On May 21, 2008, an administrative hearing in this case was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Laurie A. Dart, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
The issue in the case is whether the Pinellas County School Board (Petitioner) has just cause for terminating the employment of Gerald A. DiPanfilo (Respondent).
By letter dated January 25, 2007, the Petitioner notified the Respondent that the Petitioner intended to terminate the Respondent's employment.1 The Respondent challenged the termination and filed a request for hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.
At the hearing, the Petitioner presented the testimony of four witnesses and had Exhibits numbered 1 through 7 admitted into evidence. The Respondent testified on his own behalf.
A Transcript of the hearing was filed on June 18, 2007.
Both parties filed Proposed Recommended Orders.
At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract.
The Respondent has worked as a Pinellas County teacher for approximately 27 years, serving as an art teacher at Seminole High School for approximately one-half of his career with the Petitioner.
On July 11, 2007, the Respondent went to "Grand Central," an apparently "gay bar" located in downtown St. Petersburg, Florida.
The Respondent testified at the hearing that he had been at the lounge with friends. After drinking excessively, he decided to go home and asked the bartender to call for a cab to transport him to his condominium. As he waited for the cab to arrive, he sat at the bar.
J.G., a male who had just turned 17 years old on June 23, 2007, and who was enrolled in the Pinellas County School System, was also in the lounge as the same time as the Respondent.
The Respondent testified that he had limited conversation with J.G. while in the tavern.
There is no evidence that the Respondent knew that J.G. was enrolled in the Pinellas County School System.
The Respondent testified that, when the cab arrived, he got into the cab and that J.G. "forced" himself into the cab with the Respondent.
He testified that he exited the cab at a Publix grocery store about one and a half blocks from his residence, that he apparently walked alone to his condominium, and that, when he entered the ground-floor garage to obtain cigarettes from his car, he discovered J.G. waiting.
The Respondent's testimony failed to indicate at what point J.G. exited the cab, why the Respondent would have exited
the cab at Publix, or how J.G. would have known where the Respondent's condo was located.
The Respondent testified that J.G. asked for a drink of water and the Respondent, despite asserting that he "was a little nervous," admitted the stranger into his residence.
The Respondent testified that, after entering the residence, J.G. began "pulling his shirt up." The Respondent also testified as follows:
I'm not sure whether he was taking his pants off or not. But at the time I made a gesture of some sort, and I said Whoa. And he said, May I borrow your cell phone or may I borrow your phone. And he took my phone, and he went out into the hallway, which I started to get suspicious at that point of why did he need to use--talk out in the hall. So I went out there immediately.
The Respondent testified that he re-entered his condo and noticed his car keys were missing. He testified that he called the cell phone and J.G. answered. The Respondent testified that he then called the police and reported his car as stolen.
The Respondent testified that there was never any discussion with J.G. about obtaining drugs. The Respondent denied any discussion with J.G. about having sex or paying for sexual activity. The Respondent denied that J.G. made any statement about age.
The Respondent's testimony as to the events of the evening lacked sufficient clarity to be reliable and are not credited.
J.G. testified that he entered the "Grand Central" to get a glass of water. J.G. testified that he was not gay, but acknowledged being aware that "Grand Central" was apparently widely-known to have gay customers "because it's full of gay people in there."
J.G. testified that he interacted with the Respondent with the intention of hustling him for money.
J.G. testified that the Respondent offered to buy him a drink, but that the bartender refused to serve alcohol to J.G., who did not have identification.
J.G. testified that the Respondent offered him a "ride home" and he accepted. J.G. testified that the two took the cab to the Respondent's condo and did not talk during the cab ride.
J.G. testified that, after arriving at the condo, the Respondent asked if J.G. could obtain drugs, and J.G. said he could; that J.G. and the Respondent then walked to a nearby Publix; and that the Respondent obtained money from the ATM.
J.G. testified that they returned to and entered the Respondent's condo and that the Respondent "approached him" with his pants down.
