STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2849

)

THOMAS GIORGIO, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on March 25, 1988 in Clearwater, Florida before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, to consider the dismissal of Thomas Giorgio (Respondent), a teacher, by the School Board of Pinellas County (Petitioner). The parties were represented as follows:

Petitioner: Bruce Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618

Respondent: Charleen C. Ramus, Esquire

Robert F. McKee, Esquire Post Office Box 75638 Tampa, Florida 33675-0638

At hearing, Petitioner called seven witnesses and introduced twelve exhibits. Respondent testified on his own behalf, called three additional witnesses, and introduced eight exhibits. The testimony of one of Petitioner's witnesses, Sharon Jackson, consisted of a proffer concerning her feelings, as a parent, if Respondent were allowed to teach her child. In addition, Respondent had four parents and three teachers present to testify about how they would feel if there children were taught by him. None of these additional witnesses were experts, and they were to be called solely to provide testimonials on behalf of Respondent. This case cannot be decided based upon the number of people who are called to offer personal opinions about how they would feel if Respondent were allowed to teach their children. Therefore, such testimony was not allowed, although both parties did proffer the testimony that would have been given.

On the day of the final hearing, Respondent filed a Motion For View seeking to have the Hearing Officer visit North Shore Park on the evening of March 25, 1988 to view the area in which the incident which lead to Respondent's dismissal occurred. The Motion was denied since the Recommended Order in this case must be based upon the evidence in the record, and there is no effective way for the Hearing Officer's impressions and visual assessment of the area to be made an objective part of this record. In addition, the filing of this Motion on the day of hearing was not timely.

The transcript of the hearing was filed on May 2, 1988, and the parties were thereafter allowed to file proposed recommended orders within ten days. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

The following findings of fact are based upon the evidence presented at hearing, the demeanor of witnesses, and stipulations of the parties:

1. Respondent was employed by Petitioner as a 4th and 5th grade teacher under continuing contract since June, 1980. During his employment, he was evaluated as a satisfactory teacher.

   
   

2. The parties stipulated that on May 19, 1987 at approximately 1:45 a.m., Respondent committed fellatio with another male adult. They further stipulated that Respondent does not claim that this was a single, isolated occurrence.

   
   

3. The incident on May 19, 1987 took place in North Shore Park, St. Petersburg, which is an area known to the local police as a place for homosexual activity.

   
   

4. North Shore Park is approximately 6 1/2 miles from the elementary school at which Respondent taught fourth grade. It is a public park extending from Sixth to Nineteenth Avenues, North, and bordered on the east by Tampa Bay and on the west by Shore Drive. The park has a public swimming pool, tennis courts, parking areas and a public beach.

   
   

5. On the morning of May 19, 1987, Respondent drove to the park, parked his car, and walked from Seventeenth Avenue, North, to Thirteenth Avenue, North, where he encountered the other male. Respondent believed they were alone. They walked to a bench on the public beach and engaged in fellatio.

   
   

6. Police Officer Thad Crisco, St. Petersburg Police Department, observed Respondent performing fellatio on the other male. Officer Crisco, who was patrolling the park on foot, was approximately twenty feet away from Respondent. He observed them with the use of an infra-red night scope, but he testified that the night scope was not required or necessary to observe the incident due to the moonlight and other available lighting. Crisco was behind a palm tree, but had a clear line of vision over a four foot high sea wall which separated him from Respondent and the other male. There was also a lit public parking area about

   100 feet from where Respondent was observed.

   
   

7. Respondent was arrested and charged with performing an unnatural and lascivious act with another male in a public place.

   
   

8. On or about May 27, 1987, Respondent was suspended with pay by Superintendent Scott Rose, who also recommended his dismissal by the School Board, effective June 25, 1987. The Superintendent's action and recommendation resulted from the incident on May 19, 1987. The School Board approved the Superintendent's recommendation for dismissal on June 25, 1987, and Respondent was informed of this action by letter dated July 21, 1987. Respondent timely sought this hearing on his dismissal.

