STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 85-0834

)

DONALD C. MUNAFO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a consolidated hearing was held in the above-styled cases on December 3, 1985, at Clearwater, Florida.

APPEARANCES

For Petitioner: Usher L. Brown, Esq.

Post Office Box 1549 Orlando, Florida 32802

For Respondent: Tom McCoun, Esq.

Bank of Florida Building,

150 Second Avenue North, Suite 1210 St. Petersburg, Florida 33701

By amended charging document dated January 4, 1985, the Superintendent, Pinellas County School System, Petitioner, suspended Donald C. Munafo, Respondent, in Case 85-0834 from his position as a continuing contract teacher with the Pinellas County School Board and advised Respondent that he would recommend to the School Board that Munafo is guilty of immorality and misconduct in office for participating in the making, production, or distribution of photographs and movies in 1983 and 1984 which contain a primarily sexual theme.

By Administrative Complaint dated September 25, 1985, the Commissioner of Education, Petitioner, seeks to revoke the teaching certificate of Donald C. Munafo, Respondent, in Case 85- 3538. As grounds therefor it is alleged that Respondent in 1983 and 1984 engaged in the making, production, and distribution of sexually explicit photographs and movies, the contents of which are immoral for the involvement of teachers. It is further

alleged that Respondent involved one minor female in the production of such sexually explicit material and was charged by the United States District Attorney for sending sexually explicit material involving minors through the United States mail system. These acts are alleged to constitute gross immorality or moral turpitude, and conduct which seriously reduces Respondent's effectiveness as an employee of the School Board.

Since both charges involve the same acts and similar allegations, these cases were consolidated for hearing. At the hearing Petitioner called five witnesses, Respondent called four witnesses, including himself, and 21 exhibits were offered into evidence. All were admitted except Exhibit 15, to which an objection on grounds of hearsay was sustained.

There is no real dispute regarding the material facts alleged in these cases. Proposed findings have been submitted by the parties. Rulings on each of the proposed findings are contained in Appendix A, which is attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Donald C. Munafo was certified by the Department of Education and employed on continuing contract by the Pinellas County School Board as a physical education instructor at the 16th Street Middle School in Clearwater. He has been employed by the Pinellas County School Board for approximately 15 years.

   
   

2. Munafo has been involved in photography for a number of years and has done professional photography for ten years as a sideline to his primary occupation as a school teacher. He is a member of Bay Photographic Association located in the Tampa Bay area, which is an affiliate of Florida Professional Photographers.

   
   

3. In May 1984 Richard Norgrove, who also taught at 16th Street Middle School, formed Edventure Media, Inc., to provide himself and his wife with a tax shelter and to produce educational and training videos. Knowing Munafo to be a professional photographer, Norgrove consulted with him as to ideas on equipment Norgrove needed. After forming the corporation and making a few training films, Norgrove decided to produce a video of a "cat fight," which involves two females in brawl. He advertised for models to engage in a wrestling match and employed two who responded to his ad. Norgrove prepared a simple script and did the filming at his home. He requested Munafo to take some stills during the video filming to use to advertise copies of the cat fight for sale. To accommodate

   Norgrove, Munafo took still photographs of the models while Norgrove made the videotape of the girls tearing each others. clothes off and simulating a real fight. By the end of the video each girl was wearing only panties. This video was titled "The Dress."

   
   

4. Shortly thereafter, Norgrove decided to make another cat fight video and again advertised for models. One of the girls answering the ad was Lisa Anderson. Norgrove again asked Munafo to take still shots while Norgrove made the videotape. Again Munafo agreed to help in the endeavor, knowing that the still shots would be used to promote the video and/or sold. Munafo received no compensation from Norgrove other than the cost to Munafo for supplies and for developing the pictures.

   During the taking of this video, which was titled "The Boyfriend," both of the models were reduced to complete nudity. Lisa Anderson was one of the girls involved in the video of "The Boyfriend."

   
   

5. Lisa Anderson had answered Norgrove's ad by telephone, and they first met at a bar where Lisa was served alcoholic beverages. She had told Norgrove she was 23 years old and was anxious to make some money modeling and did not object to removing her clothes. Lisa subsequently signed a release stating that she was over 18 years old. As a matter of fact, Lisa was 17 when the video and subsequent photographs of her were taken.

