The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1997), to terminate Respondent's employment as a classroom teacher. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner employed Respondent as a member of the instructional staff at Beaumont Middle School, now known as Kissimmee Middle School ("Kissimmee"), pursuant to a written annual contract as required in Section 231.36(1). Respondent first taught at Kissimmee in the 1995-96 school year. Prior to that, Respondent taught school in Virginia. On November 29, 1996, Respondent was in his second year at Kissimmee. However, he had not yet signed his annual contract for the 1996-97 school year. On November 29, 1996, Respondent was arrested in the Florida Mall in Orange County, Florida. He was charged with indecent exposure of sexual organs. The charging affidavit alleges that Respondent masturbated while standing at a urinal in the men's room of a Sears department store in the Florida Mall. The affidavit also alleges that a male at an adjacent urinal also masturbated. Petitioner proceeded with disciplinary action against Respondent in accordance with the procedure prescribed in the contract between Petitioner and the Osceola Classroom Teachers Association. In a letter dated December 3, 1996, from Dr. Thomas McCraley, Superintendent, Osceola County School District, Petitioner suspended Respondent with pay. By letter dated December 16, 1996, Respondent requested an administrative hearing. On December 17, 1996, the Board voted unanimously to suspend Respondent without pay ". . . because the employee is requesting an administrative hearing." The Board referred the matter to DOAH to conduct an administrative hearing. The ultimate issue is whether Petitioner has just cause to terminate Respondent's employment. Just cause is defined in Section 231.36(1) to include misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. In the letter from Dr. McCraley, Petitioner expands the statutory definition of just cause to include immorality and misconduct other than misconduct in office. Dr. McCraley's letter is the only charging document in this case. The charging document is the instrument by which the Board provides Respondent with notice of the charges against him. The charging document states that there is just cause to terminate Respondent's employment based solely on: the alleged sexual acts, including masturbation; and the subsequent arrest. In relevant part, the charging document provides Respondent with notice of the following charges against him: This letter will serve to formally advise you that you are hereby suspended with pay from your position . . . effective immediately. Also, please be advised that I will recommend to the . . . . Board at the December 17, 1996 Board meeting that your contract with the School District be terminated. Please be advised that in the event you timely request a hearing, I will be recommending to the . . . Board that you be suspended without pay until this matter is fully adjudicated. Your recommended termination is based on the following information: On or about November 29, 1996 while you were on or about the Sears restroom in the Florida Mall . . . you were observed and did perform inappropriate and improper sexual acts in the presence of a minor person. These acts include . . . masturbation. You were thereafter arrested by law enforcement for those acts. The above-described acts and subsequent arrest constitute grounds under Section 231.36 . . . for your termination, including . . . misconduct in office, immorality, misconduct, and, if convicted of this offense, conviction of a crime involving moral turpitude. . . . The charging document does not charge that Respondent's teaching ability is impaired. However, Petitioner did disclose in its responses to interrogatories that it intended to present evidence relevant to this additional charge. Petitioner provided Respondent with adequate notice of the additional charge of impaired teaching ability. Evidence relevant to this additional charge did not exist when Petitioner issued the charging document. When Petitioner discovered such evidence, Petitioner properly disclosed the additional charge to Respondent during discovery. This proceeding is not penal in nature. It does not propose disciplinary action against Respondent's license. The original charges in the charging document are based solely on the alleged sexual acts in the men's room. The charges disclosed in the responses to discovery are based on alleged adverse publicity and its effect on the school environment. Petitioner failed to show by a preponderance of the evidence that Respondent committed any sexual acts in the men's room. Without proof of the underlying facts, Petitioner lacks just cause to terminate Respondent's employment on the grounds stated in the charging document. Just cause is statutorily defined to include the conviction of a crime of moral turpitude. Respondent was not convicted in criminal court of a crime involving moral turpitude within the meaning of Section 231.36(1). On August 4, 1997, the judge in the criminal case granted a motion for judgment of acquittal and excused the jury. The charge that Respondent engaged in sexual acts in the men's room is based solely on the observations of Deputy Steven Franklin of the Orange County Sheriff's Office. Deputy Franklin and Deputy Tina Durden were at the Florida Mall on November 29, 1996, to investigate complaints of homosexual acts committed in bathrooms at the mall. Deputy Franklin went into a men's room to urinate. He used a urinal adjacent to the urinal used by Respondent at the same time. Another male was adjacent to Respondent but on the opposite side of Respondent from Deputy Franklin. Deputy Franklin observed Respondent and the other male for less than two seconds. While he was waiting for a urinal, Deputy Franklin also observed Respondent from behind for a few minutes. However, Deputy Franklin could not observe Respondent's hands before he stood beside Respondent at the urinal. The observations by Deputy Franklin for less than two seconds are insufficient to determine whether Respondent was masturbating or voiding Respondent's urinary tract. Respondent has a medical history that makes it difficult for Respondent to determine whether his urinary tract is empty after he urinates. On November 29, 1996, Respondent went to the Florida Mall to obtain a fresh supply of a cleaning solution he used to avoid scratching reflective lenses in eyeglasses that Respondent purchased from Sears Optical in August 1996. The Sears Optical at the Florida Mall was the store location closest to Respondent's residence. However, it was approximately a 45- minute drive from Respondent's house. During the drive, Respondent drank a large bottle of water. He drank the water as part of the treatment for a kidney infection that developed after Respondent passed a kidney stone approximately two days prior to November 29, 1996. Respondent had a long medical history of kidney stones. Since 1972, Respondent had passed numerous kidney stones. After locating a parking place at the Florida Mall, Respondent needed to urinate. He went to the men's room adjacent to Sears Optical. Respondent had to wait for a urinal to become available. November 29, 1996, was the day after Thanksgiving, and the men's room was crowded. Respondent went to the first urinal that became available. He was at the urinal for no more than two minutes. When Respondent first attempted to urinate, he felt some pain in the kidney area. Respondent leaned forward to reduce the pain. He placed his left hand against the wall to avoid touching the urinal. Respondent was not sure he had voided all of the urine from his urinary tract. Respondent has no feeling in his penis due to an automobile accident that occurred in 1988. The automobile accident caused nerve damage. The loss of feeling makes it difficult for Respondent to determine whether or not he has emptied all of the urine from his urinary tract. To be sure all of the urine was eliminated from his urinary tract on November 29, 1996, Respondent shook and stroked his penis several times. Respondent's penis was not erect. Respondent can not have an erection without injection of a specific medication. Respondent has not had an injection since 1991 because the injections are painful and last for only a brief period. Deputy Franklin observed Respondent's hands and penis for less than two seconds and incorrectly concluded that Respondent was masturbating. In fact, Respondent was making sure there was no urine remaining in his urinary tract. While Respondent was at the urinal, he neither spoke to anyone nor touched anyone else. He was not aware of those around him other than a man standing behind him at the electric hand dryer who later identified himself as Deputy Franklin. After Respondent finished urinating, he washed his hands and left the men's room. He was arrested outside the men's room. Deputies Franklin and Durden also arrested the male who had used the urinal next to Respondent. The deputies escorted Respondent to a hearing aid store across from the waiting room of Sears Optical and told him to sit down. The deputies brought the other man to the area where Respondent was sitting. They asked Respondent and the other man if they knew each other. Both men stated that they did not know each other. The deputies searched and hand cuffed both men. The deputies detained both men for approximately 15 minutes. During that time, Respondent asked why he had been arrested but received no answer. The deputies then took both men in handcuffs through the mall to a security office near the hotel in the mall. Respondent remained at the security office for approximately three to four hours. While Respondent was in the security office, the deputies informed Respondent of the charges against him. Respondent repeatedly denied the charges. Respondent was taken to the 33rd Street jail at about 4:00 p.m. He was booked, photographed, finger printed, and placed in a holding cell. He was allowed to make a telephone call at about 5:00 p.m. Respondent telephoned one of his two sons and asked his son to provide bail. Respondent was allowed to leave the jail at about 8:00 p.m. As soon as Respondent reached his son's house, Respondent attempted to report the incident to Principal John Beall. Principal Beall was not available. Respondent telephoned Assistant Principal Karen Turner, who subsequently reported the incident to the principal. The decision to suspend Respondent with pay was made by Petitioner after a meeting on December 3, 1996, between Respondent, his representatives, and representatives for Petitioner. Petitioner did not undertake an independent investigation of the matter but relied solely on the police report, the arrest, statements by Petitioner's director of human resources, and the attorney for the Board. At the meeting, Respondent disclosed his medical condition and offered to provide documentation. He subsequently signed a medical authorization to release those records. At a meeting of the Board on December 17, 1996, Petitioner suspended Respondent without pay. Respondent did not have an opportunity to discuss his case with the Board. The Board relied on the advice of its counsel who in turn relied solely on the criminal arrest and underlying documents. Two local newspapers covered the arrest and suspension of Respondent. The articles were first published after the Board voted to suspend Respondent without pay on December 17, 1996. Respondent's effectiveness as a teacher is not impaired. A copy of a newspaper article was gratuitously distributed at Kissimmee in early January 1997. The publicity has not impaired Respondent's effectiveness with students, faculty, or parents. Approximately a dozen students, out of a student body of approximately 400, referred to the incident in class. The discussions were brief and dissipated after four or five days. Many of the students who discussed the matter in class have moved on to high school and are no longer at Kissimmee. Respondent has a very good rapport