had quizzed her regarding her whereabouts on certain evenings, with the idea of ascertaining whether Ms. Socorro had lied to him when she promised to stop seeing Ms. Gunn. Ms. Socorro confronted Respondent about his questioning of Ms. Gunn. Respondent called her a "compulsive liar" and said that he was "torn" about their relationship and needed time to decide what to do. Ms. Socorro described this fight as "sad" and "horrible."

47. Respondent testified that, despite her promise not to see Ms. Gunn during the fall semester, Ms. Socorro had surreptitiously gone over to Ms. Gunn's house on at least one occasion of which he was aware. He agreed that the confrontation over Ms. Gunn occurred on November 30, though he placed it at a Ruby Tuesday's restaurant.3 Respondent assured Ms. Socorro that they would talk things over the next day, but testified that he also made it clear to her that the romantic relationship was over.

48. On December 1, 2004, Ms. Socorro repeatedly phoned Respondent, who did not answer her calls.4 She sent several e-

    mail messages to which Respondent did not respond. Respondent was staying at his father's house because relatives were visiting from out of town. That evening, Ms. Socorro went to Respondent's father's house. Respondent did not want a confrontation with Ms. Socorro because his children were with him. He promised to speak with her the next day.

49. On the morning of December 2, 2004, Ms. Socorro drove over to Respondent's house. She had concluded that her relationship with Respondent was over, and she wanted to retrieve some possessions that she kept at his house. Respondent was not at home, but Ms. Socorro knew that the lock was broken on Respondent's sliding glass back door, and she let herself in the house.5

50. While looking for some of her jewelry on Respondent's bedroom dresser, Ms. Socorro found a letter from and photographs of one of Respondent's former girlfriends, a former College student named Marianna Csongova. She read the letter, and concluded that Respondent was having a relationship with

    Ms. Csongova at the same time he was dating Ms. Socorro.

    
    

51. Ms. Socorro recalled having seen an e-mail exchange between Respondent and Ms. Csongova earlier in 2004. Respondent had explained away this e-mail, but Ms. Socorro now wondered if there were more e-mails between Respondent and Ms. Csongova. She went into Respondent's computer room and checked his e-

    mails. She found "tons and tons" of e-mails from Ms. Csongova, and responses from Respondent.6

52. Ms. Socorro continued searching Respondent's e-mail and found correspondence between Respondent and several other female students at the College. She printed "tons" of the e- mails. Respondent's printer ran out of paper before all of the e-mails printed. Ms. Socorro began forwarding the e-mails to her own e-mail account, but then got worried that Respondent would come home and catch her. She turned off Respondent's computer and left the house, taking a half-inch thick stack of printed e-mails with her.

53. Respondent had spent the night at his father's house.

    
    

    He woke up on the morning of December 2, 2004, and drove to his own house to shower and dress for work. He noticed that the sliding glass door had been opened. He went to check his e-mail and noticed that the printer was out of paper. Respondent surmised that Ms. Socorro had been in his house and on his computer.

54. As he had promised Ms. Socorro the previous evening, Respondent phoned Ms. Socorro and arranged for her to come over to his house early in the afternoon to discuss their relationship. Ms. Socorro had a doctor's appointment that afternoon to which Respondent had planned to accompany her. During their phone conversation, Respondent told Ms. Socorro

    that he would not accompany her to the appointment because he was driving to Orlando to see his brother, who was down from Atlanta on business.

55. Ms. Socorro arrived at Respondent's house at approximately 12:30 p.m. She went in and they sat down to talk. They talked for nearly an hour about Ms. Gunn and the other issues between them. They did not discuss Ms. Socorro's having gone into Respondent's house that morning and printing his e- mails. Ms. Socorro testified that they both "pretended" not to know what she had done.

56. At about 1:15 p.m., Respondent reminded Ms. Socorro of her doctor's appointment at 1:30 p.m. Respondent was also anxious to begin his trip to Orlando. Ms. Socorro again asked Respondent to accompany her to her doctor's appointment, but Respondent again declined. Ms. Socorro told Respondent that she still wanted things to work out. Respondent said that he did not think it would work, but agreed to talk with her again. Respondent walked Ms. Socorro out of his house and to her car.

57. Respondent was the first to reach Ms. Socorro's car.

    
    

    He looked inside. Ms. Socorro then recalled that she had placed the stack of e-mails on the back seat of her car and that they were plainly visible from outside. Respondent asked Ms. Socorro to unlock the car so that he could retrieve a CD that he claimed to have left in her car.