   
   

9. On or about June 12, 1987, Respondent entered a plea of no contest to the criminal charges arising out of the incident at North Shore Park, and an Order Withholding Adjudication of Guilt and Placing Defendant On Probation was

   entered on June 12, 1987 in Case Number CTC 87-10343 MMANO, County Court for Pinellas County. Respondent was placed on six months probation, ordered to perform ten hours of community service and prohibited from entering any parks in Pinellas County. Respondent's probation was terminated early by Order entered on October 15, 1987 since he had satisfied all terms and conditions of his probation.

   
   

10. By letter dated October 26, 1987, the Commissioner of Education found there was no probable cause "at this time" to suspend or revoke Respondent's teaching certificate in connection with this incident.

    
    

11. Within the month following the incident in North Shore Park and his arrest, Respondent was the subject of one article in the St. Petersburg Times and three articles in the Tampa Tribune, Pinellas Edition. The parties stipulated that the St. Petersburg Times has a daily circulation of approximately 285,000 in Pinellas County, and the Pinellas Edition of the Tampa Tribune has a daily circulation of approximately 11,000.

    
    

12. Based upon the testimony of Robert Welch, Principal of Bay Point Elementary School, Nancy Zambito, Director of School Operations, and Superintendent Rose, all of whom were accepted as experts in education, it is found that Respondent's action on May 19, 1987, his arrest and plea of no contest, and his being placed on probation are inconsistent with a public school teacher's responsibility to set an example for the students he teaches, undermines the confidence, trust and respect which parents and students should have in a teacher, evidences extremely poor judgement for one in whose custody the educational welfare of fourth graders is placed, and can reasonably be expected to impair his effectiveness as a teacher and lead to serious discipline problems with students if he returns to the classroom. Respondent even expressed concern about the embarrassment his actions caused for the school district.

    
    

13. Through the testimony of Thomas Auxter, Ph.D., who was accepted as an expert in ethics, Hernan Vera, Ph.D., who was accepted as an expert in sociology, and Harry D. Krop, Ph.D., who was accepted as an expert in psychology, Respondent sought to establish that the incident on May 19, 1987 was a private, consensual act, without demonstrable or intentional injury or infliction of harm upon others outside the act. Dr. Auxter expressed the opinion that the act was not immoral since Respondent had a reasonable belief that no one else was present, and the act was not demonstrably or intentionally harmful. According to Dr. Auxter, one has to consider the time and place where an act occurs, as well as a person's intentions, in determining if it is an immoral act; circumstances are very important. Thus, an act performed at 1:45

    a.m. may be a private sex act, while the same act at 1:45 p.m. in the same place may be clearly intentional, observable and offensive to others, and therefore be immoral. Dr. Vera expressed the opinion that Respondent's behavior did not constitute public behavior since the circumstances were private. Again, the time of the morning when the incident occurred was critical to Dr. Vera's opinion. Dr. Krop testified that school children would not necessarily be negatively affected by the incident, and that Respondent is capable of mitigating the effect of the incident on his ability to teach.

    
    

14. The testimony of Drs. Auxter and Vera concerning the private nature of the act of fellatio in this case is specifically rejected based upon the testimony of Officer Crisco and Sergeant Earl J. Rutland, St. Petersburg Police Department. Crisco was only twenty feet away from Respondent at the time of the incident, with a clear line of sight. Respondent and the other male were

    clearly visible in the moonlight without having to use the night scope. The act occurred in a public park, and on a public beach. According to Sergeant Rutland, North Shore Park has a great deal of public activity at all hours of the day and night, and much of that activity results in complaints to the police. The very fact that Respondent went to this area at 1:45 in the morning looking for someone to engage in homosexual activity with, confirms the fact that members of the public frequent this area at all hours. Thus, he had no reasonable expectation that they would be alone on this beach, even at 1:45 a.m. Respondent did commit a sexual act, fellatio, in public on May 19, 1987. Dr.

    Vera testified that cultural norms require that sexual acts be performed in private, and Dr. Auxter acknowledged that just one violation of said norm can bring a person into disgrace and disrespect.