with students, even though he is strict and does not play or horse around with them. Teachers have not observed inappropriate behavior between Respondent and his students. Fellow teachers would like for Respondent to return to Kissimmee. Parents have not expressed any concern to Respondent's fellow teachers. One parent did complain to Assistant Principal Turner about Respondent. Respondent is a very competent and very dynamic teacher who exceeds the minimum requirements as a teacher at Kissimmee. He goes to great lengths to help students learn and communicate effectively. He assists parents and fellow teachers. Prior to Respondent's arrest, Respondent received excellent job evaluations. Principal Beall considered Respondent to be an excellent teacher who was creative, effective with students, a good manager of the classroom, and demonstrated independent initiative. Principal Beall chose Respondent to serve as a temporary dean and encouraged Respondent to attend a program designed to qualify Respondent as an assistant principal. Principal Beall and several other witnesses for Petitioner would not hesitate to reinstate Respondent at Kissimmee if the charges against him are not proven. Respondent has obtained an education that significantly exceeds the minimum educational qualifications prescribed in Section 231.17(1)(c) for an elementary or secondary teacher. Respondent earned a bachelor's degree and master's degree in education and geography, respectively, and also earned a PhD. degree in Christian counseling. Respondent has over 20 years of teaching experience in Virginia and Florida. Prior to this case, Respondent has never been disciplined by a school district in which he taught. Respondent has never been arrested prior to this case. Respondent is certified to teach in Virginia. He has met all of the requirements for renewal of his teaching certificate in Florida. He is awaiting the outcome of this proceeding before submitting the necessary paperwork for the renewal of his Florida teaching certificate. At the hearing, Petitioner charged for the first time that Respondent violated school regulations and policies contained in the faculty handbook. Petitioner argued that Respondent violated regulations and policies that prohibit faculty contact with students outside of the school by providing care and instruction to students after school. Respondent objected to the admission of evidence relevant to this charge on several grounds, including the ground that such evidence was not relevant to any charges in the charging document or in the responses to discovery and the ground that allowing such a charge to be made for the first time during the hearing violated essential due process requirements. The undersigned reserved ruling on the objection and heard evidence from both parties. Petitioner did not provide prior notice of the charge that Respondent violated regulations and policies in the faculty handbook. The failure to comply with essential requirements of due process precludes Petitioner from submitting evidence to support such charges. Even if Petitioner had complied with due process requirements, the evidence would not affect the outcome of this proceeding. Petitioner either failed to show by a preponderance of the evidence that Respondent violated relevant regulations and policies in the faculty handbook, or Petitioner condoned the violations committed by Respondent. Respondent had previously been selected by his team of teachers to visit a student named Josh Harweger and Josh's mother in their home to address learning and behavioral problems experienced by Josh. Respondent conferred with Josh's mother at her home, on the telephone, and at school in conjunction with other members of the teaching team. One evening at about 11:00 p.m., Josh's mother came to Respondent's residence without notice and asked Respondent to care for her son overnight while she took care of a family emergency. Respondent agreed to allow Josh to spend the night in his home, which Respondent shared with his son and daughter-in- law and Respondent's other son. The next morning, Respondent informed three members of the Kissimmee staff, including Assistant Principal Turner, of the situation. Josh's mother did not return the next day as promised. In fact, she did not return until approximately five days had passed. Each day, Respondent informed Assistant Principal Turner of the situation. Petitioner condoned each stay. No other student ever spent the night at Respondent's house. Augustine Rivera is the other student for whom Petitioner asserts a violation of regulations and policies in the faculty handbook. Respondent's relationship with Augustine was strictly professional and conducted with the knowledge and consent of Augustine's mother. Augustine has a learning disability and was a student in Respondent's classes for three years. Respondent tutored Augustine after class, even after Augustine's mother was informed of the arrest on November 29, 1996. Augustine's mother drove Augustine to Respondent's house after school for tutoring. Augustine is now in high school. Respondent continues to tutor Augustine once or twice a week after school in Respondent's house with the approval of Augustine's mother. Respondent's tutoring after school has significantly improved Augustine's academic performance and ameliorated Augustine's behavioral problems. Out of gratitude for Respondent's assistance, Augustine has performed various home maintenance tasks for Respondent, including mowing the yard. Respondent and other members of his teaching team created a study jam-session after school for students who wanted academic assistance. The study jam-program had the prior approval of the principal. The study jam-sessions were in addition to Respondent's regular duties and did not relieve Respondent of this regular teaching responsibilities. Approximately eight to ten students went to Respondent's home for a cookout as a reward for exceeding their goals in the study jams. The students came with their parents or had parental permission. Petitioner condoned the cookouts. Respondent obtained the prior approval of the principal for the cookouts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the underlying factual allegations, finding that there is not just cause to terminate Respondent's employment, and reinstating Respondent with back pay from December 17, 1996. DONE AND ENTERED this 20th day of February, 1998, in Tallahassee, Florida. DANIEL MANRY 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 20th day of February, 1998. COPIES FURNISHED: Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza 08 Tallahassee, Florida 32399-0400 Dr. Thomas L. McCraley, Superintendent Osceola County School Board 817 Bill Beck Boulevard Kissimmee, Florida 34744-4495 G. Russell Petersen, Esquire 3339 Cardinal Drive, Suite 200 Vero Beach, Florida 32963 Joseph Egan, Jr., Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Harry William Rinehart, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. This Petition was received by the Division of Administrative Hearings on August 20, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The final hearing in this cause was conducted on September 29, 1981. In the course of the final hearing, the Petitioner did not testify but did offer a witness in his behalf, one Dr. Robert M. Berland, a staff psychologist in the forensic program at the Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted eighteen (18) exhibits. Respondent called as its witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at the Florida State Hospital; Michael Denny, Petitioner's attending clinical psychologist at Florida State Hospital and Michael Pomeroy, another attending clinical psychologist at Florida State Hospital who had worked with the Petitioner. Respondent submitted nine (9) exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with the orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying condition which caused him to be placed in this program has reached its zenith. In the face of this circumstance, the Respondent has made preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. Thus, the Petitioner has requested the formal hearing which is the subject of this Recommended Order. Rinehart was committed to the custody of the Respondent on May 24, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on June 18, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with Rinehart's underlying condition until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated. The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs of recreational and occupational therapy and some individual therapy and relies heavily on a patient's self-motivation. Respondent's Exhibits 1 through 4, admitted into evidence, are clinical summaries of the Petitioner's condition during the course of his treatment. As can be seen in the initial evaluation of November, 1979, the petitioner had made minimal progress in the program and had offered little participation. (He had come into the program in a circumstance where he was placed on suicidal precaution.) In these early phases of the treatment, the patient was distant and withdrawn and wrote notes in the group therapy sessions as opposed to communicating orally. His attitude was childish and immature and he was prone to "horseplay" and to breaking rules of the unit, for which violations he was placed in seclusion. It was difficult in the 1979 year for the therapist assigned to the Petitioner's case to establish goals for his improvement in the group setting and as a consequence an attempt was made to use individual therapy sessions to address the particular needs of the patient. By March, 1980, at the time of the next staffing of the patient to determine his progress, again minimal progress had been demonstrated; however, there had been some increase in participation in the group programs, two or three weeks prior to the staffing. The patient still had a maladaptive coping style and had problems controlling his anger and depression and still had a tendency to "act out," that is to say be involved in inappropriate behavior. At the conclusion of the March, 1980, staffing it was intended that another evaluation be made within ninety (90) days. By June, 1980, a decision had been reached to change the primary therapist for the Petitioner, from a female to a male therapist, due to the fact that the Petitioner utilized the sessions with the female therapist to seek her attention in an unacceptable way. In June, 1980, Michael Pomeroy became the therapist for the Petitioner. Pomeroy served until May, 1981. Pomeroy is a clinical psychologist. Pomeroy was replaced by Michael Denny, another clinical psychologist at the hospital and Denny worked with the patient from May, 1981, through July, 1981. Denny replaced Pomeroy when Pomeroy left the sex offender unit. In the overview, by April, 1981, when the staffing was held, Rinehart was no longer evidencing the same form of childish behavior that he had shown initially; however, the staff at the hospital was uncertain whether this change had been promoted by the aging process and maturity associated with that process or due to the therapy afforded. In the April staffing a discussion was made on the question of the twenty-five (25) year minimum sentence which the Petitioner was facing for the offense which had caused his placement in the program. By that time, i.e., April, 1981, the staff had more or less reconciled itself to the fact that Rinehart was going to make little progress in coming to some understanding of, and dealing with, the underlying sexual difficulty. Consequently, beyond April, 1981, for a period of up to one year, it was intended that an effort should be made to assist the Petitioner in coping with a prison environment. This plan of treatment came about as a result of a discussion between staff and the Petitioner's attorney. The emphasis of this coping mechanism was to assist the Petitioner in choosing friends in a prison environment; the types of behavior to avoid in prison; an effort