58. Ms. Socorro used her keyless entry device to open the front door. Before Ms. Socorro could get in the car, Respondent reached in and opened the back door. He grabbed the stack of e- mails. Ms. Socorro threw herself onto Respondent's back, and they struggled over the e-mails on the back seat of the car. The papers were falling to the ground outside the car.7

59. Ms. Socorro pressed the "panic" button on her keyless entry device, setting off the car's alarm system. Respondent took the keys from her, stopped the alarm, and threw the keys outside the car. They continued to struggle inside the car, until Respondent managed to get out of the car.

60. Neighbors were beginning to notice the struggle.

    
    

    Respondent told Ms. Socorro to calm down, that they both needed to act normal. They stopped fighting and picked up the e-mails. Respondent asked Ms. Socorro to go back into the house and talk about matters.8 They walked to the front door. Respondent opened the door, slipped part way into the house, then tossed his stack of e-mails into the house, with the apparent attempt to deny entry to Ms. Socorro. She ran inside the house before Respondent could close the door.

61. They began yelling at each other again. Respondent demanded to know what Ms. Socorro intended to do with the e- mails and threatened to kill her if she tried to "do anything to destroy everything I've worked for all of my life."

62. Respondent tried to force Ms. Socorro out of the house. He pushed her against the wall near the front door and hurt her arm. As Ms. Socorro held on to the jamb of the open front door, Respondent hit her in the chest with his head and shoulder, shoving her off the front porch and into a bush below.9

63. Respondent took advantage of Ms. Socorro's fall to lock his front door from the outside. Ms. Socorro became hysterical. She began to laugh, unnerving Respondent, who tried to calm her down. As Ms. Socorro quieted, they discussed the e- mails. Respondent explained that he stayed in touch with

    Ms. Csongova because he needed to keep his options open. She asked him about the e-mails to the other girls. Respondent replied that the College would not care if he "flirted" with a couple of his students. Ms. Socorro asked Respondent why he went to such lengths to keep their relationship a secret, if the College didn't care. According to Ms. Socorro, the exchange proceeded as follows:

    He said, why do you want to do this? You're going to hurt my kids. . . . He said, you have to understand that I'm 34 years old.

    I'm not a child like you. You have your whole life ahead of you and I need to find a role model. I need to find a good woman for my kids to marry. And I knew that you and I were rocky and I had to do this and I was leading more than one life, more than one relationship and if I had to do it, I did it for my kids, that they need a mother. He said, I can't be alone when I'm 44.

    I remember telling him that he was sick. I said that you're just sick. That's sick.

    He said, do you want me to tell you the truth. He said, from the moment you told me that you had an eating disorder, I knew that you and I weren't going to work. And I kept yelling at him, if it was that long ago, why didn't you stop the relationship, because you have known that forever. He said, I thought you would change, but you never did.

    
    

64. Ms. Socorro got into her car and started to drive away. Believing that Ms. Socorro was in no condition to drive, Respondent tried to talk her into waiting while he called her mother or some other person to come over and help her.

    Ms. Socorro declined any assistance from Respondent. She told him that she was hurt and needed to get to the hospital. She drove away.

65. From her car, Ms. Socorro phoned her doctor's office, because she had missed her appointment. The doctor's receptionist was so alarmed that she stayed on the phone with Ms. Socorro until she reached her mother's office.

    Ms. Socorro's mother, Patricia Mills, drove Ms. Socorro to the emergency room of Morton Plant Hospital in Clearwater, where she was treated for scrapes, an injured wrist, and a slightly cracked rib. Due to the injured rib, Ms. Socorro had to take time off from her job as a waitress at Applebee's. She also wore a splint on her wrist for a time.

66. The emergency room staff at Morton Plant Hospital notified the Pinellas County Sheriff's Office, which dispatched deputies to interview Ms. Socorro while she was still at the hospital. The Sheriff's deputies also interviewed Respondent. No arrests were made and no charges were filed in the matter. The Sheriff's Office reported the incident to the College.

67. Ms. Mills phoned the College's security office to inform the College of the altercation between Respondent and Ms. Socorro. The security office passed the complaint to Clearwater campus Provost Dr. Stan Vittetoe. The College's standard procedure is to lock the computer of any instructor who is the subject of a complaint. Dr. Vittetoe locked Respondent's computer.