J.G. testified that he remained fully clothed while at the Respondent's residence, while the Respondent touched J.G.'s body "everywhere" including his genitals for a period of five to seven minutes.
J.G. testified that he told the Respondent at some point during the evening that he was 17 years old "because I wasn't feeling what was going on at the time."
While at the Respondent's residence, J.G. pretended to call the supposed resource (his cousin) to obtain drugs, after which J.G. left to obtain the drugs with the Respondent's cash, his car, and his cell phone.
J.G. testified that he had no intention of returning to the Respondent's residence.
As part of an investigation into the alleged auto theft, the Respondent was interviewed by a law enforcement officer and submitted a written statement to the police. In the written statement, the Respondent wrote that he "messed around briefly" with the person who had allegedly stolen the vehicle.
After reviewing the information, the matter was subsequently referred to a second law enforcement officer for the purpose of conducting an investigation into the alleged sexual activity with a minor.
According to the testimony of the officer investigating the sexual activity, the Respondent stated that he
and J.G. had been kissing in the cab and that, after arriving at the condo, the two had undressed and had rubbed each other's penises. The officer noted that the Respondent stated he might have given money to the minor, but was not sure. The Respondent indicated that he believed J.G. to have been of legal age.
At the hearing, the Respondent testified that he had no recollection of making the admissions of sexual activity between himself and J.G. to the police investigator and was unsure why he made the statements.
The officer also interviewed J.G. and testified that
J.G. stated that he had advised the Respondent of his age during the cab ride. The officer also testified that J.G. stated that the Respondent gave money to J.G. in exchange for sex and drugs and that, after returning to the Respondent's residence, the two had physical contact but that J.G. remained dressed during the contact.
J.G. has a substantial criminal arrest record, given his age, for various drug offenses as well as battery, burglary, and grand theft. He was charged with auto theft in connection with taking the Respondent's car.
J.G. acknowledged at the hearing that he had previously stated that he was willing to allege sexual activity with the Respondent in an attempt to avoid being charged with auto theft.
The greater weight of the evidence presented at the hearing established that the Respondent engaged in sexual activity with J.G. on July 11, 2007, or very early on the morning of the following day. This finding is specifically based upon the admissions made by the Respondent to the investigators; admissions that the Respondent continued to make over a period of several days as the investigation proceeded.
As a teacher, the Respondent has an obligation to ascertain the age of persons with whom he is involved. There is no credible evidence that the Respondent realistically considered whether or not J.G. was of legal age.
Students at Seminole High School became aware of publicity related to the events of July 11, 2007, and some students posted copies of newspaper articles on campus. Administrators were contacted by some parents who had various concerns.
The school principal and a district administrator testified that they believed the Respondent's effectiveness as a teacher had been impaired as a result of the events of July 11, 2007.
Prior to the date of these events, the Respondent had been convicted of a DUI offense, but the Petitioner had not yet taken any related disciplinary action. The employment of a
Pinellas County teacher would not be routinely terminated on the basis of the Respondent's DUI conviction.
While the allegations related to the events of July 11 were being investigated, the Petitioner reassigned the Respondent to work in the district warehouse, where he had numerous absences from work. The Respondent testified without contradiction as to his mental state of mind during this period to explain the absences. The evidence fails to establish that the Respondent's employment should be terminated solely on the basis of the absences.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).
The issue in this case is whether the Petitioner has just cause for termination of the Respondent's employment as a teacher. In relevant part, Section 1012.33, Florida Statutes (2007), provides as follows:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
The Petitioner has the burden of establishing the facts of the case by a preponderance of the evidence sufficient to warrant termination of the Respondent's employment. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The Petitioner has adopted disciplinary policies relevant to this proceeding.
School Board Policy 8.25(1)(a) provides for a penalty of dismissal for inappropriate sexual conduct, including but not limited to lewd and lascivious behavior, indecent exposure, solicitation of prostitution, sexual battery, possession or sale of pornography involving minors, or sexual relations with a student.
The evidence establishes that on or about July 11, 2007, the Respondent engaged in inappropriate sexual conduct with a minor who was enrolled with the Pinellas County School System on that date. The conduct warrants termination of the Respondent's employment as a teacher.