to share experiences from people who had been in a prison environment and who were in the sex offender program and to give the Petitioner some vocational training skills which would avoid his confinement without any outlet. The April, 1981, plan was put into effect but it was interrupted in July, 1981, due to an indictment placed against the Petitioner for an alleged homicide involving a staff member at Florida State Hospital. This caused another staffing conference to be held on July 29, 1981, at which point a decision was reached which was to exhaust treatment on the Petitioner and have him returned to court. Subsequent to that date, the Petitioner has been in the maximum security building of the hospital for reasons of security and for reason that his attorney did not wish the hospital staff to talk to the Petitioner. Therefore, the Petitioner has not been involved in the sex offender program since late July, 1981. After the Florida State Hospital had decided to exhaust treatment on the Petitioner, a discussion was held between the directors of other programs in the State dealing with sex offender problems and it was the consensus of those other program directors that they could not assist in treating Rinehart's condition and a determination was reached at the Departmental level to exhaust treatment. The testimony of psychologist Pomeroy established that the Petitioner was angry when Pomeroy took over as the Petitioner's primary therapist from the former therapist Carol Ford. The Petitioner expressed his anger by wearing sunglasses at the group therapy sessions. After a time, the Petitioner began to show some maturity and to evidence a change in attitude. The Petitioner was receiving instruction from a special teacher during this period to assist him in coping with his educational deficit. He still continued to manipulate the female aides by pouting and acting inappropriately. Pomeroy responded to this by treating the Petitioner as he would other adults and the Petitioner seemed to respond to being treated as an adult as opposed to being treated as a child. The Petitioner participated in ward government in the sex offender program and became more social. Nevertheless, he continued to have problems choosing the right kind of friends and had a tendency to choose those persons who would not aid him in becoming a more responsible individual. Pomeroy was in accord with the decision in April, 1981, to assist the Petitioner in his need to cope with the prison environment and the value of such a pursuit; however, as early as April, 1981, Pomeoy correctly identified the fact that the psychosexual problems of the Petitioner would not be alleviated by further treatment in the sex offender program and to that extent that element of the treatment had been exhausted in the spring of 1981. Pomeroy's observations of the Petitioner while Pomeroy was the primary treating psychologist included the observation that the Petitioner would not talk in a group therapy session beyond expression interest in his problem as opposed to in-depth discussion of that problem. Pomeroy did find the Petitioner to be helpful to other members of the group. Once or twice the Petitioner entered into some discussion of the Petitioner's problem. At this time, Pomeroy is of the persuasion that to keep the Petitioner in the sex offender program would be counterproductive. Staff psychologist Denny, when he began treating the Petitioner as primary therapist instituted a regimen that would include individual therapy once a week for one hour a week and two times a week for one hour in each session as a group therapy treatment modality. Denny had reviewed the patient's records up to the point of his involvement as primary therapist and had discussed the case with therapist Pomeroy and other staff members. On May 20, 1981, an attempt was made by Denny to have the Petitioner share his life history with fellow patients in the patient's group and to try to assist the Petitioner in understanding his personality style. All these matters were in preparation to allow the Petitioner to adjust to incarceration in the penal system and learn to cope with that incarceration. In June, 1981, in the Denny group sessions, the Petitioner began to discuss his parents and the crime which had placed him in the sex offender program and began to express to me concern about why he committed the crime. This occurred in two sessions. After that, the Petitioner began to participate less and less in the sense of discussing his problems with other members of the group. On July 6, 1981, at the time of a staffing, the emphasis as established through Denny's testimony was to impress upon the Petitioner his need to share the history of his life and to question others on his assumptions and to work on relating himself to others either in positive or negative exchanges. These concerns, in terms of the treatment of the Petitioner, were efforts toward the goals of teaching the Petitioner to let others know how he felt about certain events in the past and to question others when he was unsure about his premise and to share similarities in his circumstance and the circumstance of others. The Petitioner's performance in July, 1981, prior to the time of the indictment, was minimal. He shared less and less of his life's experiences in that time sequence. In one of these July therapy sessions, the Petitioner was very unresponsive and in the course of that session smashed a ping-pong ball which was part of the sports equipment of the unit. The efforts which have been mentioned previously which dealt with teaching the Petitioner vocational skills were successful during the time of Denny's treatment of the patient, in that the patient attended small engine repair classes and profited from that experience. The Respondent has a so earned a graduate equivalency diploma. By late June and early July, according to Denny, whose observations are accepted as factual, the patient was no longer motivated to deal with his underlying sexual problem and the hospital had exhausted all appropriate treatment. The patient, at that time, was still a sexual menace and there was still a likelihood of the patient committing other sexual crimes. In summary, his progress in rehabilitation of the underlying sexual deviancy was minimal. There is some evidence of record indicating problems dating from 1973, and at various times thereafter, of seizure disorders on the part of the Petitioner. (See Petitioner's Exhibits 1 through 16.) The Florida State Hospital was aware of the history of those matters and although the patient has complained of numerous headaches and been treated for those headaches with aspirin substitute during his stay at the Florida State Hospital, the patient has not complained of seizure circumstances during this period nor has he appeared to have had any form of seizure during the hospitalization at the Florida State Hospital. (His last problem with seizures dates from late 1978.) Moreover, testimony revealed that any past problems the Petitioner has had with seizure type events did not hinder the treatment of the Petitioner at the Florida State Hospital. (See also Respondent's Exhibits 5 through 9.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Harry William Rinehart, and that said Harry William Rinehart be returned to the committing court for further disposition. 1/ DONE and ENTERED this 23rd day of October, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1981.
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, James Guinn, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 15, 1981. A final hearing in this cause was scheduled for March 3, 1981, but was not conducted until April 2, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called Michael Pomeroy, Staff Psychologist in the forensic service at the Florida State Hospital as his witness. The Respondent called as witnesses Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's Exhibit No. 1 was admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Bradford County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning May 22, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as sexual deviation, pedophilia. This condition involves the use of young children as a sexual object to reach sexual gratification. In this instance, the Petitioner has been placed in the hospital unit for his involvement with a young child. During the Petitioner's stay, his most remarkable progress has been made in the area of adjunctive therapy, namely vocational education and rehabilitation and occupational therapy. He has learned the "trade" of small engine repair mechanic and has made sufficient progress to be marketable as a small engine repairman. In addition, he has worked as a voluntary laborer and has made progress in leather occupational therapy. As stated before, the primary treatment modality is group therapy, which involves group discussion between six to ten participants in the program and their primary therapist. These sessions meet two times a week for an hour. The members of the groups are persons who are experiencing similar problems, and the idea is to have those group members confront each other to divulge their problems and begin to correct those difficulties. By July, 1980, the treatment team, in conjunction with the Petitioner had overcome the Petitioner's difficulty with impulse control to a sufficient extent that the Petitioner was willing to discuss his past problems with his family and perhaps was ready to create an atmosphere of trust necessary to consider his underlying problem with sexual deviation. At that juncture, he was moved from his group conducted by a female therapist to a group with a male therapist. From that point forward, notwithstanding attempts to have the Petitioner deal with his problem in some detail, the Petitioner has remained superficial about his condition. The Petitioner is guarded and closed about his past and, to some extent, about his future desires. The Petitioner has been unwilling to examine his inner feelings to gain the necessary insight about his problems to develop an alternative coping mechanism for those times when he is confronted with the tendency to be sexually deviant. Without that insight, his progress has been minimal. In the group sessions, the Petitioner has found it easier to help others than to help himself. In the view of his silence, the therapist has been required to treat the outward manifestation of symptoms as opposed to treating the Petitioner's restatement of those symptoms. There has been some success in teaching the Petitioner assertion skills, that is to be assertive in exchanges as opposed to aggressive. The Petitioner intellectually understands the difference between expressing thought as opposed to expressing feelings, but he has had difficulty perceiving this emotionally. Guinn is at the place in the program which is described as a latter phase and in that phase, self motivation is essential. At the November 5, 1980, staffing to consider the question of whether the treatment has been exhausted, when confronted with questions about his sexual problem, the Petitioner was guarded, vague and evasive. When he received a negative report and an indication that it was the intention of the staff to recommend his return to court for reason of exhaustion of treatment, the Petitioner refused to attend the group therapy sessions until December 8, 1980. His return to the sessions was promoted by conversation with a staff psychologist. In January, 1981, he was moved to a new group with a different group therapist and has appeared at ease in the group therapy sessions recently held, but has failed to take the initiative and still appears superficial in his efforts to address his problem. At the November 5, 1980, staff conference there was one positive sign in that the Petitioner indicated that he no longer fantasizes about young boys in a sexual way but now fantasizes about women; however, he was unable to say when this change of attitude had occurred and it is, therefore, difficult to know how significant this statement would be, especially in view of the fact that his participation in the group therapy sessions is shallow. In addition to his improverent in impulse control, he has improved in his ability to relate to other persons on a superficial level. Guinn still has problems relating to persons on an interpersonal level. An example is his ability to relate facts about the crimes for which he has been placed in the program, as contrasted with his inability to state why he did those crimes. The Florida State Hospital has nothing further that they can offer the Petitioner in dealing with his sexual deviation and on December 11, 1980, the program administrators of the various sex offender programs within the State of Florida discussed the Petitioner's case and concluded that treatment had been exhausted in the entire system administered by the Respondent. The Petitioner wishes to stay in the program and feels that the program has a lot to offer and that he can learn more from the program. He feels that his problem of opening up in the group therapy sessions is associated with his fear of what people will think of what he has done. Nonetheless, he states that he would discuss his situation now, although he has not done so in the past. He feels that he has his problem under control and can go out and not commit crimes, although he still needs help for his condition because he is not completely under control. He states that he is willing to cooperate in further treatment. According to the Petitioner, he has not talked in the group sessions lately in view of the negative report in the staff conference of November 5, 1980.