   Lisa did not testify in these proceedings, but led Norgrove to believe she had been married twice and at the time the video was made was living with two men. One newspaper article (Exhibit 20) stated she was the mother of two children. Norgrove packaged "The Dress" and "The Boyfriend" on one cassette (Exhibit 8) and advertised it for sale in adult magazines under the title "Battling Beauties." He sold between 20 and 50 of these cassettes for approximately $60 each. Munafo took no part in promoting the cassette, mailing the cassettes, nor did he receive any percentage of the money Norgrove received for the sale of the cassettes.

   
   

6. Following the filming of "The Boyfriend" Lisa called Norgrove several times to see if he had more jobs for her since she needed to make some money. Finally, Norgrove told her that he might be able to sell some nude photos of her to a publishing house but could not guarantee their sale. He offered to take the pictures and if they sold split the proceeds with her. Lisa agreed and Norgrove decided his sailboat would provide a good background location for the photo sessions. Again he requested Munafo to come along and take the photographs while he, Norgrove, ran the sailboat. At the appointed time they sailed out into open water where Lisa stripped and assumed various poses while

   Munafo took pictures. These pictures were admitted into evidence as Exhibits.

   
   

7. Upon returning to shore, the three of them went to Munafo's house where Norgrove did another video of Lisa in the nude doing exercises. During the making of this video Munafo was downstairs and came up to the studio less than a minute before the video was completed. At this time Lisa was jumping on a small trampoline and Munafo suggested to Norgrove that he take some shots from the floor looking up. For the photos of Lisa taken in the sailboat, Munafo was again reimbursed only for the film and cost of developing the pictures he took. All told Eventure Media, Inc., paid Munafo less than $100.00 for the costs he incurred in shooting the pictures requested by Norgrove.

   
   

8. Munafo's testimony was uncontradicted and corroborated by Norgrove that all Munafo expected to receive from his participation were his expenses and the expectation that he would meet a model he could later employ to pose for a figure study. Munafo is a serious photographer who participates in many of the competitions sponsored by photography groups, both local and statewide. Exhibit 16 was admitted as a copy of a figure study Munafo entered in a photo contest and took second place.

   
   

9. In the interim the local police received information that Norgrove had been making pornographic videotapes and they alerted the United States Postal Inspectors. Their investigation revealed that Lisa Anderson was 17 years old at the time the videos and photographs were taken. 18 USC §2251, et seq., makes it a federal crime to use anyone under the age of 18 as a participant in a sexually explicit film or to transmit such film through the United States mail. After obtaining copies of the video cassettes and still photographs, the federal authorities obtained an indictment against Norgrove and Munafo and arrested them on March 4, 1985. The time of their arrest was the first inkling either had that Lisa Anderson was under the age of 18.

   
   

10. News of the arrest of three Pinellas County school teachers (Norgrove's wife was also arrested) charged with distributing sexually explicit films involving minors received wide dissemination from the local press and, by reason of the implications of "kiddie-porn," the events leading to the trial in federal court and the results of that trial were closely followed and reported by the press. Prior to the commencement of the trial, the Norgroves negotiated a plea of guilty of conspiracy and received a lenient sentence. Munafo went to trial and was acquitted of all charges by the jury (Exhibit 17).

    
    

11. Following the arrest of Munafo and the Norgroves, they were suspended by the School Board and hearings were requested.

    The Department of Education preferred charges to discipline their certificates based on the same allegations made by the School Board in their suspensions, and all cases were consolidated for hearing. Continuances were granted to await the outcome of the federal proceedings before conducting these administrative proceedings. Following the Norgroves negotiating a plea in the federal court trial, they withdrew their request for a Section 120.57(1), Florida Statutes, hearing and were dropped from these proceedings.

    
    

12. No evidence was presented that Respondent showed explicit sexual films or pictures to other teachers as is alleged in the charging document by the Superintendent. Nor was any testimony presented to show that Respondent's effectiveness in the school system was seriously reduced by the publicity associated with his arrest, trial and subsequent acquittal.

    
    

13. The primary, if not sole, basis for the disciplinary action proposed by the School Board and the Department of Education is whether the actions of Munafo in taking sexually explicit photographs of Lisa Anderson and another woman constitute immorality, misconduct in office, gross immorality or moral turpitude, or conduct which seriously reduces his effectiveness in the Pinellas County school system. The photographs which form the basis of these charges are similar to those published in adult magazines such as Penthouse, Hustler, Playboy, Cavalier, etc., which are transmitted through the United States mail and are displayed on the magazine racks of vendors of newspapers and magazines in drugstores, airports, bookstores, and newsstands open to the general public.

