STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3253

)

FREDERICK LEMIESZ, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 14, 1996, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin

Assistant School Board Attorney Post Office Box 2942

Largo, Florida 33779-2942

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides 2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issue in this case is whether the School Board of Pinellas County should dismiss the Respondent on charges of alleged misconduct in office and sexual harassment.

PRELIMINARY STATEMENT

By letter dated June 12, 1996, the Pinellas County School Superintendent advised the Respondent that he was being suspended

without pay, effective June 3, 1996, pending the School Board’s action on the Superintendent’s recommendation that the Respondent be dismissed for alleged violation of the School Board Sexual Harassment Policy 6Gx52x5.29 and 6G-52-5.31(1)(o) and (v). The Respondent requested a formal administrative proceeding, and the matter was referred to the Division of Administrative Hearings (DOAH) on July 12, 1996. Once at DOAH, the case was given DOAH Case No. 96-3253 and was scheduled for final hearing on

November 14-15, 1996. The parties filed a Prehearing Stipulation on November 4, 1996.

At final hearing, the Petitioner called nine witnesses and had Petitioner’s Exhibits 1 through 5 admitted in evidence. The Respondent testified in his own behalf.

At the conclusion of the evidence, the Petitioner ordered the preparation of a transcript of the final hearing. The parties initially were given ten days from the filing of the transcript in which to file proposed recommended orders but later agreed to fix January 10, 1997, as the deadline for filing proposed recommended orders. (The transcript was filed on December 4, 1996.)

FINDINGS OF FACT

1. The Respondent, Frederick Lemiesz, was employed by the Pinellas County School District as a chef instructor at Pinellas Technical Education Center in St. Petersburg (PTEC-St. Pete) from 1978 until his suspension without pay on June 12, 1996. In that

   time, he has been disciplined only once—on April 28, 1995, he received a letter of reprimand for threatening, pushing and using profane and abusive language toward another staff member.

2. During the 1995-1996 school year, the Respondent taught a Gibbs High School student named Amanda Beasely, who was in the culinary arts program at PTEC-St. Pete. Amanda had been identified as having a special learning disability (SLD) was receiving SLD services both at Gibbs High, where she was taking her academic classes, and at PTEC-St. Pete, where she was taking vocational classes.

3. Most of the 1995-1996 school year passed without incident of any kind. During a culinary arts class in May, 1996, the Respondent engaged Amanda in conversation regarding her intentions after her graduation from high school in June, 1996. When she told him that she had no plans, the Respondent asked her if she ever had thought of a career in modeling. She replied that she had not. He encouraged her to consider it. She agreed, and the Respondent explained to her that it would be necessary to have a portfolio of photographs to get started. He offered to make arrangements for a portfolio. Again, she agreed. The Respondent told Amanda to follow him, and he led her to the photography room of Terry Allison, a Commercial Photography Instructor at PTEC-St. Pete. The Respondent introduced Amanda to Allison and told Allison that Amanda needed a portfolio to get start her career as a model. Allison explained to them that

   initially she would need a “composite sheet,” not a “portfolio.” (A “composite sheet” consisted of a number of black and white photographs from the neck up.) He told them that the cost of a composite sheet would be $25. The Respondent agreed to the price, and Allison made an appointment for 7:15 the next morning. The Respondent told Amanda not to be concerned about her culinary arts class scheduled for the same time because the Respondent would mark her as being present.

4. At some point, the Respondent offered to act as Amanda’s manager and explained to her that a manager usually received ten percent of the money a model made. Amanda told her that ten percent seemed reasonable to her. The Respondent believed that he had a verbal contract with Amanda to be her manager and that the contract would serve to compensate him for his expenses.

5. That evening, Amanda reported to her parents what the Respondent had told her and what he had arranged for her the next morning. Her parents did not object to the idea but had some concerns. Apparently, Amanda’s parents inquired about it at Gibbs High, and somehow Dorothy Zeason, a Varying Exceptionalities Specialist at Gibbs High learned about it. Zeason and notified Sharon Lane, Amanda’s Varying Exceptionalities Specialist at PTEC-St. Pete. Zeason requested that Lane look into the situation.

6. When Lane saw Amanda at PTEC-St. Pete the next morning all dressed up and carrying a change of clothes, it reminded her

   of her conversation with Zeason, and she asked Amanda about it. When Amanda told her that she was on the way to the photo shoot, Lane asked to accompany Amanda to her culinary arts class, where they met the Respondent. The question of payment was raised, and the Respondent assured them that he was going to pay for the composite sheet.

7. Still not sure of the situation, Lane accompanied Amanda to meet Allison at the photography room. There, Allison told Lane what was planned. When Lane told Allison that Amanda’s mother had some concerns, Allison asked if Amanda was a high school student. When told that she was, Allison expressed surprise and said that, in that case, written parental permission was required. At that point, Amanda returned to her culinary arts class, and no photographs ever were taken.