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for James Guinn, and that said James Guinn be returned to the committing courts for farther disposition. DONE and ENTERED this 14th day of April, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue Whether Respondent violated Sections 491.009(2)(k), and 491.009(2)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent held a license as a Mental Health Counselor in the State of Florida. Petitioner, through the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Respondent was employed as a counselor by the ACT Corporation (ACT) at the time of the incident that is the basis for this case. ACT operates a residential psychiatric treatment facility at which Respondent was employed. T.J. was a patient in the ACT facility from December 26, 1996 until mid-February, 1997. While at ACT, T.J. was diagnosed with bipolar disorder. T.J. had both group sessions and private sessions with Respondent while she was an in-patient at ACT. The private sessions took place in Respondent's office. Respondent and T.J. talked on the telephone, and he brought her small items, like lip-gloss and gum, that she was not allowed to have. T.J. alleges that the sessions became sexual on or about the second private therapy session. She alleges sexual contact during the in-patient sessions involved kissing and touching, that was consensual. T.J. states that she trusted Respondent and was in love with him. T.J. alleges this sexual relationship with Respondent continued after T.J. left ACT in February. There was never a therapeutic relationship between Respondent and T.J. after T.J. left the hospital. There was never any discussion of a fee arrangement, and no fees were ever paid for counseling sessions. Two days after T.J. left ACT, Respondent picked her up from her home and took her to Sapporo's for dinner and drinks. Following dinner, they went to a bar called the Barracks. T.J. alleges that when Respondent brought T.J. home that night they engaged in oral sex and intercourse. A few days later, T.J. and Respondent met for dinner at the Olive Garden. At the Olive Garden they had dinner and drinks. T.J. alleges that following dinner, Respondent walked T.J. to the van she was driving, they kissed and then had sexual intercourse in the van. On Valentine's Day Respondent came to T.J.'s house for dinner. T.J. lived with her parents. He brought her flowers and a bottle of wine for her parents. A card accompanied the flowers that said: "Sorry! No candy. Hope this will do instead." The envelope said "Traci." Following dinner, they went out to the Flagler Tavern. T.J. alleges that when they returned to T.J.'s house Respondent stayed until early morning and they had oral sex and intercourse. Respondent denies any sexual intimacy with T.J., and asserts that their relationship was one of patient-therapist even after she left ACT. T.J.’s testimony was presented by deposition. There was no opportunity to observe her. She was diagnosed contemporaneously with the events to which she testified with a condition that makes her credibility difficult to assess. Respondent testified at hearing denying the sexual relationship with T.J. I do not find the deposition testimony of T.J. credible regarding the allegations of sexual relations with Respondent. I find that there was a relationship between Respondent and T.J. because Respondent verifies the social contacts T.J. reported. Respondent did not perform any counseling with T.J. on the various occasions when they went to the bars and restaurants. This relationship was inconsistent with existing standards of professional conduct, as testified to by experts at hearing and exemplified in the code of ethics which ACT had. T.J. continued therapy as an outpatient with another ACT therapist for a short time after she was released from the hospital. During one of these sessions, T.J. told the outpatient therapist about her social/personal relationship with Respondent. Shortly thereafter, ACT fired Respondent for violation of ACT's code of ethics. This code prohibited personal relationships between patients and employees of the facility. Respondent had his Florida Teaching Certificate permanently revoked when he worked as a counselor at Deland Senior High School. He was charged with sexual misconduct with a student, and did not contest the charges formally. Psychotherapy is dependent upon a personal relationship between the patient and the therapist. Patients often develop emotional relationships or attachments to counselors or therapists because of the creation of an environment of trust. It is important that therapist recognize that this relationship is an outgrowth of treatment, and not to take advantage of the patient. Respondent had a relationship with T.J. that is contrary to the professional standards of practice, notwithstanding the allegations of sexual misconduct. His professional relationship should have been confined to the clinical setting, and the social activities in which he engaged with T.J. were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order adopting this order and revoking Respondent’s license and assessing a fine of $1,000 against him pursuant to Rule 64B4- 10.002 formerly 59P-5.001, Florida Administrative Code, the Board's penalty guidelines. DONE AND ENTERED this 17th day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of May, 2001. COPIES FURNISHED: Ismael Lopez 13691 Gavina Avenue, No. 447 Sylmar, California 91342 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, William Thomas Massey, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division or Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 9, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until February 4, 1981, so that Petitioner might secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called as witness Michael Pomeroy, Staff Psychologist in the forensic service at the Florida State Hospital. The Respondent called Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital as its witness. Respondent's Exhibit No. 1 was admitted into evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning March 1, 1979, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period, in fact, no significant change has been observed in the petitioner's sexually deviant condition which dates from 1960. That condition has been diagnosed as homosexuality with a secondary diagnosis of personality disorder, inadequate type. This latter condition is manifested by maladapted behavior in the sense of lack of impulse control, in the sense that the Petitioner has a short temper when matters do not transpire in a fashion that he would approve. Referring again to the Petitioner's participation in the group therapy sessions, he lacks personal involvement. In this connection, the Petitioner has a problem becoming open and honest with the other members of the group, notwithstanding his ability to deal with their problems in the group session. He presents himself superficially to the members of the group, getting along with those members but not letting the group participants get close to him nor he to them. In summary, the Petitioner has cooperated superficially but has not progressed. If the Petitioner remains in the program, he is not expected to progress in group therapy. The Petitioner was placed in the program having been found guilty by jury on a charge of sexual battery on a seventeen year old male. The Petitioner does not acknowledge that he has committed a crime and he has not progressed in dealing with his propensity to commit homosexual acts with younger men. In other words, there has been no basic personality change in the Petitioner. Petitioner, having a past history of alcohol abuse, has participated in and completed the alcohol abuse program for the forensic service at the Hospital. He still participates in the Alcoholics Anonymous program on the ward, is a member of the Jaycees and is a ward representative for grievance matters. The Petitioner has been involved in the ancillary therapies; leather and music in the past, and was involved in wood occupational therapy at the time of the hearing, but his attendance was below average. He lacked interest in that therapy program. The Petitioner also writes articles for the Hospital newspaper. The Petitioner has the freedom of movement on the grounds of the facility that includes walks and attendance at dances. At the November, 1980, staffing conference concerning the Petitioner's case, Petitioner expressed an interest in vocational rehabilitation. The ancillary programs as discussed herein in the absence of progress in the primary treatment modality, i.e., group therapy, will not promote satisfactory progress and change the determination that the Respondent has exhausted treatment on the patient. On December 11, 1980, the Petitioner's case was presented to the screening committee of Unit Directors of all mentally disordered sex offender units within the State of Florida, and it was the unanimous opinion of those members that the Respondent had exhausted treatment for the Petitioner as a mentally disordered sex offender. This determination comports with the conclusion reached at the staffing conference held at the Florida State Hospital and reported as Respondent's Exhibit 1, admitted into evidence, which determined that the facility where the Petitioner was assigned had exhausted treatment. The Petitioner feels like he continues to be helped by the & program and is making progress and has greater self esteem, in addition to being able to relate to others better. Specifically, the Petitioner feels that he is able to control his temper better and has gained an insight into his problem with alcoholism. Nevertheless, the Petitioner would not benefit sufficiently from further hospitalization in the sex offender program, to cause a change in the determination that the Respondent has exhausted treatment for the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for William Thomas Massey, and that said William Thomas Massey be returned to the committing court for further proceedings. DONE and ENTERED this 5th day of March, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue is whether Petitioner should be dismissed from his employment as a tenured professor at Florida A & M University as proposed in a termination letter dated October 17, 2003, on the grounds that he violated Rules 6C3-10.103 and 6C3-10.230, Florida Administrative Code.
