The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent held Florida Educator Certificate 477777, covering Physical Education and Social Sciences. Respondent’s certificate is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed by the Palm Beach County School Board and assigned to a classroom at BRHS, where he taught psychology and history. In recent years, Respondent has taught advanced placement classes. The evidence established that Respondent is well-liked by students, parents, and faculty. The present principal of BRHS, who was not at the school during the 1985-86 or 2001-2002 school years, considers Respondent to be an asset to the school. FACTS PERTAINING TO K.P. AND B.K. Prior to the end of the 1985-86 school year, Respondent invited several female senior students to join him for dinner in celebration of their upcoming graduation. Respondent was 33 years old at that time. Each of these females was either 17 or 18-years-of-age. K.P. (now known as K.F.) was 17 and B.K. (now known as B.M.) was 18. K.P. and B.K. were invited to and attended the dinner and subsequent celebration. The dinner invitations were extended by Respondent, who was their teacher, during the school year. There was a conflict in the evidence as to when this dinner engagement occurred.2 That conflict is resolved by finding that the dinner engagement occurred at the Cork and Cleaver restaurant in Boca Raton prior to the graduation ceremonies for the class of 1986. At least four female seniors were invited to Respondent’s celebration. K.P., B.K., and two other female students attended the dinner. All four of the students consumed alcohol at the restaurant that was purchased by Respondent. Respondent knew that the drinking age was 21 and he knew that each of the girls was under that age. Respondent also consumed alcohol at the restaurant. Following the meal, K.P. and B.K. sat on a bench outside the restaurant and continued to drink alcoholic beverages with Respondent. After approximately five bottles of champagne and/or wine had been consumed, Respondent K.P. and B.K. went from the bench outside the restaurant to Respondent’s house. The three of them were alone in Respondent’s house for several hours. At Respondent’s house they drank four to five additional bottles of wine. The quantity of alcohol consumed by Respondent, B.K., and K.P. that evening impaired their judgment. By all accounts, K.P. was inebriated and incapable of consenting to the acts that followed. Both B.K. and K.P. were excellent students who had little or no experience with alcohol. During the 1985-86 school year, K.P. had been a member of BRHS’s varsity teams in basketball, volleyball, and softball. During that school year, B.K. had been a member of BRHS’s varsity tennis team. After K.P. became inebriated, Respondent and K.P. went to Respondent’s bedroom where Respondent had inappropriate sexual relations with her. There was a conflict in the evidence as to whether Respondent had sexual intercourse with K.P. K.P. testified, credibly, that Respondent had sexual intercourse with her and that she suffered bleeding and discomfort the following day. K.P. also testified, credibly, that she had been a virgin up until that evening. Respondent admitted that K.P. was with him in his darkened bedroom with little or no clothes on, but he denied having sexual intercourse with her. Respondent admitted that he fondled K.P.’s breasts and engaged in what he described as “heavy petting.” The undersigned finds Respondent’s denial that he had sexual intercourse with K.P. also to be credible. In view of conflicting, credible testimony and the absence of corroborating evidence to substantiate the fact of sexual intercourse as opposed to the fact that there was the opportunity for sexual intercourse, the undersigned is constrained to conclude that Petitioner did not prove by clear and convincing evidence that Respondent engaged in sexual intercourse with K.P. Petitioner established by clear and convincing evidence that K.P. did not consent to Respondent’s inappropriate sexual behavior because she was too intoxicated and too young to do so. Respondent knew or should have known that K.P. was incapable of consenting to his behavior. After Respondent and K.P. entered Respondent’s bedroom, B.K. left Respondent’s house and drove around the block in her car for approximately 20 minutes. Because she was concerned about K.P., B.K. returned to Respondent’s house. When she returned to Respondent’s house, B.K. looked for K.P. She stepped into the doorway of Respondent’s bedroom and saw Respondent and K.P. in bed together. K.P. was not fully clothed, and the clothes she had on were in disarray. K.P. told B.K. to come in and get in the bed with them. K.P. grabbed B.K.’s arm and pulled her toward the bed. B.K. entered the bedroom and briefly lay on the bed with Respondent and K.P. Shortly thereafter, B.K. got up and left Respondent’s bedroom. Because she was feeling dizzy, B.K. lay down on a mattress in another bedroom. There was a conflict in the evidence as to what next occurred. It is clear that K.P. either intentionally cut herself or accidentally opened a cut on her hand. Respondent testified that K.P. accidentally opened up a cut on her finger while in his bedroom and then went to the kitchen. K.P. testified that she went from Respondent’s bedroom to the kitchen and intentionally cut herself in reaction to what had happened with Respondent. How the cut occurred is not relevant. It is relevant that Respondent went in the kitchen and helped K.P. stop the bleeding. After leaving the kitchen area, Respondent observed B.K. lying on the mattress in the second bedroom. He lay down on the mattress with B.K. with his body touching hers. He tried to kiss B.K., but she resisted his efforts. Respondent engaged in inappropriate sexual behavior with B.K. by