    
    

14. Petitioner produced two witnesses to testify to the immorality of one who would take explicit sexual photographs. Neither of these witnesses is a professional photographer although one teaches photography in a Pinellas County school. He did not believe a teacher should be held to a higher moral standard respecting activities totally unassociated with the school than is a member of the general public, but his personal moral convictions would preclude him from taking such pictures. Petitioner's other witness, John F. Joyce, Ed.D., opined that it was immoral for a school teacher to take such photographs as were taken by Respondent. Dr. Joyce, however, did not think it immoral for a teacher to look at pornographic photographs in Hustler magazine with prurient interests or even to be editor of such a magazine. How the work of an editor, in deciding which I pornographic photographs will sell the most magazines and still be within the letter of the law so as to avoid prosecution or a ban of the sales in a magazine, can be all right while the mechanic (or artist), who opens the shutter of the camera to expose the film and record the pornographic pose is immoral,

    completely eludes me. Accordingly, little weight is accorded this opinion.

    
    

15. Nor is the age of Lisa Anderson at the time these photographs were taken relevant to the charge of immorality. Respondent certainly thought he was taking a photograph of a woman over the age of 18; and such opinion was justified by the physical appearance of Lisa, by the model release form she signed (Exhibit 10) stating she was over 18, by her marital history, and by her reported living arrangements (with two men). The photographs taken on the sailboat (Exhibits 1-5) clearly fit the category of sexually explicit and are more pornographic than are the stills Munafo took during the videotaping of he cat fights. Accordingly, the outcome of these proceedings can be said to stand or fall on whether the taking of these photographs (Exhibits 1-5) constitutes immorality or gross immorality by a school teacher. In making this ultimate finding of fact it is significant that such photographs are protected by the First Amendment provided the model is over 18 that such photographs can be sent through the United States mail system without any violation of the law (again if the model is over 18) that the sole basis for the criminal charges preferred against this Respondent was the age of the model used that it would not be considered an offense involving moral turpitude or jeopardize any license they have if a lawyer, doctor, banker, or broker took such photographs that Munafo was acquitted of these criminal charges that in these criminal charges specific intent is not an element of the offense and that Munafo reasonably believed that Lisa Anderson was over 18 at the time these photographs were taken. Lisa Anderson had no apparent connection to the Pinellas County school system and none of the filming had any connection to a school or school system or in any way indicated the model was a minor. From these findings comes the ultimate finding of fact that taking these photographs of Lisa Anderson does not constitute immorality, gross immorality, or misconduct in office.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

The School Board's allegations against Respondent are governed by Section 231.36(4)(c), Florida Statutes, which provides in pertinent part:

. . . Any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time

during the school year; however, the charges against him must be based

on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

The authority of the Education Practices Commission to revoke or suspend the certificate of a teacher is governed by Section 231.28, Florida Statutes, which authorizes such disciplinary action provided that it can be shown that such teacher:

(c) Has been guilty of gross immorality or an act involving moral turpitude;

(f) Upon investigation, has been

found guilty of personal conduct which seriously reduces his effectiveness

as an employee of the school board.

Rule 6B-4.09, Florida Administrative Code, provides in pertinent part:

1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the

   education profession into public disgrace or disrespect and impair the individual's service in the community.

   
   

2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.01, F.A.C. and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-

106 F.A.C. which is so serious as to impair the individual's effectiveness in the school system.

(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties. which. according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing

of the act itself and not its prohibition by statute fixes the moral turpitude.

Of the grounds for disciplinary action above-cited Respondent is here charged with immorality and misconduct in office. Rule 6B-1.01, F.A.C., is not a disciplinary rule but establishes goals for the educator to try to achieve. This rule provides:

6B-1.01 Code of Ethics of the Education Profession in Florida

1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

   
   

2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

   
   

3. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

Unless violation of these rules is so serious as to impair the individual's effectiveness in the school system, the teacher may not be disciplined for such violation. No evidence other than newspaper clippings, was introduced to demonstrate any loss of effectiveness of Respondent in the school system. These newspaper reports occasionally hint that students may be involved, however, not one scintilla of evidence was presented that improper photographs were taken of any student or that any student ever posed for a photograph by Munafo without the parent present at the studio.