Findings Of Fact Petitioner, Dr. Donald Allen, was hired by Respondent, Florida A & M University, as an associate professor in 1993. Three to four years later, Petitioner attained the status of tenured professor, which he held until his termination from employment on September 18, 2003. Petitioner is also known as Dr. Daudi Ajani ya Azibo. While employed by Respondent, Petitioner authored numerous scholarly articles and books. Dr. Allen was recognized by the International Association of Black Psychologists as a distinguished psychologist. Petitioner has also been recognized by the Journal of Black Psychology for his work and, as a result, Respondent’s Psychology Department has been regarded as the top department in Black Psychology. The Journal of Black Psychology has devoted two issues solely to Petitioner’s work, a heretofore unprecedented move. During the fall semester of 2002, Petitioner taught a course for Respondent in Black Psychology. The class held approximately 100 students, one of whom was a woman named Brandi McSwain. Ms. McSwain received a passing grade on her first test in Petitioner’s class, but received a failing grade on her second test when she and three other students were caught cheating on the test. Petitioner informed the four students who had cheated on the test that they would have to pass the final two tests in the class in order to receive a passing grade. Each of the four students, except Ms. McSwain, passed the final two tests. Ms. McSwain approached Petitioner after class on the Thursday before Thanksgiving 2002, to discuss her failing grade on the second test while Dr. Allen was conducting office hours in an adjacent classroom. Ms. McSwain asked Petitioner if she could earn extra credit to make up for her failing grade. She offered to “do anything” in order to improve her test score. Dr. Allen asked Ms. McSwain to write her telephone number on the test paper so that he could contact her about her failing grade. Requesting a student’s telephone number was something Petitioner routinely did when he had too many students to handle during office hours. On November 23, 2002, Petitioner called Ms. McSwain to discuss her failing test score. Ms. McSwain offered to write a research paper or perform another assignment in order to earn credit for the failing grade. Petitioner informed Ms. McSwain that she would have to take the remaining two tests, along with the other three students who had cheated, then he would work with her to improve her score on the test on which she had been caught cheating. During the telephone conversation, a discussion took place between Dr. Allen and Ms. McSwain concerning trading sexual favors for a better grade on the failed test. Petitioner claims that Ms. McSwain initiated the discussion of exchanging sex for an “A” on the test. Ms. McSwain claims that Dr. Allen initiated the conversation of the exchange of sex for a good grade. Petitioner told Ms. McSwain that he did not trade sex for grades. Ms. McSwain told Petitioner that she just wanted to have sexual relations with him, not in exchange for grades, but because she had a “crush” on him. Petitioner believed that Ms. McSwain was attempting to exchange sexual relations for an “A” grade on the test she failed, and he repeatedly told her that he would not exchange sex for an improved grade. He stated the following: “Get the hell out of here. You’ve got to be kidding. There is no way you want me on you. I’m short, fat, bald, and 50.” Ms. McSwain convinced Petitioner that she wanted to have sex with him regardless of the impact on her grade. She said the sex she was offering was not about grades. “No sir, I just want to have sex with you.” Ms. McSwain purchased a tape recorder at a local Wal-Mart so that she could tape the conversations she had with Petitioner concerning their proposed sexual liaison. Petitioner and Ms. McSwain exchanged several telephone calls concerning arranging a sexual liaison. They finally agreed to meet at the Albertson’s grocery store on North Monroe Street in Tallahassee, then to proceed to a motel down the street. Petitioner and Ms. McSwain met at the Albertson’s, then proceeded to the Super 8 Motel down the street, arriving around midnight. Petitioner proceeded to rent the room in his own name, paying cash, while Ms. McSwain waited in her car. Petitioner came out to Ms. McSwain’s car and told her the room number, then he went up to the motel room. Ms. McSwain joined him in the room a few minutes later. Upon entering the room, and on several occasions when she was in the room with Dr. Allen, Ms. McSwain asked if she was going to get an “A” if she performed various sexual acts with him. Petitioner and Ms. McSwain discussed the sexual acts that he wanted her to perform and she repeatedly asked him if she was going to get her “A” if she performed one or another of the acts. Dr. Allen repeatedly told Ms. McSwain that this was not about grades and that he refused to trade sex for grades. Ms. McSwain testified that she spent no more than five minutes in the motel room with Petitioner, yet the tape recording she made while she was with Petitioner lasted approximately 30 minutes. Petitioner and Ms. McSwain caressed and discussed explicitly the sexual acts in which they were going to engage. Ms. McSwain began to dance for Petitioner and, as she began to remove her clothes, asked if he was going to give her an “A” for what she was doing or, presumably, for what she was about to do with him. Petitioner continued to tell her that “there is no grade in this.” At some point in the motel room, before any actual sexual intercourse took place, Ms. McSwain removed the tape recorder from her purse and said to Petitioner “I got you!” As she left the room with her tape recorder in hand, Ms. McSwain told Petitioner that he had better give her an “A” or she was going to turn over the tape to his wife and the people at Florida A & M. Dr. Allen did not dispute meeting Ms. McSwain at the motel, or that they agreed to engage in sex. Petitioner asserts a consensual sexual relationship and Ms. McSwain asserts a “sex for grades” scenario. The audiotape of the meeting at the hotel is largely inaudible, although enough of it is audible to make the following conclusions: Approximately 10 minutes into the tape, Ms. Mcswain states she is trying to get an “A.” Approximately 12 minutes into the tape, Dr. Allen says, “not related to grade”; Ms. McSwain responds that she is trying to get a good grade. Approximately 13 minutes into the tape, Dr. Allen states he does not swap grades for sex. Approximately 14-15 minutes into the tape, Ms. McSwain states that she is not having sex unless she gets a grade. Approximately 15 minutes into the tape, Ms. McSwain states she wants an “A,” then asks “I’ll get an ‘A’ if I have sex?” Approximately 17 minutes into the tape, Ms. McSwain states, “if I don’t get an ‘A,’ I’m not going to do it.” Approximately 18-19 minutes into the tape, she asks for an incomplete and states that she is not going to allow this class to ruin her life. Approximately 22-23 minutes into the tape, Ms. McSwain says, “I want an ‘A,’ and no one hears this if I get it. I don’t want to hurt anyone.” Approximately 31 minutes into the tape, Ms. McSwain leaves the motel room. Petitioner has had no contact with Ms. McSwain since November 24, 2002. Ms. McSwain did not return to the Black Psychology class for the remainder of the semester following their encounter at the motel. Ms. McSwain reported the incident with Petitioner to the Office of Equal Opportunity Programs on November 27, 2002, and met with the Director, Ms. Carrie Gavin. Ms. Gavin advised Ms. McSwain of Respondent’s rules and regulations and provided her with a form for filing a formal complaint against Petitioner. Ms. Gavin met with Ms. McSwain again on December 4, 2002, at which time she reviewed the audiotape made by Ms. McSwain of the meeting in the motel room. Ms. McSwain did not file a formal complaint at that time. Petitioner completed his grades on December 13 or 14 and submitted them to Respondent on or before December 16, 2002. On December 17, 2002, Ms. McSwain filed a complaint of sexual harassment against Petitioner, after Petitioner’s grades had been posted. Ms. Gavin notified Petitioner of the filing of the formal complaint by Ms. McSwain. Petitioner filed a written response to the allegations of the formal complaint. Ms. Gavin conducted an investigation into the allegations of Ms. McSwain’s complaint and concluded that “there was merit to the complaint.” The report generated by Ms. Gavin recommended that Petitioner should be terminated from employment because of prior disciplinary action pursuant to Rule 6C3-10.103, Florida Administrative Code. The report found that Petitioner had engaged in quid pro quo sexual harassment and had created a hostile environment with respect to Ms. McSwain. The basis of these charges was that “a sexual relationship was discussed during the point of dealing with grades” in discussion between a professor and a student. The recommendations from Ms. Gavin were reviewed by Respondent’s President, Dr. Fred Gainous, who issued a letter upholding the termination of Petitioner pursuant to Rules 6C3-10.103 and 10-230, Florida Administrative Code. Ms. Gavin indicated that over the last five years, five or six informal sexual harassment complaints and 15 or 16 formal sexual harassment complaints had been filed with her office. Of the formal complaints, eight had been substantiated and resulted in disciplinary action being taken. Respondent believes in the principle of progressive discipline. Disciplinary actions range from a written reprimand to a dismissal. Any employee with a second substantiated violation of the discrimination rule receives a recommendation of dismissal. Dr. Frederick Humphries, Respondent’s former president, issued a written reprimand to Petitioner for retaliation on April 20, 1999. Petitioner had retaliated against a group of students by providing a survey to “those members of his class who had not filed a sexual harassment complaint against him.” Also contained in that letter was language stating that any further infractions could lead to termination. Dr. Larry Rivers, Dean of Respondent’s College of Arts and Sciences, was informed of Ms. McSwain’s sexual harassment complaint by Dr. John Chambers, his assistant dean at the time, who informed him that Ms. McSwain did not feel comfortable returning to Petitioner’s class. Dr. Rivers instructed Mr. Chambers to make alternative arrangements for Ms. McSwain to complete the class. Petitioner issued Ms. McSwain a grade of “I” (incomplete) in the Black Psychology class. Ms. McSwain enrolled in one class during the summer semester 2003, but failed to complete it. She withdrew from the University in July 2002. Dr. Rivers has taught both undergraduate and graduate level courses for Respondent for approximately 25 years. In his role as a department chair and as dean, he has discussed his belief that it is always unprofessional for a professor to have any type of relationship, other than an academic one, with a student. The teacher-student relationship is one based upon power, with the teacher wielding the power. Respondent has no rule or regulation that prevents a faculty member from having a consensual relationship with an adult (greater than age 18) student.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the dismissal of Dr. Allen from his position at Florida A & M University. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of June, 2004. COPIES FURNISHED: H. B. Stivers, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Linda Barge-Miles, Esquire Florida A & M University Office of the General Counsel Lee Hall, Room 300 Tallahassee, Florida 32399-3100 Avery D. McKnight, Acting General Counsel Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100
The Issue Did Respondent, Hodges University (Hodges), commit an unlawful employment practice against Petitioner, Connie Leonessa, on account of her religion, as defined and prohibited by section 760.10(5), Florida Statutes (2018)?1