68. On December 3, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent to inform him that Ms. Socorro had lodged a complaint against him and to provide Respondent with an opportunity to give his side of the story. Respondent told them that during the physical confrontation with Ms. Socorro, he was merely trying to protect himself. He showed them a scratch on his cheek and stated that he had been trying to retrieve some papers that belonged to him. Respondent admitted that he had been involved in a romantic relationship with Ms. Socorro. This initial meeting with Dr. Vittetoe and Dr. Cooper lasted only about 15 minutes, because Respondent had a class to teach.

69. Also on December 3, 2004, Dr. Vittetoe met with

    
    

    Ms. Socorro and her mother. Ms. Socorro told Dr. Vittetoe that she began dating Respondent during the fall semester of 2003, when she was a student in his class. She told Dr. Vittetoe that she and Respondent often discussed the need to hide their relationship, because of its impropriety. She told Dr. Vittetoe that Respondent often bought alcoholic drinks for her when they went out to bars. Ms. Socorro admitted that she had printed e- mails from Respondent's computer and that it was Respondent's seeing those e-mails that triggered their physical altercation. Dr. Vittetoe requested a formal written statement detailing the facts of her relationship with Respondent. Ms. Socorro furnished a written statement to the College on December 8, 2004.

70. On December 7, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent again. At the outset of the meeting,

    Dr. Vittetoe made clear the gravity of the situation, letting Respondent know that his job was in jeopardy. Dr. Vittetoe questioned Respondent about his involvement with female College students other than Ms. Socorro. Respondent admitted that he had been involved with Ms. Csongova.

71. Dr. Cooper, as Respondent's immediate supervisor, expressed concern at what appeared to be a pattern of romantic involvement with students.10 Dr. Cooper noted that Respondent

    was not following college procedures and appeared to view the female student population as potential candidates for relationships. Dr. Cooper recounted the meeting as follows:

    I raised questions with him in regards to his ability to maintain his professional boundaries and expressed great concern over the fact that he didn't seem to recognize that, in his position as an instructor, he had a position of authority and power and could easily use that to influence students' decisions.

    
    

    I remember that he said that, well, they weren't students in my class at the time that he had become involved with them. My concern was that if you say to a young, impressionable individual, well, I don't date students if they're in my class, well, then what you're saying is, well, just get out of my class and then we can have a relationship.

    
    

    And I tried to express that concern over the fact that he was not maintaining his professional boundaries. And then he shared that, well, he didn't want students to dislike him and, you know, he didn't know how to respond when a student came on to him.

    
    

72. Dr. Cooper attempted to explain that the student/teacher relationship should not be a matter of "liking" or "disliking," but a matter of respect based on the teacher's knowledge of his subject matter and ability to foster the student's quest for knowledge in the teacher's field of expertise. Dr. Cooper was extremely concerned that Respondent

    seemed unable to understand or respect basic professional boundaries established between students and teachers.

73. Dr. Cooper was also concerned that Respondent issued invitations to students to come watch his band play in bars that served alcoholic beverages, when most of those students were underage. She did not agree with Respondent's contention that a band playing in an Ybor City bar constituted a "cultural event." She suggested that, if Respondent wanted to share his music with his classes, then he should have the band come to the class and play.

74. During the meeting, Respondent attempted to defend his relationship with Ms. Socorro, first by denying that it commenced prior to the end of the 2003 fall semester, then by pointing out how careful he had been to instruct Ms. Socorro not to discuss their relationship with other students and not to make friends with students on the Clearwater campus.

75. At the conclusion of this meeting, both Dr. Vittetoe and Dr. Cooper concluded that Respondent had breached College rules and could not be trusted with the safety of College students. Dr. Vittetoe gave Respondent the option of resigning before completion of the investigation and a possible recommendation for termination. Respondent declined the offer of resignation.

76. On December 14, 2004, Ms. Socorro met with associate provost Maria Edmonds. Because she was also an Hispanic female, Ms. Edmonds believed that Ms. Socorro might be more comfortable discussing the issues with her than she had been with

    Dr. Vittetoe. After the meeting, Ms. Edmonds drafted a memorandum summarizing her conversation with Ms. Socorro, the substance of which was consistent with the findings of fact above. Ms. Socorro executed a sworn affidavit attesting to the accuracy of Ms. Edmonds' memorandum, which was forwarded to

    Dr. Vittetoe.