8. The Respondent telephoned Amanda at her home on two occasions in May, 1996. The first of these may have been the evening before the aborted photo shoot. During this first conversation, the Respondent spoke to Amanda about Amanda’s modeling career and about their agreement that the Respondent would act as her manager. The Respondent could give no good school-related reason for placing this call. (He said he called to verify personal information provided by Amanda for school purposes, but evidently saw no reason to do so earlier in the school year.)

9. The Respondent also spoke to Amanda privately in his office at the culinary arts school at PTEC-St. Pete. On one occasion, the Respondent showed Amanda several pictures of a former girl friend who had died twenty years ago. The Respondent told Amanda that she reminded him of the deceased girl friend and that, if he was showing her any “extra liking,” it was because of this.

10. In either the same or another conversation in his office in May, 1996, the Respondent asked Amanda if she believed in reincarnation and then told her that he believed the spirit of his former girl friend was inside Amanda. This kind of talk made Amanda uncomfortable.

11. During either the same or another conversation in his office in May, 1996, the Respondent offered Amanda a spoon ring he had purchased in the PTEC-St. Pete jewelry workshop for about

    $5 and said he wanted Amanda to take it as a gift from him. Amanda tried several times to decline, saying that she did not feel right about accepting it, but the Respondent was insistent. He suggested that Amanda have it sized, if necessary, or exchange it for something she liked better. To placate the Respondent, Amanda accepted the spoon ring. She brought it to the jewelry workshop for sizing but never returned to pick it up.

12. On another occasion during culinary arts class in May, 1996, the Respondent called Amanda into his office and told her that he wanted to give her money as a gift for her upcoming

    graduation and birthday. Once again, Amanda tried several times to decline, saying that she did not feel right about accepting it, and the Respondent again was insistent. However, this time the Respondent finally resigned himself to Amanda’s repeated refusals, telling her that he guessed he would just have to give the money to someone else.

13. On another occasion during culinary arts class in May, 1996, Amanda and a friend thought they saw the Respondent winking at Amanda in a manner of flirting.

14. During one of the Respondent’s conversations with Amanda in May, 1996, he asked for directions to her home and asked her to describe the house. The Respondent could give no good school-related reason for why he needed this information.

15. The Respondent was intoxicated when he telephoned Amanda at her home the second time in May, 1996. (He claims not to remember anything about this telephone call due to his intoxication from a combination of alcohol and prescription drugs.) The Respondent first addressed Amanda by the wrong name. Then he introduced himself first as “Bo.” When she did not recognize the name (or voice), he told her he was her “teacher, Mr. Lemiesz.” During this conversation, the Respondent told Amanda that he thought she was beautiful, that he loved looking into her beautiful brown eyes, and that he loved her dimples and smile. He also told her that he believed the two of them were spiritually connected and were going to be friends for life. It

    was a Saturday, and the Respondent asked Amanda what she was doing the next day, Sunday. He told her that he was going out on his sailboat. She took it as an invitation to go with him, and she told him she was going to church in the morning and would be busy all the rest of the day.

16. This second telephone conversation made Amanda uncomfortable. When her parents returned home, Amanda told them about it. Amanda’s parents became concerned for her safety and reported the series of incidents to her school. Amanda declined to return to school at PTEC-St. Pete for the few days remaining before the end of the school year.

17. Action taken by the School Board culminated in the June 12, 1996, letter suspending the Respondent without pay and recommending his dismissal. The letter and its grounds were reported in the St. Petersburg Times.

18. As a result of the Respondent’s conduct in May, 1996, his effectiveness in the school system has been impaired to some degree. Amanda’s parents would not want the Respondent teaching their daughter or any other female student, and school administrators are apprehensive about putting the Respondent back in the classroom. But their reactions are based in part on assumptions that the Respondent would have continued, or worsened, his behavior towards Amanda had he not been stopped and that the Respondent has not learned his lesson. It was not proven either that the Respondent would have continued, or

worsened, his behavior towards Amanda had he not been stopped or that the Respondent has not learned his lesson. Meanwhile, although the Respondent’s effectiveness has been impaired to some degree, it was not proven that he could not still be an effective chef instructor for the school system at PTEC-St. Pete, especially in view of his long service without incident prior to May, 1996.

CONCLUSIONS OF LAW

19. Section 231.36(4)(c), Fla. Stat. (Supp. 1996), authorizes school boards to suspend or dismiss instructional staff on continuing contract based on charges of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. In this case, the School Board seeks to dismiss the Respondent on charges of misconduct in office.