Findings Of Fact Parties Hodges is a university located in Ft. Myers, Florida. It offers a master's degree in counseling through the Clinical Mental Health Counseling (CMHC) program housed within Hodges' Nichols School of Professional Studies. Ms. Leonessa was a student in Hodges' CMHC master's program. Ms. Leonessa is an experienced registered nurse who has primarily served pediatric patients over the years. She also volunteered regularly to work with children in inner cities of the Northeast. Those experiences, her compassion for children, and her personal trauma of molestation drove Ms. Leonessa to want to serve children better. In her words, "and I just felt that God wanted me to go back to school to get a master's so I can help these victims." Ms. Leonessa was enrolled in Hodges from 2015 until the fall of 2018. Her goal was to prepare herself to provide counseling services to child victims of trauma. There is no persuasive, competent evidence proving that providing counseling services to child victims of trauma is a profession, occupation, or trade that requires a master's degree in counseling. In fact, paid positions in the counseling field are available without a master's degree. A master's degree, followed by two years of full-time, post- graduation, paid supervised work experience is required to obtain a mental health counselor license. So is passage of the NCMHCE Exam administered by the National Board for Certified Counselors. The persuasive, competent evidence of record does not prove that Ms. Leonessa intended to take the post-graduation steps required to obtain a mental health counselor license or to seek a mental health counselor license. Hodges' Master's Program Earning a master's degree in social work from Hodges requires successful completion of academic coursework, a 200-hour practicum, and three 267-hour internships. The providers of the practicum and internships are not part of or controlled by Hodges. The student is responsible for identifying and making arrangements with the practicum and internship providers. Hodges assists when it can. Hodges' program, like counseling itself, requires students to develop awareness of their preferences, prejudices, ethics, and philosophies and separate them from the support and guidance provided clients. Upon entering the program, students agree to abide by the requirements of a Clinical Mental Health Counseling Professional Attitude and Behavior Agreement (Agreement). Ms. Leonessa signed the agreement on September 2, 2015. The Agreement states the student's obligation to align her "personal ethics with the professional ethics as defined by the American Counseling Association (ACA) 2014 Code of Ethics [Code].” The Code was attached to the Agreement. The Agreement emphasizes the priority of avoiding harm to clients or future clients and taking care to not impose the counselor's personal beliefs, values, and behaviors on clients. The Agreement recognizes the ethical dilemmas the profession presents and articulates a student's obligation to consult others about the dilemmas and develop "an ever increasing ability to apply a professional ethic to difficult situations involving ethical dilemmas and associated law … ." As part of the Agreement, Ms. Leonessa agreed to have "an open and willing attitude toward feedback and suggestions given by faculty, peers and site supervisors to help the student reduce the possibility of harm." This tenet supports the value of requiring a counselor to put "a high priority on avoiding harm to clients or future clients." The Agreement obliges the student to understand and abide by the Code. The CMHC Student Handbook (Handbook) contains and emphasizes requirements similar to the Agreement's requirements. It encourages students to pursue personal therapy and growth, for their intrinsic benefits and to provide insight into what clients experience. The Handbook emphasizes that counselors are held to higher ethical standards and higher levels of personal growth and mental health than the average person. It states that evaluation of a student's progress in those areas is part of judging a student's suitability for the counseling profession. Hodges' program includes regular evaluation of a student's progress in "interpersonal interactions with students, faculty, site supervisors, and others involved with his/her academic progress." The program requires progress in those areas and provides for a Student Development Plan for remediation if the student does not improve his or her interpersonal interactions and skills. The Handbook directs students to review the Code. The Handbook requires students to work professionally and respectfully with fellow students, faculty, site supervisors, and site employees. The Handbook also requires students to accept others without rejection based upon, among other things, age, culture, gender identity, sexual orientation, religion, or marital status. A student commits to be "respectful of differing opinions and professional practice … ." A student also commits to work "to continually improve her/his professional relationship skills and clarify professional boundaries." The Handbook, signed by Ms. Leonessa, concludes with this affirmation: I understand that the Hodges University Clinical Mental Health Counseling Program requires students to perform adequately in areas of academic assessment that include the ability to form and continue positive relationships with others; the ability to acquire and correctly use counseling knowledge and skills, and the ability to successfully complete all practicums and internships in the judgment of the faculty and site supervisors. These expectations are in addition to the didactic coursework expectations and assessment procedures. I understand that I will be expected to continually improve my ability to demonstrate counseling competencies as I progress in the program. I further understand that the American Counseling Association 2014 Code of Ethics forms the basis of professional standards to which I must adhere. In sum, the nature of the counseling field that Ms. Leonessa sought to enter and the program at Hodges required students to develop an open and tolerant and patient way of communicating with people with whom they may disagree, even disagree vehemently. Conflict in Hodges' Academic Program Ms. Leonessa performed well in her academic work. But her interactions with three fellow students and a professor were marked with conflicts. She attributed the conflict to discrimination against her on account of her religion. The evidence does not support the attribution. Ms. Leonessa's sensitivity to the age differential between herself and other students and her aggressive personality caused conflict with fellow students. Ms. Leonessa acknowledged her aggressiveness, saying, "You know, I know I have a tone and I've been honest about that. I have a tone." (Tr. V. I, p. 206). Ms. Leonessa also had a pattern of attributing any disagreement or conflict to opposition to her Christian beliefs. Dr. Thomas Hoffman taught many of Ms. Leonessa's classes. Like Ms. Leonessa, Dr. Hoffman is a Christian. In email communications each referred to scripture. For instance, Dr. Hoffman, in counseling Ms. Leonessa about alleviating her repeated personal conflicts, advised her to be "wise as a serpent, but gentle as a dove." Ms. Leonessa, in defense of her combative approach said, "Jesus Christ spoke truth and was hated for it." Neither Dr. Hoffman nor any other Hodges representative ever prohibited Ms. Leonessa from referring to her Christian beliefs in communications with them. In addition, Dr. Hoffman never asked Ms. Leonessa not to share her religious views, such as her anti-abortion beliefs, in class. As the years passed, Ms. Leonessa's communications to Dr. Hoffman grew increasingly querulous and combative. Her tone was frustrated and loud. She challenged Dr. Hoffman's competence, honesty, and integrity in a disrespectful manner. Ms. Leonessa clashed, in class and outside class, with three fellow students. She felt the students did not treat her with the respect that was her due because of her age. Ms. Leonessa had a dispute with one student about abortion. She had conflicts with another about the use of the "F" word in class. Ms. Leonessa had a conflict with a third student who said that Ms. Leonessa was trying to impose her values in class. During these conflicts, Ms. Leonessa raised her voice and spoke hostilely. Sometimes she pointed her finger. In an encounter outside of the school, one of the students told Ms. Leonessa that Ms. Leonessa's beliefs were "f…ed up" and that Ms. Leonessa should attend a Christian school. Once Ms. Leonessa jerked on another student's purse strap to make a point. Those three students did not have conflicts with other students or faculty. Also, as will be addressed below, Ms. Leonessa had significant problems in her internships, problems the other students did not have. The three students were not similarly situated to Ms. Leonessa. Due to these conflicts and ways of interacting with Dr. Hoffman, Hodges faculty met with Ms. Leonessa in February 2016 in an informal coaching session. The purpose was to address Ms. Leonessa's inability to control her emotions and express herself in an appropriate manner. These are all issues whose importance to counseling the Agreement, the Handbook, and the Code all emphasize. Ms. Leonessa's religious beliefs were not the reason for convening the coaching session or the communications during it. The faculty also conducted informal coaching sessions with the other three students. Despite the coaching sessions, Ms. Leonessa's conflicts with the students and Dr. Hoffman continued. Hodges' Handbook provides for establishing a formal Student Development Plan (SDP) to assist students who are not performing in a manner that is consistent with the Code. An SDP's purpose is to formalize concerns not resolved by the informal coaching and provide a plan for addressing them. It is a remedial measure. Hodges established SDPs infrequently. Since 2011 it has implemented seven. The faculty created an SDP for Ms. Leonessa and placed her on it in October 2016. Ms. Leonessa's religious beliefs played no part in the decision to create the plan or setting the plan's requirements. The behaviors which the SDP addressed included the changes in Ms. Leonessa's tone and raised volume when she disagreed with others, her practice of interrupting others with whom she disagreed, and her belaboring of class topics well after the instructor was trying to move the class to a resolution and on to the next subject. The plan provided supports and measurable goals for Ms. Leonessa. They were: (1) pairing her with a third-year student as a mentor, (2) completing a case study assignment, (3) completing role-playing exercises, and (4) documenting her changes of tone and volume in class. Ms. Leonessa disagreed with the SDP but agreed to follow it and signed it some two months after the faculty presented it to her. The role-playing exercises assigned to Ms. Leonessa involved same-sex attraction and abortion. The faculty selected these two topics because they recur frequently in counseling. Ms. Leonessa's religious beliefs were not the reason for selecting the topics. Ms. Leonessa successfully completed the SDP. The three students with whom Ms. Leonessa clashed were not placed on SDPs. Their issues did not match Ms. Leonessa's in frequency or intensity. Practicum Ms. Leonessa sought to establish a practicum placement at Cape Christian, also known as Samaritan Health and Wellness Center (Cape Christian). There was some uncertainty whether the supervision available at Cape Christian met Hodges' requirements. Ms. Leonessa's contact at Cape Christian, Ms. Trout, was not satisfactorily responsive to Ms. Leonessa's efforts to sort the issue out. This resulted in combative telephone calls and emails from Ms. Leonessa to Ms. Trout. An excerpt from one email illustrates Ms. Leonessa's pattern of hostility and injection of religion into disputes. In a