School Board Policy 8.25(1)(g) provides for a penalty ranging from reprimand to dismissal for driving under the influence of alcohol. The evidence fails to establish that the Respondent's DUI conviction warrants termination of employment.
School Board Policy 8.25(1)(o) provides for a penalty ranging from reprimand to dismissal for inappropriate relationship with a student. The evidence establishes that on or about July 11, 2007, the Respondent engaged in inappropriate sexual activity with a minor who was enrolled with the Pinellas County School System on that date. The conduct warrants termination of the Respondent's employment as a teacher.
School Board Policy 8.25(1)(r) provides for a penalty ranging from caution to dismissal for excessive absenteeism or tardiness. The evidence fails to establish that the Respondent's absenteeism while assigned to the district warehouse is sufficient to warrant termination of employment.
School Board Policy 8.25(1)(v) provides for a penalty ranging from caution to dismissal for "misconduct or misconduct in office." The referenced policy does not provide a definition of misconduct or misconduct in office. A definition of "misconduct in office" may be gleaned from Florida Administrative Code Rule 6B-4.009(3), which provides as follows:
6B-4.009 Criteria for Suspension and Dismissal.
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
* * *
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.
Florida Administrative Code Rule 6B-1.001 provides as follows:
6B-1.001 Code of Ethics of the Education Profession in Florida.
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.
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.
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.
Florida Administrative Code Rule 6B-1.006 provides as follows:
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
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.
Shall not unreasonably restrain a student from independent action in pursuit of learning.
Shall not unreasonably deny a student access to diverse points of view.
Shall not intentionally suppress or distort subject matter relevant to a student’s academic program.
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student’s legal rights.
Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.
Shall not exploit a relationship with a student for personal gain or advantage.
Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
Obligation to the public requires that the individual:
Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.
Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.
Shall not use institutional privileges for personal gain or advantage.
Shall accept no gratuity, gift, or favor that might influence professional judgment.
Shall offer no gratuity, gift, or favor to obtain special advantages.
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization.
Shall not interfere with a colleague’s exercise of political or civil rights and responsibilities.
Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
Shall not make malicious or intentionally false statements about a colleague.
Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.
Shall not misrepresent one’s own professional qualifications.
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one’s own or another’s application for a professional position.
Shall not withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment.
Shall provide upon the request of the certificated individual a written statement of specific reason for recommendations that lead to the denial of increments, significant changes in employment, or termination of employment.
Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules.
Shall self-report within forty-eight
(48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes.
Shall report to appropriate authorities any known allegation of a violation of the
Florida School Code or State Board of Education Rules as defined in
Section 231.28(1), Florida Statutes.
Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.
Shall comply with the conditions of an order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice.
Shall, as the supervising administrator, cooperate with the Education Practices Commission in monitoring the probation of a subordinate.
The evidence is insufficient to establish that the Respondent has committed "misconduct in office," as defined by Florida Administrative Code Rule 6B-4.009(3). The Petitioner may articulate a definition of "misconduct" separate from that set forth in the rule in application of School Board
Policy 8.25(1)(v).
At the hearing, the Respondent testified as to his life history and the circumstances that have led to this situation. He was married to a woman for 29 years and fathered a son who is now of adult age. The Respondent's marriage ended through divorce in 2005, after he acknowledged his homosexual orientation. He subsequently began living as an openly gay man.
The Respondent asserted that the process was very difficult, that he has used alcohol excessively, and that his decision-making has been poor.
Although it may serve to offer an explanation for recent events, the Respondent's sexual orientation is immaterial to this case. Had the facts of this case involved a heterosexual male teacher drunkenly engaging in sexual activity with a minor female, the recommendation would have been the same as follows.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Gerald A. DiPanfilo.
DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2008.
1/ The date of the letter was incorrect and apparently should have read January 25, 2008.
Laurie A. Dart, Esquire Pinellas County Schools
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith, Commissioner of Education Department of Education
Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board
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.
