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 Bream, 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 Petition 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 evidence. 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 received 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 that 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.”

1. 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.

2. No evidence was presented that Respondent ever attempted to contact Ms. Zemola after she ended the relationship.

3. 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.

4. 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.

   
   

5. 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.

      
      

6. 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.

   
   

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.”

13. 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.

    
    

14. 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.

15. 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.)

16. 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.

17. 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.

18. 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.”

19. 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.

20. 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.

    
    

21. 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.

22. 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.

23. In a sworn affidavit 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.

24. 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.

25. On May 8, 1997, the College filed the Petition. The essential allegation was framed as follows:

    1. 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.

26. In addition to the allegations regarding Respondent’s romantic and/or sexual relationship with Ms. Zemola, the Petition alleged:

    1. 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.

27. The remaining factual allegations contained in the Petition are for the most part conclusions alleged to arise from Respondent’s conduct:

    1. 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.

       
       

    2. 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.

       
       

    3. 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.

    
    

28. No evidence was presented of any “adverse consequences” to other students, faculty, staff, or members of the community, caused by Respondent’s actions.

29. 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.

30. 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.

31. 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.

32. No evidence was presented to demonstrate that

    
    

    Ms. Zemola’s grades or academic advancement were in any way compromised by her affair with Respondent.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. No evidence was presented to demonstrate that Respondent’s actions created “an intimidating, hostile and/or offensive educational environment for the student and others.”

39. 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

    
    

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

41. 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.

42. Petitioner’s contention is incorrect, 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.

43. 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).

    
    

44. 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.)

45. 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.

46. 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:

    1. 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.

       
       

    2. 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.

47. The following provisions of the referenced Principles of Professional Conduct, Rule 6B-1.006, Florida Administrative Code, may be applicable:

    1. Obligation to the student requires that the individual:

       
       

       1. 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.

    
    

    * * *

    
    

    1. 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.

       
       

       * * *

       
       

    2. Shall not exploit a relationship with a student for personal gain or advantage.

    
    

48. 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).

    
    

49. The Petition alleges that Respondent’s conduct violated one or more of the following:

    1. 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.”];

       
       

    2. The provisions of Section 228.2001, Florida Statutes [Discrimination against students and employees in state system of public education];

       
       

    3. 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];

       
       

    4. The provisions of Title IX and applicable federal regulations; and

       
       

    5. The provisions of the Policy, as described above.

    
    

50. 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.

51. 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.

       
       

52. 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.

53. 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.

54. 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)

55. 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 instructor-student relationship is so fraught with the potential for such coercion that a prophylactic rule is appropriate.

56. 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.

57. 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.”

58. 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.

59. 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.

    
    

60. 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.

61. 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.

62. 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.

63. 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.

64. 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.

65. 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

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

Charles 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.

Docket for Case No: 97-002474

Orders for Case No: 97-002474