    
    

77. Dr. Vittetoe investigated Respondent's relationships with Socorro and other female College students. Associate Provost Jeff Davis interviewed students at the Clearwater campus to determine their knowledge of Respondent's relationships with various female College students.

78. The investigation disclosed that Respondent had been involved with College students other than Ms. Socorro and

    Ms. Csongova. Respondent admitted to a relationship with Harmony Holt, who had been a student in his class during the 1999 fall semester. However, Respondent's romantic relationship with Ms. Holt did not commence until 2002, after she had graduated.

79. Respondent admitted to a relationship with Kimberly Kimball. Ms. Kimball was in Respondent's class twice, first in

    the 2004 spring semester, then in the 2004 summer session. The summer session ended in July 2004, then Respondent dated her for a short time in September 2004, during one of his periodic breakups with Ms. Socorro. Respondent testified that he stopped dating Ms. Kimball because he was not over Ms. Socorro.

80. Respondent admitted to a "friendly, casual" dating relationship with his former student Kelly McGill in 2003. Respondent testified that, although there was a mutual attraction, no sexual relationship occurred with Ms. McGill.

81. On December 13, 2004, Respondent submitted to

    
    

    Dr. Vittetoe his written statement concerning his relationship with Ms. Socorro. This document is a remarkable mixture of rationalization, self-pitying emotional immaturity, and self- centered moral obtuseness.11 Respondent commences with an irrelevant narrative of his divorce proceedings. He next describes his first contacts with Ms. Socorro. Respondent states that there was a "decision to meet and get to know each other on a more personal level." Though he "can't remember exactly how or when it happened," he is absolutely certain that it occurred after the conclusion of the 2003 fall semester.

    Respondent notes that he stopped dating other women after he had sexual intercourse with Ms. Socorro, on "about the 5th date."

82. Respondent writes that he was concerned about the age difference, but that such differences are the norm in

    Ms. Socorro's Latin American culture. Respondent states, "Ultimately I was able to handle it because she seemed mature for her age."

83. Respondent devotes a long passage to a discussion of Ms. Socorro's bulimia, notable for its emphasis on the impact her disease was having on its real victim, Respondent: "She could tell the bulimia was putting a strain on me to know what she was doing to herself everyday and that it was hurting me."

84. Respondent writes that he accompanied Ms. Socorro to a therapist whose name he could not recall. This therapist, whom Ms. Socorro never saw again, apparently introduced the concept of "borderline personality disorder" to Respondent. The therapist also commended Respondent on how well he was dealing with Ms. Socorro. Respondent now realized that the borderline personality disorder was responsible for Ms. Socorro's "pathological lying," the fact that she could not hold a job, and the fact that she spent all her money on "binge foods and/or shopping."

85. Respondent described the impetus for the final breakup as follows:

    The relationship problems came to a head this past month when she continued to socialize in the student population instead of with friends outside the school which was a boundary we set in the relationship and it made it uncomfortable for us to go out. I was too worried someone would see the two of

    us together. Eventually she met someone in a class that was in one of my classes and I asked her not to pursue the friendship until after the class was over so that there would be no possible problems. She continued to pursue a close relationship with the woman and lied about it on at least a couple of occasions. I wanted to look beyond it and even began to question why I asked her to do it and felt guilty that I might be negatively affecting her college experience and knew it needed to end quickly. Once again I was being manipulated and didn't realize it. I also was having difficulty because although this would only be an issue until she graduated in May of '05, I still felt it was something she knew was important to me but she didn't see it and just ignored it and lied to me about it. I couldn't see being in a relationship where a set boundary was ignored.

    
    

86. Respondent concludes by alleging that Ms. Socorro "is retaliating against me for ending our eleven month long relationship and this retaliation is a form of sexual harassment." From the beginning to the end of the relationship, Respondent claims he was victimized, manipulated, and finally smeared by Ms. Socorro. Respondent claimed his only failing was being too nice for his own good.

87. On December 16, 2004, Dr. Vittetoe issued a memorandum to Dr. Kuttler, the College president, stating as follows, in relevant part:

    The evidence, which we have received to date, causes us to have great and immediate concerns for our female students' safety and freedom from sexual harassment and inappropriate relationships. We have

    evidence that he has been assisting under age students with unlawful drinking, which is a serious violation of the law. With the evidence presented thus far, I have no choice but to recommend his suspension, effective immediately. Because of the above matters, I further recommend he not be allowed to come on campus or have any contact or conversations with students. Any retaliation by Mr. Rodriguez should be a separate cause for disciplinary action. I further recommend his dismissal be presented to the Board of Trustees.