December 5, 2016, email to Ms. Trout from Ms. Leonessa describing her displeasure with the responsiveness of Cape Christian and a conversation with one of Ms. Trout's co-workers, Ms. Leonessa wrote: You stated I chewed her out but you were not on the phone. I did not disparage her character in any way, I said as believers we are to keep our word and that now I would have to find another place at the last minute. That is all I said. The Bible says be angry and sin not. According to what I have heard, you do not believe people should be angry and I would bet there are times in your life when you have had an unprofessional tone. Also I have had to wait weeks before hearing back from you, it amazed me how quickly you called about this situation-seconds! Ms. Trout replied: If you were my student and you'd have behaved in the manner as this [sic], you would be put in a professional development status, complete with remediation, to determine your appropriateness to move forward in the field of counseling. The fact that you sent this email in its current form further highlights the display of lack of professionalism and emotional maturity now exhibited in two separate phone calls as well. I would encourage that you seek some assistance in processing your emotions, and the manner in which you communicate those. I wish you the best. Ms. Leonessa replied to Ms. Trout, "Please do not contact me further." Ms. Trout forwarded the email exchange to Sue Hook and Dr. Mary Nuosce of Hodges. Dr. Nuosce answered, "Amy, I apologize for her total lack of professionalism. We are working on this. Thank you for your patience." This incident triggered an update to the SDP. The update was because of Ms. Leonessa's conduct and unrelated to her religious beliefs. Ultimately, Ms. Leonessa obtained and successfully completed a practicum with FRS/Omega Center. Tina Friedman was her supervisor. Ms. Friedman twice noted in the July 7, 2017, evaluation form that Ms. Leonessa required ongoing attention in the area of values management. The values criterion relates to many of the requirements and principles of the Agreement, the Code, and the Handbook. The evaluation form describes it thus: "Value Management: How did the student cope with values? Were attempts made to impose the student's values during the interview?" Ms. Friedman's Session Evaluation Form noted, "Connie does repeatedly offer her own values during client/student interaction." Ms. Friedman wrote a note to Ms. Leonessa on the form stating that Ms. Leonessa's development was at an expected level save for in values management. The note went on to specify: "Please work more diligently in this area as that may [prove] to be a problem in the future." The August 17, 2017, final evaluation emphasized the problem stating, HER BURNING DESIRE TO INITIATE CHANGE, MAY PROVE TO BE HER MOST DIFFICULT PERSONAL CHALLENGE AS A CLINICIAN. IT IS HOPED THAT IN TIME AND WITH FURTHER EXPOSURE TO THE TENETS OF EFFECTIVE COUNSELING, CONNI CAN LEARN TO ACCEPT AND MEET THE CLIENT WHERE THEY ARE AT IN THE PROCESS. CONNI HAS STRONG, DEEP ROOTED BELIEFS AND VALUES, WHICH MAY BE DIFFERENT THAN THOSE OF THE CLIENTS AS WELL AS HER PEERS, THAT SHE ENCOUNTERS. I HAVE SHARED THIS OBSERVATION WITH CONNI AND HAVE ENCOURAGED HER TO CONSIDER THE IMPORTANCE OF BEING OPEN AND ACCEPTING TO THE DIVERSITY OF THE POPULATION SHE WILL SERVE. Internships Ms. Leonessa obtained an intern position with True Core Behavioral Solutions (True Core). True Core provided services to the Ft. Myers Youth Academy, a juvenile detention center. True Core terminated Ms. Leonessa's internship after two days. The problems leading to her termination were those of value imposition and boundary crossing presaged by her practicum. Ms. Leonessa participated in two counseling sessions for the juveniles. Her improper conduct included sharing personal information about her abandonment by her husband and her celibacy since then. In the counseling profession this boundary crossing behavior is often damaging to the therapeutic process. Ms. Leonessa also criticized a young man who supported his girlfriend obtaining an abortion, telling him abortion was murder and talked about holding premature babies in her hands. She criticized some of the youth for engaging in premarital sex telling them it violated God's law. She told one young man his troubles stemmed from abandonment by his father. This conduct demonstrated emotionalism and an inability to respect client perspectives that the SDP was intended to ameliorate. For this reason, Hodges updated the SDP. Ms. Leonessa acknowledges that it would be professionally wrong for a counselor to advocate her personal religious beliefs and values to clients. She denies that she did so. But the preponderance of the competent, substantial evidence proves that she did. True Core reported Ms. Leonessa's termination and the causes for it to Hodges. After Ms. Leonessa's termination from True Core, Dr. Mary Nuosce, Dean of the Nichols Schools of Professional Studies and a faculty member, tried to assist her in finding another internship placement. Dr. Nuosce was the supervisor for Ms. Leonessa's internships. She approached Janean Byrne from Serenity Counseling about accepting Ms. Leonessa as an intern. Dr. Nuosce thought Serenity might suit Ms. Leonessa more because it was a faith-based counseling provider. She gave Ms. Leonessa Ms. Byrne's contact information and asked her to follow up on establishing an internship. Ms. Leonessa did not seek the internship. She refused to contact Ms. Byrne for non-specified reasons. She told Dr. Nuosce, "I just emailed her [Ms. Byrne] and turned down the position. What occurred today has taught me that I need to find a place where my values are shared and respected so I will continue to look for a sight [sic]." When Dr. Nuosce asked how she could be so judgmental about someone she had never met, Ms. Leonessa responded, "I never said anything against her [Ms. Byrne], however, I am looking for a place that shares my biblical values especially after what occurred today that is all. I do have the right to choose where I want to intern at!" Hodges' faculty continued efforts to help Ms. Leonessa locate an intern position. Ms. Leonessa obtained an internship at HEADS. Within a few weeks, HEADS dismissed her. Ms. Leonessa worked with therapist Julie Jakobi attending sessions with clients. Jerry Sprague, HEADS's clinical supervisor for Ft. Myers, selected Ms. Jakobi to work with Ms. Leonessa because he was aware of Ms. Leonessa's ardent Christian beliefs and Ms. Jakobi held similarly strong Christian beliefs. The first client Ms. Jakobi and Ms. Leonessa saw was a 13-year old female with a long history of running away and conflict with her mother. They saw her at school in a room in the office. The student was very concerned about telling her mother that she was gay. After the student left the room, Ms. Leonessa turned and loudly and aggressively confronted Ms. Jakobi telling her she was wrong in her counseling of the student. Ms. Leonessa insisted Ms. Jakobi should have told the student that she would catch sexually transmitted diseases, she would become depressed, and she would commit suicide. The room's door was open, and a secretary sat right outside the door. The lack of privacy and danger to client confidentiality concerned Ms. Jakobi. They also visited a client, a man concerned about becoming an opioid addict and the effect on him of growing up in a rough neighborhood. He and his wife were separated and had completed the documents necessary to finalize their divorce. Ms. Jakobi had informed Ms. Leonessa of the pending divorce before they arrived at the home. Ms. Jakobi and Ms. Leonessa met with the client at his wife's home. Ms. Leonessa began talking to the man about how he could work through his problems and learn to love his wife better. This "froze" the client and sabotaged efforts to provide the addiction counseling he sought. On the drive back to the office, Ms. Leonessa was very rude and hostile to Ms. Jakobi. Ms. Leonessa was physically tense. Her tone was sharp. Ms. Leonessa brought up homosexuality again and renewed advocacy of "conversion therapy." At the time, this was not permitted. As soon as she left Ms. Leonessa at her car, Ms. Jakobi called Mr. Sprague to report the day's incidents. He concluded that quick action was required and asked Ms. Leonessa to apologize to Ms. Jakobi. It is worth noting that Mr. Sprague's email signature quotes from the Bible, Psalm 82:3. Ms. Leonessa’s apology read as follows: "I realize not everyone see's [sic] things eye to eye. However when differences occur truth needs to be spoken in a way that is gentle. I realize my 'tone' is not always gentle and I am working on this." This is no apology and was not received as one. Mr. Sprague spoke further to Ms. Jakobi and another counselor who worked with Ms. Leonessa about their experiences with her. He concluded that he was "not convinced that she will not cause harm." He decided that terminating Ms. Leonessa promptly was best. Mr. Sprague's September 27, 2018, email to Dr. Nuosce explaining his decision is persuasive and was reasonably accepted by the Hodges faculty. He began by reporting that Ms. Leonessa was very difficult to communicate with. He reported that Ms. Leonessa "failed at a very basic level to demonstrate the ability to maintain appropriate boundaries and to demonstrated basic empathy skills." His email went on to state: I would be surprised if you didn't already know this as her strong personality, strong beliefs and aggressive tendencies are hard for her to manage. She had told me she has had conflicts with professors so I imagine this is why. He concluded that Ms. Leonessa was "stuck on a superficial (immature) level of reasoning and so she is failing to both read others well and to maintain appropriate social boundaries … ." Mr. Sprague strongly suggested Ms. Leonessa consider a different career than counseling. This report, supported by the evidence in this case, caused Dr. Nuosce to conclude that Ms. Leonessa was not complying with her revised SDP. Also Ms. Leonessa had failed to complete two internship programs and one practicum. Failure to complete the practicum revealed significant problems which persisted. Three internships are required to obtain a counseling degree from Hodges. Ms. Leonessa completed none. For these reasons, Hodges administratively withdrew Ms. Leonessa. Ms. Leonessa appealed within the Hodges system. Her appeal papers did not acknowledge what she had done wrong or how she proposed to improve. Instead they discussed her background and accused Hodges of repeatedly violating its policies and procedures. Hodges' Provost reviewed the many documents generated during Ms. Leonessa's tumultuous enrollment. He noted the similarity of reports of unacceptable behavior from different and unrelated sources, within and without the University. He denied the appeal. Summary The record of Ms. Leonessa's three years in Hodges' counseling program, including her time in practicum and internships, is a record of consistent, disputatious conduct. When the subject of religion, specifically Christianity arose, it was because Ms. Leonessa initiated criticisms of others' behavior as unchristian, because Ms. Leonessa sought to advocate her Christian views to counseling clients, and because she explicitly judged clients' actions, decisions, and options by her standards. The evidence does not prove that Hodges took any actions against Ms. Leonessa, including imposition of the SDP and termination from the program because of her religion. Hodges' terminated her because she violated the fundamental counseling requirement to accept clients as they are and not seek to impose her values on them. The record does not prove that any of the practicum and internship providers took any actions against Ms. Leonessa on account of her religious beliefs. Furthermore, the practicum and internship providers were independent of Hodges. They were not subject to its control or direction or acting in its stead.