1. For purposes of the suspension or dismissal of instructional personnel, F.A.C. Rule 6B-4.009 defines “misconduct in office” as a violation of the Code of Ethics of the Education Profession (F.A.C. Rule 6B-1.001) or the Principles of Professional Conduct for the Education Profession in Florida (F.A.C. Rule 6B-1.006), which is so serious as to impair the individual’s effectiveness in the school system.

2. In this case, the School Board did not specifically allege a violation of either F.A.C. Rule 6B-1.001 or F.A.C. Rule 6B-1.006. Instead, the School Board alleged a violation of

   School Board Policy 6Gx52x5.29 and contended that it constituted “misconduct in office.”

3. School Board Policy 6Gx52x5.29 constitutes the School Board’s “Guidelines to Prevent Sexual Harassment.” Paragraph (1) of the policy prohibits sexual harassment, and paragraph (2)(a) defines it as “any inappropriate sexual comment or any sexual behavior from an adult toward a student.” Paragraph (2)(b)6 includes among behaviors considered to be sexual harassment: “creating a hostile, offensive or intimidating environment based on or related to gender that has the purpose or effect of interfering with an individual’s work performance.”

4. The School Board’s Policy 6G-52-5.31(1)(o) and (v), which is a part of the School Board’s Disciplinary Guidelines for Employees, establishes a penalty range of “reprimand-dismissal” for “inappropriate relationship with a student” and of “caution- dismissal” for “misconduct in office.” However, those guidelines apply to all employees, whether or not instructional personnel and whether or not on continuing contract. They should not be construed to authorize suspension or dismissal of instructional staff on continuing contract except in accordance with Section 231.36(4)(c), Fla. Stat. (Supp. 1996), and F.A.C. Rule 6B-4.009.

5. Although the School Board did not specifically allege a violation of either F.A.C. Rule 6B-1.001 or F.A.C. Rule 6B-1.006, the School Board’s position seems to be that the alleged

   violations of its Rule 6Gx52x5.29 constitute violations of the requirements of F.A.C. Rule 6B-1.006 i that an educator:

   1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

      * * *

      1. Shall not harass or discriminate against any student on the basis of . . . sex . . . and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

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

6. It is concluded that, taken as a whole, the actions of the Respondent harassed Amanda, in violation of F.A.C. Rule 6B- 1.006(g). It also is concluded that the Respondent exploited his teacher-student relationship with her by attempting to enter into a contract with her to manage her modeling career in return for ten percent of the money she earned, in violation of F.A.C. Rule 6B-1.006(h). Finally, it is concluded that these violations have impaired the Respondent’s effectiveness in the school system to some degree.

7. However, although the Respondent’s effectiveness has been impaired to some degree, it was not proven that he could not still be an effective chef instructor for the school system at PTEC-St. Pete, especially in view of his long service without incident prior to May, 1996. While the School Board understandably was quick to take action to protect Amanda from

the possibility that the Respondent’s conduct would continue, or worsen, it was not proven that the Respondent’s conduct would have continued, or worsened, and it was not proven that the Respondent will not heed the lessons he has learned from the consequences of his conduct and refrain from repeating it with Amanda or any other student. It is believed that the Respondent’s suspension without pay is sufficient punishment and that the Respondent should be reinstated at this time, without back pay, and with the understanding that any repetition of the kind of conduct that resulted in this case will result in his dismissal.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board of Pinellas County enter a final order upholding the Respondent’s suspension without pay but reinstating him at this time, without back pay.

RECOMMENDED this 6th day of February, 1997, at Tallahassee, Florida.

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.

ENDNOTE

1 F.A.C. Rule 6B-1.001 sets out an aspirational Code of Ethics, which is not easily susceptible of application as a disciplinary standard. For example, paragraph (2) of the rule states that, since the educator’s primary concern is for the student and for the development of the student’s potential, “[t]he educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.” Paragraph (3) of the rule states that, being aware of the importance of maintaining respect and confidence, “the educator strives to achieve and sustain the highest degree of ethical conduct.”

COPIES FURNISHED:

Keith B. Martin

Assistant School Board Attorney Post Office Box 2942

Largo, Florida 33779-2942

Mark Herdman, Esquire Herdman & Sakellarides 2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Dr. J. Howard Hinesley, Superintendent Pinellas County Schools

Post Office Box 2942 Largo, Florida 33779-2942

Frank T. Brogan Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

i F.A.C. Rule 6B-1.001 sets out an aspirational Code of Ethics, which is not easily susceptible of application as a disciplinary standard. For example, paragraph (2) of the rule states that, since the educator’s primary concern is for the student and for the development of the student’s potential, “[t]he educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.” Paragraph (3) of the rule states that, being aware of the importance of maintaining respect and confidence, “the educator strives to achieve and sustain the highest degree of ethical conduct.”

Docket for Case No: 96-003253

Orders for Case No: 96-003253