    
    

88. On December 17, 2004, Dr. Kuttler issued a memorandum adopting Dr. Vittetoe's recommendations. Respondent was suspended with pay, effective immediately. Dr. Kuttler anticipated that he would petition the College's Board of Trustees for the suspension without pay and dismissal of Respondent at the Board's next meeting, on January 18, 2005.

89. Dr. Kuttler filed the Petition for Dismissal on January 12, 2005. By Order dated January 18, 2005, the Board of Trustees voted to suspend Respondent without pay and to forward the matter to the Division of Administrative Hearings, should Respondent request a hearing. Through counsel, Respondent filed an Answer on January 20, 2005, asserting his right to a hearing. As noted above, the matter was forwarded to the Division of Administrative Hearings on January 24, 2005.

90. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did aid and abet at least one student under the age

    of 21, Ms. Socorro, in the unlawful drinking of alcoholic beverages.

91. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did improperly use his position and abuse his power to encourage and induce female students to come to a nightclub in an attempt to establish a personal relationship, by giving female students inappropriate attention, which Respondent knew could lead to romantic and/or sexual relationships. The evidence established that Respondent would make blanket invitations to his entire class, male and female. However, Respondent would also select individual females, such as

    Ms. Socorro and Ms. Gunn, for personal invitations. The evidence established that Respondent knew, or should have known, that he was using his position as an instructor to manipulate impressionable young female students into attending his performances, whereby he hoped to impress them sufficiently to make them susceptible to his romantic overtures. As Dr. Cooper said to Respondent at one of their meetings, "[I]t seems like what's more important is for you to organize a set of groupies to follow your band," than to maintain the proper professional relationship with students.

92. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that

    Respondent did cause a female student, Ms. Socorro, with whom he had a romantic and sexual relationship, to stop her academic progress by inducing her not to continue her schooling at this College, adversely affecting the student's academic progress for Respondent's sole benefit. The evidence did not establish that Respondent made a direct demand that Ms. Socorro quit school.

    By her own testimony, Ms. Socorro did not attend classes during the 2004 spring semester because she wanted to visit her father in Venezuela. However, she also testified that her relationship with Respondent was much improved when she was not in school, because Respondent felt less pressure about students seeing him on dates with her. Ms. Socorro also testified that her relationship with Respondent was her main reason for not enrolling during the 2004 summer session. Respondent testified that he encouraged Ms. Socorro to complete her education, but only on his terms: that she stay on the campus only long enough to attend classes and that she socialize with none of her classmates. The unreasonable pressure placed on her by Respondent was unquestionably the cause of Ms. Socorro's decision not to attend classes for at least one semester during their relationship.

93. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did have a sexual and/or romantic relationship with a

    female student, Ms. Socorro, during a time when the student was enrolled in Respondent's class or when Respondent was in a position to determine the student's grade or otherwise affect the student's academic progress or environment. The weight of the evidence leads to the finding that the romantic relationship between Ms. Socorro and Respondent commenced prior to the end of the 2003 fall semester, when Ms. Socorro was a student in Respondent's class. By the time the semester ended, Respondent and Ms. Socorro had attended a dance recital and a movie together. Their romantic relationship was well underway while Ms. Socorro was still a student in Respondent's class.

94. Even if Respondent's testimony were fully credited, the couple went on their first "date" (not counting the dance recital and the Rare Olive meeting) on the night after

    Ms. Socorro took her final exam in his class. This fact, coupled with Respondent's admission that on November 22, 2003, the night of the dance recital, he told Ms. Socorro that he was very interested in pursuing a relationship with her, indicates that the romantic relationship between Respondent and

    Ms. Socorro did not blossom suddenly after she completed Respondent's class.

95. Respondent's rationalization appears to be that it was perfectly acceptable for him to use his classes as a dating service, planning romantic relationships with his female

    students while they were in his class, so long as the actual dating did not begin until the semester ended. The College naturally and reasonably disagreed with Respondent's reading of the applicable rule, discussed in the conclusions of law below.