    
    

15. The testimony of Dr. Krop concerning the effect of this incident on children and parents, and on Respondent's ability to teach, is outweighed by the testimony of Welch, Zambito, and Superintendent Rose. Krop was not accepted as an expert in education, and demonstrated little experience working with public school children and their parents when compared with the vast experience of Petitioner's experts.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. The Petition has the burden of proof in these proceedings. Although the case of Ferris v. Turlington, 510 So.2d 292 (Fla. 1987) dealt with license disciplinary action, rather than dismissal from employment, in determining that the elevated standard of clear and convincing evidence applied in such cases, the Supreme Court stated:

    
    

    In a case where proceedings implicate the loss of livelihood, an elevated standard is necessary to protect the rights and interests of the accused. 510 So.2d at 295.

    
    

    In this case, the loss of livelihood is not just implicated, it will actually occur if the Petitioner sustains its burden. Therefore, the elevated standard applied in Ferris will also be applied in this case.

    
    

18. Petitioner has dismissed Respondent as a result of the incident on May 19, 1987 under Section 231.36(4)(c), Florida Statutes, which states in pertinent part:

    
    

    any member of the instructional staff who is under continuing contract may

    be suspended or dismissed at anytime 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 only grounds for dismissal applicable to the facts in this case arise from charges based upon Respondent's alleged immorality. See Rule 6B-4.009(1), (3),

    (4) and (6), Florida Administrative Code, defining incompetency, misconduct in office, gross insubordination, and willful neglect of duty as inapplicable to the facts in this case. Respondent was not convicted of a crime involving moral turpitude, but rather entered a plea of no contest and adjudication was withheld.

    
    

19. Rule 6B-4.009(2), Florida Administrative Code, defines "immorality"

    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.

    
    

20. Engaging in a sexual act, fellatio, with another male in a public

    place is clearly inconsistent with standards of public conscience and good morals. Respondent's own expert, Dr. Vera, testified that cultural norms dictate that sexual acts must be performed in private. Dr. Auxter, another expert called by Respondent, acknowledged that just one act could bring a person into public disgrace and disrespect. Their characterization of the incident in this case as a private, consensual sex act has been rejected, as set forth in the findings of fact, above. The act was visible to Officer Crisco and the beach was a public area, even at 1:45 a.m.

    
    

21. Thus, Petitioner has established by clear and convincing evidence that Respondent violated an accepted cultural norm by performing fellatio in public, and even this one act can reasonably be expected to result in public disgrace and disrespect, as well as an impairment in his teaching abilities, as testified to by Petitioner's experts in educational matters and as found above. The evidence shows that Respondent's conduct on May 19, 1987 constitutes "immorality" as defined in Rule 6B- 4.009(2), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order dismissing Respondent from employment.

DONE AND ENTERED this 19th day of May, 1988, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988.

APPENDIX

(DOAH Case No. 87-2849)

Rulings on Petitioner's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1.

5. Adopted in Findings of Fact 2, 3. 6-9 Adopted in Findings of Fact 6, 14.

1. Adopted in Finding of Fact 7.

2. Adopted in Finding of Fact 9.

3. Adopted in Finding of Fact 11.

4. Adopted in Findings of Fact 3, 14.

14-16 Rejected as cumulative and unnecessary, but considered as the basis for accepting the witness as an expert in education.

17-20 Adopted in Finding of Fact 12.

21 Rejected as irrelevant and also hearsay.

Rulings of Respondent's Proposed Findings of Fact: 1-2 Adopted in Findings of Fact 1, 4, 8.

1. Adopted in Findings of Fact 7, 9, but otherwise rejected as irrelevant and unnecessary.

2. Rejected in Findings of Fact 6, 14.

3. Adopted and Rejected in Findings of Fact 6, 14.

4. Adopted and Rejected in Finding of Fact 5, and otherwise Rejected as irrelevant.

7-8 Adopted in Finding of Fact 12.

1. Rejected as irrelevant. There was evidence that Respondent initially considered resigning and then Petitioner acted expeditiously to take disciplinary action. These events may have affected the level of community reaction.

2. Adopted in Findings of Fact 7, 9.

3. Adopted in Finding of Fact 10.

4. Adopted in Finding of Fact 13.

13-14 Rejected as unnecessary and as not based upon competent substantial evidence. While the ethical analysis set forth by Dr. Auxter represents one expert's opinion,

it was not shown that his opinion, albeit an expert opinion, competently and substantially represents 2500 years of study and thought.