Here the burden is on Petitioner to prove the allegations made against Respondent. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

The quality of evidence required in this type of case is not definitively established. The case of South Florida Water Management District v. Caluwe, 359 So. 2d 390 (Fla. 4th DCA 1984) held that the preponderance of the evidence is the standard to apply in reviewing the sufficiency of evidence proffered to support a state agency's discharge of an employee. On the other hand, a higher standard of proof is required to revoke a license. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). Bowling held that "When the proceedings may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as substantial' as the consequences." Respondent's state certification is equivalent to a license and in Case 85-3538 the state is here seeking to revoke this license. The disciplinary action proposed by both the School Board and the state result from the same acts of Respondent. Dismissal by the School Board would, for all practical purposes, have nearly the same effect on Respondent as would revoking his certificate. Even if he retained his certificate after being dismissed by the Pinellas County School Board, it is most unlikely that he would be employed in another school district in Florida after that school district checked with the Pinellas County School Board to learn the reason for his dismissal. For this reason alone the standard of proof in both of these cases should be the same. Furthermore, a review of action taken in disciplinary cases involving teachers clearly indicates that teachers are held to a higher standard of conduct than any other profession. Cf. Adams v. State Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981). The higher the standard the easier to prove failure to adhere to the standard. This is another reason for concluding that the Petitioner must prove the charges by clear and convincing evidence.

The conclusions here reached are significantly affected by the acts complained of being totally and completely disassociated from any student or any school setting. The only nexus between the acts complained of and the education profession is that Respondent's primary employment is that of a school teacher and no evidence was presented that taking these pornographic photographs seriously impaired Respondent's effectiveness in the school system.

From the foregoing it is concluded that the acts of Respondent in taking the photographs which form the basis for these charges have not been shown, by clear and convincing evidence, to constitute immorality, misconduct in office, or to seriously reduce his effectiveness in the Pinellas County school system. It is

RECOMMENDED that all charges against Donald C. Munafo be dismissed, that he be reinstated to a position in good standing on the instructional staff of the Pinellas County school system, and reimbursed for all pay withheld for the period his pay was suspended.

ENTERED this 22nd day of January, 1986, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1986.

COPIES FURNISHED:

Usher L. Brown, Esq. Litchford & Christopher

One South Orange Avenue, Suite 1549 Orlando, Florida 32802

B. Edwin Johnson, Esq. School Board Attorney Post Office Box 6374

Clearwater, Florida 33518

Tom McCoun, Esq.

Louderback, McCoun & Helinger Bank of Florida Building

150 2nd Avenue North, Suite 1210 St. Petersburg, Florida 33701

Scott N. Rose, Ed.D. Superintendent of Schools Pinellas County

Post Office Box 6374 Clearwater, Florida 33518

Karen Barr Wilde, Executive Director Education Practices Commission Department of Education

Room 125, Knott Building Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

APPENDIX

Petitioner's Proposed Findings:

1. Accepted in Hearing Officer Finding No. 10.

   
   

2. Accepted in Hearing Officer Finding No. 5.

   
   

3. Disapproved. Not supported by the evidence. See Finding of Fact No. 15.

Respondent's Proposed Findings:

1. Accepted in Hearing Officer Findings 1, 2.

   
   

2. Accepted in Hearing Officer Finding 2.

   
   

3. Accepted in Hearing Officer Finding 3.

   
   

4. Accepted. Not deemed essential.

   
   

5. Accepted in Hearing Officer Finding 3.

   
   

6. Accepted in Hearing Officer Findings 3, 4.

   
   

7. Accepted in Hearing Officer Finding 5.

8. Accepted insofar as included in Hearing Officer Finding 5.

   
   

9. Accepted insofar as included in Hearing Officer Finding 6.

   
   

10. Accepted insofar as included in Hearing Officer Finding 8.

    
    

11. Accepted insofar as included in Hearing Officer Finding 8.

    
    

12. Accepted.

    
    

13. Accepted. Not deemed necessary to conclusions reached.

    
    

14. Accepted in Hearing Officer Finding 12.

    
    

15. Accepted in Hearing Officer Finding 10.

    
    

16. Accepted in Hearing Officer Finding 15.

    
    

17. Accepted in Hearing Officer Finding 12.

    
    

18. Accepted in Hearing Officer Finding 14.

Docket for Case No: 85-000834

Orders for Case No: 85-000834