96. Based upon the findings of fact set forth above, the College has not demonstrated by a preponderance of the evidence that Respondent committed an assault and battery upon

    Ms. Socorro. While their testimony about the events of December 2, 2004, differed in many particulars, both Ms. Socorro and Respondent agreed that she initiated the physical confrontation by jumping on Respondent's back as he attempted to get the e-mails out of the back seat of her car. It could be reasonably contended that matters then cooled off and that the second physical altercation at the front door of the house was initiated by Respondent and did constitute assault and battery. In any event, the facts of the situation were ambiguous enough that the Pinellas County Sheriff's Office did not charge either party after completing its investigation. Though Respondent's conduct during the events of December 2, 2004, was an embarrassment to himself and the College, the specific allegation of assault and battery was not proven by a preponderance of the evidence.

97. Based upon the findings of fact set forth above, the College has not demonstrated that Respondent made untruthful or

    deceitful statements to College representatives during the investigation. At worst, Respondent appeared to suffer convenient lapses during which his memory became "fuzzy" or "foggy" when the thrust of his testimony varied from that of other witnesses. The evidence established that Respondent was deceitful to the various women in his life, but failed to establish that he said anything to College officials that he did not believe was true.

98. The College's allegation that Respondent was married while some of the alleged misconduct occurred was technically proven but should have no bearing on the discipline imposed. Respondent had been separated from his wife for well over a year at the time he met Ms. Socorro and was in the process of finalizing his divorce and custody arrangements. For all the good reasons Respondent had to avoid a romantic relationship with Ms. Socorro, remaining faithful to his wife was not one of them.

    CONCLUSIONS OF LAW

    
    

99. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause, pursuant to Subsection 120.57(1), Florida Statutes (2005).

100. The College purported to bring the Petition pursuant to Florida Administrative Code Rule 6A-14.0411(4), which the College quoted as providing, 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 therefore by the President and provided the President’s recommendation is approved by a majority of the Board.

     
     

101. The College correctly quoted Florida Administrative Code Rule 6A-14.0411(4) as it existed prior to July 20, 2004. However, on May 14, 2004, the State Board of Education published proposed amendments to Florida Administrative Code Rule 6A- 14.0411. See Florida Administrative Weekly, vol. 30, no. 20, pp. 1968-1970 (May 14, 2004). The amendments became effective on July 20, 2004. See Florida Administrative Weekly, vol. 30, no. 29, p. 3005 (July 16, 2004). The amendments deleted the quoted language from subsection (4) and language regarding employee discipline found in subsection (6), replacing both subsections with a new subsection (5)(a) that provides as follows:

     The college may dismiss an employee under continuing contract or return the employee to an annual contract upon recommendation by the president and approval by the board.

     The president shall notify the employee in

     writing of the recommendation, and upon approval by the board, shall afford the employee the right to a hearing in accordance with the policies and procedures of the college. As an alternative to the hearing rights provided by college policies and procedures, the employee may elect to request an administrative hearing in accordance with the guidelines of Chapter 120, Florida Statutes, by filing a petition with the board within twenty-one (21) days of receipt of the recommendation of the president.

     
     

102. The procedures followed by the College and the hearing rights afforded to Respondent complied with the substance of Florida Administrative Code Rule 6A-14.0411(5)(a). Respondent suffered no prejudice due to the College's citation of the former rule as its basis for proceeding against Respondent.

103. The College is required to demonstrate, by a preponderance of the evidence, that good and sufficient reason exists to terminate Respondent's continuing contract with the College. McNeill v. Pinellas County School Board, 678 So. 2d

     476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

104. Rule 6Hx23-2.011 sets forth the College's sexual harassment policy, as follows, in relevant part:

     1. POLICY:

        
        

        Sexual harassment constitutes discrimination on the basis of sex and is a violation of this Rule. The College shall not tolerate

        such conduct. Any employee or student who is found to have violated this Rule shall be disciplined and such discipline shall range from one or more of the following: counseling, attendance at a sexual harassment seminar, written admonishment, suspension or dismissal.

        
        

     2. DEFINITIONS:

        
        

        1. Sexual harassment is defined as:

           
           

           Conduct including but not limited to, 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, and/or 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 the employee or student; 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.

              
              

        2. Except as provided in Paragraph V., the term "staff" shall include faculty/instructors and all other College employees. In Paragraph V. the term "staff" shall include all College employees other

        than faculty/instructors.

        
        

        * * *

        
        

        V. INSTRUCTOR/STAFF-STUDENT RELATIONSHIPS:

        
        

        This Rule applies to instructor/staff- student relationships.