1. Rejected as unnecessary since Dr. Auxter's ultimate opinion is rejected.

2. Rejected as Finding of Fact 14.

17-30 Adopted in part and Rejected in part in 13 and 14; otherwise Rejected as irrelevant and unnecessary.

1. Rejected as unnecessary since Dr. Vera's ultimate opinion is rejected.

2. Adopted in Finding of Fact 13.

3. Rejected in Finding of Fact 15.

4. Rejected as unnecessary since Dr. Krop's ultimate opinion is rejected.

35-38 Rejected in Findings of Fact 12, 15.

39 Rejected as argument on the evidence rather than a Finding of Fact.

COPIES FURNISHED:

Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688

Clearwater, Florida 33518-4688

Bruce P. Taylor, Esquire School Board Attorney Post Office Box 4688

Clearwater, Florida 33518-4688

Robert F. McKee, Esquire Charleen C. Ramus, Esquire KELLY & McKEE, P.A.

Post Office Box 75638 Tampa, Florida 33605-0618

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA,

Petitioner,

vs. CASE NO 87-2849

THOMAS GIORGIO,

Respondent.

/

FINAL ORDER

WHEREAS, the Superintendent of Schools for Pinellas County, by means of a letter dated May 27, 1987, and subsequently amended on June 21, 1987, recommended to the School Board of Pinellas County, Florida, that a teacher, one THOMAS GIORGIO, be suspended without pay and dismissed effective June 25, 1987, and

WHEREAS, said letter was duly delivered to THOMAS GIORGIO, and

WHEREAS, said THOMAS GIORGlO requested an Administrative Hearing pursuant to 120.57, Fla,Stat, and

WHEREAS, the School Board of Pinellas County proceeded to suspend THOMAS GIORGIO without pay effective June 25, 1987, and requested the Division of Administrative Hearings to conduct an Administrative Hearing of the disputed issues in this case, and

WHEREAS, an Administrative Hearing was held on March 25, 1988, before the Honorable Donald N. Conn, Hearing Officer, and

WHEREAS, the Honorable Donald N. Conn has submitted a Recommended Order dated May 19, 1988, and

WHEREAS, the School Hoard of Pinellas County has carefully reviewed said Recommended Order, and

WHEREAS, the School Board of Pinellas County has carefully reviewed the Exceptions to the Hearing Officer s Recommended Order, Findings of Fact, Rulings on Respondent's Proposed Findings of Fact, Rulings on Evidentiary and Procedural Rulings, Conclusions of Law, and ultimate recommendation filed on behalf of THOMAS GIORGIO, it is therefore

ORDERED AND ADJUDGED, that the Hearing Officer's Findings of Fact numbered

1 through 15 are hereby accepted, adopted, and incorporated by reference herein. It is further

ORDERED AND ADJUDGED, that the Hearing Officer`s Conclusions of Law and Recommendation are likewise accepted, adopted, and incorporated by reference herein, with the exception that, based on the cases of South Fla. Water Management Dist. v. Caluwe, 459 So.2d 390 (Fla. 4th Dist.Ct.App. 1984) and Ferris v. Turlington, 510 So2d 292 (Fla 1987), it is concluded that the Petitioner in a teacher dismissal hearing need only prove its case by a preponderance of the evidence. It is further

ORDERED AND ADJUDGED, that the previously described Exceptions to the Hearing Officer's Recommended Order filed on behalf of THOMAS GIORGIO are hereby rejected; and it is further

ORDERED AND ADJUDGED, that THOMAS GIORGIO be dismissed from his status as a teacher, and his suspension without pay from that position effective June 27, 1987, is hereby confirmed, and the continuing contract between THOMAS GIORGIO and the SCHOOL BOARD OF PINELLAS COUNTY is hereby revoked.

THOMAS GIORGIO is hereby notified that he has the right to appeal this Order by filing his notice of intent to do so with the Second District Court of Appeal, in Lakeland, Florida, or with Bruce P. Tayor, School Board Attorney, within thirty days of the date of this Order.

DATED: this 22nd day of June, 1988.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By:

Chairman

Attest: Ex-officio Secretary

Docket for Case No: 87-002849

Orders for Case No: 87-002849