Recommendation It is Recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Connie Leonessa. DONE AND ENTERED this 22nd day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Thomas K. Rinaldi, Esquire Bond, Schoeneck & King, PLLC Suite 105 4001 Tamiami Trail North Naples, Florida 34103 Cheyanne Costilla, Gen. Co. Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Connie Leonessa American Liberties Institute Post Office Box 547503 Orlando, Florida 32854 Matthew Brown McReynolds, Esquire Pacific Justice Institute Post Office Box 276600 Sacramento, California 95827 Michelle Wilson, Executive Director Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
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.
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: Respondent is an instructor in computer programming and networking at the College. 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. 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. 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. 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. 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. 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. 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. Respondent and Ms. Zemola continued their relationship until December 1995, at which point Ms. Zemola ended it. 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. 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. 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. 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. 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. 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. 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. 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.” 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. No evidence was presented that Respondent ever attempted to contact Ms. Zemola after she ended the relationship. 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. 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. 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 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; 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 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. 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. 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. 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. 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. 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. 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. 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.” 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. 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. 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.) 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. 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. 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.” 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. 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. 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. 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. 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. 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. On May 8, 1997, the College filed the Petition. The essential allegation was framed as follows: 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. In addition to the allegations regarding Respondent’s romantic and/or sexual relationship with Ms. Zemola, the Petition alleged: 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. The remaining factual allegations contained in the Petition are for the most part conclusions alleged to arise from Respondent’s conduct: 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. 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. 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. No evidence was presented of any “adverse consequences” to other students, faculty, staff, or members of the community, caused by Respondent’s actions. 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. 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. 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. No evidence was presented to demonstrate that Ms. Zemola’s grades or academic advancement were in any way compromised by her affair with Respondent. 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. 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. 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. 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. 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. No evidence was presented to demonstrate that Respondent’s actions created “an intimidating, hostile and/or offensive educational environment for the student and others.” 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.
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
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Frank T. Henderson, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Deportment of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 5, 1981. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until March 3, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's two exhibits were admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with that order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning July 28, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the tart of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as (1) passive aggressive personality, passive type, (2) inadequate personality and (3) sexual deviation, incest. Henderson has been placed in this program as a result of incestuous activity with his daughter. His present condition is best described as a personality disorder with passive aggressive features. Metaphorically, an individual suffering from this form of personality disorder, if asked to mow the lawn and in doing so becomes confronted with flowers he would mow the flowers down rather than go around then. Typically, this type of disorder carries with it certain coping mechanisms such as problems with employment, substance abuse, and sexual deviation. Of these mechanisms, Henderson suffers from the latter two and in particular still has a propensity to act out in a sexually deviant manner. Group therapy has been described as the primary treatment form in the sex offender programs of the Respondent and the petitioner has advanced through the initial levels of the program and is now involved in the final level offered through group therapy. In that connection, his group meets one to one and one half hours, two or three times a week. The majority of his treatment while involved in Level III has been under the control of psychologist Michael Denny. This commenced in June, 1979, and ran through January, 1981. In the first five (5) months of the group work, Denny attempted to establish a rapport with the Petitioner and to discuss the Petitioner's marriage and personality style and from November, 1979, through January, 1981, attempted to treat this personality style and propensity to commit sexually deviant acts. Success in this effort was limited due to the Petitioner's failure to heed advice concerning his problems and personality style and problems with sexual deviancy. Henderson is aware of the dynamics of what lead him to commit sexual battery on his daughter and of his problems with his marriage which lead him to seek out alcoholism as a defense mechanism, to inappropriately keep people at a distance, and the ensuing problems. Nonetheless, the Petitioner has failed to alter his problem state and his present posture in such that the group therapy sessions will not assist in rehabilitation, and in view of the fact that the group therapy sessions are the means of ameliorating his sexual problems, treatment has been exhausted. The Petitioner is still likely to act out in a sexually deviant manner. The attempt of trying to get Henderson to be more assertive with other males and females has met resistence by Henderson through his internalization of feeling, and he would be prone to abuse substances to assist in this internalization, with the result being that the utilization of those substances would cause him to be abusive with others. Henderson continues to blame others for his problems and is superficial in interaction with others and lacks the depth of a close relationship. Only one time in the period of one and one half years that psychologist Denny dealt with Petitioner did the Petitioner express his inner feelings. Henderson also has problems following small rules or agreements with other persons. Finally Henderson has a tendency to use religion as a foil to discussing his disorder. Although asked not to use that defense mechanism in the course of the group sessions, Henderson has used religion as an unsatisfactory explanation for his deviancy. The clinical summary and report of the staff of the Florida State Hospital, rising from the November 12, 1980, staffing, may be found as Respondent's Exhibit No. 2, admitted into evidence, and this summary expresses the staff's opinion that treatment has been exhausted and the recommendation that the Petitioner be returned to the committing court. This determination was followed by an interdepartmental discussion of the Petitioner's case which was held by the various unit directors of the sex offender programs within the Department's control and it was the opinion of those unit directors that treatment of the Petitioner's condition has been exhausted. Petitioner has progressed in areas outside of the group therapy sessions to include participation in an alcoholics anonymous program in which he graduated and vocational participation in small engine repair and office education, wood therapy and leather therapy, participation with the Jaycees at the hospital and attendence at religious services. The quality of his performance in the adjunctive therapies is not sufficient to cause a change in the basic nature of the Petitioner's condition for which he was committed as a sex offender and is not such that it would cause a change in the determination that the Respondent has exhausted treatment for the Petitioner. Henderson states that he realizes what caused his crime in the sense that he was not assertive and was rejected and hurt to the extent that he was not performing normally and held hatred in his heart for his stepmother and wife. He said that he has enjoyed using hatred as a defense mechanism and was wrong and should take those problems to God and people. He feels that he has friends on the ward in his area and has had close relationships with the staff until he had problems with his back requiring surgery. (The staff feels that some of these problems are "psychosomatic.") He wanted to be removed from Denny's group and this was accomplished but he still feels bitter and hurt. He has expressed a willingness to work on his problems, but he conditions this on the fact that his willingness depends on the consensus of the staff of the Hospital that he needs further assistance, having determined in his own mind that his problem is under control.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Frank T. Henderson, and that said Frank T. Henderson be returned to the committing court for further disposition. DONE and ENTERED this 19th day of March, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1981. COPIES FURNISHED: J. Craig Williams, Esquire 335 East Bay Street Jacksonville, Florida 32201 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