        
        

        1. In the instructor/staff-student context, the term sexual harassment also has a broader impact. The fundamental element of such behavior is the inappropriate personal attention, including romantic and/or sexual relationships with a student by an instructor or staff member who is in a position to determine a student's grade or otherwise affect the student's academic progress or environment. Since the instructor/staff-student relationship is one of professional and client, the above inappropriate behavior is unacceptable in a college because it is a form of unprofessional behavior which seriously undermines the atmosphere of trust essential to the academic setting and is subject to discipline.

           
           

        2. This Rule applies to consensual as well as non-consensual instructor/staff-student romantic and/or sexual relationships, where the instructor or staff member is in a position to determine a student's grade or otherwise affect a student's academic progress or environment. In general, however, this Rule will be strictly enforced, with the severest penalty imposed, in any instance where the involved student is enrolled in the instructor's class at the time of the inappropriate behavior. See

           IX.C. infra.[12]

        3. This Rule is not intended to apply when an instructor is legitimately exercising academic freedom in teaching in the classroom when the subject matter taught or discussed is appropriate to the course being

           taught. Nevertheless, the instructor/staff- student relationship should at all times be professional and any conduct by an instructor or staff member which unnecessarily or unreasonably creates a sexually intimidating, hostile or offensive academic environment in violation of the rights of others is inappropriate and unacceptable and is subject to discipline.

           
           

        4. Students having a consensual romantic and/or sexual relationship with a faculty or staff member who is in a position to determine a student's grade or otherwise affect a student's academic progress or environment may be subject to discipline.

        
        

        * * *

        
        

        IX. DISCIPLINE/PROCEDURE:

        
        

        A. Remedial or disciplinary action will depend on the nature of the incident, but such discipline shall range from one or more of the following: counseling, attendance at a sexual harassment seminar, written admonishment, suspension or dismissal.

        
        

        * * *

        
        

        B.3. All instructors who violate this policy by having consensual or non- consensual romantic and/or sexual relationships with a student presently enrolled in his/her class, will be dismissed, pursuant to the Rule of the Department of Education, State Board of Community Colleges Rules 6A-14.0411(4) and/or 6A-14.0411(6).[13]

105. As noted in the findings of fact above, Respondent's chief defense consisted of attempting to establish that none of his romantic and/or sexual relationships with College students occurred while the students were enrolled in his class. This

     defense constitutes a fundamental misreading of the College's policy. As set forth above, the sexual harassment policy limits the College's disciplinary options for an instructor who has a romantic and/or sexual relationship with a student currently enrolled in his class to a single choice: dismissal. The policy does not exempt instructors who have such relationships with students not enrolled in their classes; rather, it subjects such instructors to the full range of possible discipline, from counseling up to suspension and dismissal.

106. Respondent also attempted to defend himself by arguing that Ms. Socorro suffered no adverse academic consequences due to her relationship with him. This argument ignores the clear fact that, at the very least, Ms. Socorro missed the 2004 summer session at the College entirely due to her relationship with Respondent. However, even if it were granted that Ms. Socorro suffered no actual harm, Respondent's actions still constituted a violation of the sexual harassment policy.

107. As set forth above, the policy states 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/or 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 because it is a form of unprofessional behavior which seriously undermines the atmosphere of trust essential to the academic setting and is subject to discipline. (Emphasis added)

     
     

108. The underscored language indicates that the instructor involved in a romantic and/or sexual relationship with a student need not have taken nor even threatened to take some adverse action against the student. The College has determined that the instructor-student relationship is so fraught with the potential for such abusive behavior that a prophylactic rule is appropriate. Respondent was clearly in a position to determine Ms. Socorro's grade or otherwise affect her academic advancement. The evidence established that Respondent, in fact, did adversely affect Ms. Socorro's academic advancement.

109. Respondent admittedly engaged in five romantic and/or sexual relationships with current or former College students during his employment with the College. Despite his awareness of the College's sexual harassment policy, Respondent did not acknowledge that there were any problems with his dating College students, provided they were not currently enrolled in his class. As to Ms. Socorro, Respondent freely admitted that he

     laid the groundwork for a romantic relationship while she was enrolled in his class.

110. Based on the foregoing findings of fact, the undersigned concludes that dismissal of Respondent is the proper discipline. This conclusion takes into account the nature and number of the violations, their impact on both Ms. Socorro and the College, and Respondent's complete lack of understanding that his behavior was at all problematic. Given Respondent's history and his ability to rationalize and justify his actions, there is no reason to believe that discipline short of dismissal would result in any change in Respondent's behavior. The College would be derelict in its duties if it did not permanently remove Respondent from its campuses.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order dismissing Respondent from any and all employment by the Board and/or the College and canceling his contract status retroactive to January 12, 2005.

DONE AND ENTERED this 8th day of February, 2006, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2006.

ENDNOTES

1/ As noted in the conclusions of law below, the correct citation should have been Florida Administrative Code Rule 6A- 14.0411(5)(a). The College's error in citation did not adversely impact Respondent.

2/ Respondent denied buying an alcoholic drink for Ms. Socorro on this occasion. Both Ms. Socorro and one of her friends, Maria Albornoz, provided similar testimony as to events at the Rare Olive on the evening of November 21, 2003, and their testimony is credited.

3/ In discussing the events of November 30, 2004, Respondent launched into a lengthy digression on Ms. Socorro's bulimia. Respondent's theory, which he attributed to a psychologist whom he met with Ms. Socorro, was that bulimics tend to lie in order to hide their purging behaviors and that this lying carries over into other areas of their lives. Respondent also testified that Ms. Socorro had been diagnosed with borderline personality disorder. Ms. Socorro's current treating psychologist,

Dr. Flora Greenberg, testified that Ms. Socorro does not have borderline personality disorder, that there is nothing in the diagnosis of bulimia that indicates the sufferer tends to be untruthful, and that Ms. Socorro herself had been very

straightforward in her sessions with Dr. Greenberg. In any event, whether Ms. Socorro lied to Respondent about seeing Ms. Gunn is beside the point. The significant issue is that Respondent demanded that Ms. Socorro not have friends at the College, in effect forcing her to lie to him if she wanted to have any semblance of a normal student's life while continuing the relationship with him. No evidence was proffered by Respondent that Ms. Socorro and Ms. Gunn were engaged in anything more sinister than being friends.

4/ During all times relevant to this proceeding, Respondent did not have a land line at his home. He made exclusive use of a cellular telephone.

5/ Ms. Socorro often spent time at Respondent's house when he was not at home. Respondent would ask her to wait for him at his house. She never had a key to his house, but Respondent would leave a door open or tell Ms. Socorro some other way to get into the house.

6/ Many of Respondent's e-mails to and from Ms. Csongova were admitted into evidence and confirmed Ms. Socorro's suspicion that Respondent was maintaining a relationship with Ms. Csongova at the same time he was dating Ms. Socorro. The e-mails are peppered with terms of endearment and expressions of desire that leave no doubt of their intent. Further, though Respondent's e- mails to Ms. Csongova freely share details of his personal life as regards his family, his children, his divorce, and his friends, they do not once mention Ms. Socorro or any other romantic partner of Respondent.

7/ Most of the findings regarding their physical confrontation is based on Ms. Socorro's testimony, which was detailed and credible. Respondent's testimony did not vary significantly from Ms. Socorro's as to those details Respondent could recall. However, Respondent admitted that his recollection of the incident was "fuzzy," "blurry," and "foggy," more impressionistic and episodic than Ms. Socorro's narrative.

8/ Respondent testified that he did not ask Ms. Socorro to come back into his house. Rather, she followed him to the front door and attempted to force her way in.

9/ Respondent admitted forcing Ms. Socorro out of his house. He denied pushing her off the front porch, claiming instead that she simply lost her balance and fell. Ms. Socorro's version is credited.

10/ By this time, Ms. Gunn had come forward to tell College officials about Respondent's twice asking her to come out and see him play with Bus Stop.

11/ The ensuing quotations from Respondent's memorandum are set forth verbatim, without correction of grammar or punctuation.

12/ The Rule contains no section IX.C. Based on the context, the undersigned assumes that the reference is to section IX.B., set forth below, which outlines the range of possible discipline for rule violations.

13/ As noted above, current Florida Administrative Code Rule 6A-14.0411(5)(a) replaced both of the cited provisions as of July 20, 2004.

COPIES FURNISHED:

Craig L. Berman, Esquire Berman Law Firm, P.A.

111 Second Avenue Northeast, Suite 810 St. Petersburg, Florida 33701

Mark E. Levitt, Esquire Sharonda P. Mills, Esquire Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606

Robert B. Shillinger, Jr., Esquire Assistant County Attorney

Post Office Box 1026

Key West, Florida 33041-1026

Carl M. Kuttler, Jr., President St. Petersburg College

Post Office Box 13489

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.

Docket for Case No: 05-000343

Orders for Case No: 05-000343