lying next to her with his body in contact with hers and trying to kiss her. Respondent was obviously attempting to sexually arouse B.K. When K.P. saw Respondent and B.K. together in the second bedroom, she yelled at B.K. that they needed to get out of Respondent’s house. B.K. and K.P. then exited Respondent’s house and they returned to their respective homes in B.K.’s car without further incident. The next day, Respondent contacted B.K. and K.P. separately and apologized to them for his conduct. Respondent also apologized to B.K. for his conduct with K.P. Respondent stated that he had been unable to resist their athletic bodies. Respondent gave each of these girls a pair of diamond earrings as a gift. K.P. and B.K. did not report these events to any authority figure until 1993.3 As a result of difficulties K.P. (then known as K.F.) was having with sex in her marriage, she and her husband underwent counseling. It was during a session she and her husband had with their therapist that she revealed the events of the evening in 1986. Her husband, a teacher, felt obliged to report the incident to the Palm Beach County School District, which he did without naming K.P. and B.K. as being the students involved. His wife became upset when she learned of the report. After further reflection, K.P. revealed to the Palm Beach County School District that she and B.K. were the students involved with Respondent on the evening in question. The Palm Beach School District investigated the allegations, but it did not report these allegations to Petitioner. Petitioner learned of these events during its investigation of the facts pertaining to K.S. FACTS PERTAINING TO L.E. L.E., a female, graduated from BRHS in 1986. Respondent met L.E. when she was a freshman at BRHS and he subsequently became attracted to her. During her senior year, Respondent offered tickets to a Miami Dolphins football game to L.E. and other students as a reward for helping him grade papers in the class they took from him. Before she graduated, Respondent told L.E. that after she graduated he wanted to take her to dinner. There was insufficient evidence to establish that Respondent engaged in an inappropriate relationship with L.E. before she graduated. After she graduated, Respondent treated L.E. to dinner,4 gave her a pair of diamond earrings, and told her he wanted to be more than friends. Later during the summer of 1986, Respondent and L.E. went to Marathon, Florida, together and also traveled to San Francisco, California, at Respondent’s expense. DISCIPLINE PERTAINING TO K.S. K.S., a female, attended BRHS for her freshman through her senior years. She graduated in 2003. Respondent was K.S.’s history teacher in her junior year and her psychology teacher her senior year. During the 2001-2002 school year, K.S. confided certain personal family matters to Respondent. Thereafter, Respondent engaged in inappropriate conduct toward K.S. On at least five occasions toward the end of the 2001-02 school year Respondent came to her place of employment (a Kmart) looking for her. On one occasion he left her a gift of a cheesecake and on another he left a bag of M & M candy as a gift. These visits upset and frightened K.S. At the beginning of the 2002-03 school year, Respondent physically hugged K.S. when he first saw her in his psychology class. On several occasions Respondent put his hands on K.S.’s shoulders and massaged them. On one occasion he rubbed her hair. This type physical contact continued even after K.S. told Respondent not to touch her. On one occasion Respondent referred to K.S. in front of her classmates as being his “baby.” Respondent’s conduct upset and embarrassed K.S. K.S. complained to Robert O’Leath, a dean of students at BRHS, about Respondent’s behavior. Following an investigation of these allegations, the School Board of Palm Beach County suspended Respondent’s employment without pay for a period of ten days and required him to attend diversity and sensitivity training. Respondent did not contest this discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further recommended that the final order permanently revoke Respondent’s educator certificate. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 25th day of February, 2005.
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: 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. 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. 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. 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. 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. 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. Respondent was arrested and charged with performing an unnatural and lascivious act with another male in a public place. 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. 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. 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. 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. 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. 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. 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. 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.
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. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in Finding of Fact 11. 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. Adopted in Findings of Fact 7, 9, but otherwise rejected as irrelevant and unnecessary. Rejected in Findings of Fact 6, 14. Adopted and Rejected in Findings of Fact 6, 14. Adopted and Rejected in Finding of Fact 5, and otherwise Rejected as irrelevant. 7-8 Adopted in Finding of Fact 12. 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. Adopted in Findings of Fact 7, 9. Adopted in Finding of Fact 10. 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. Rejected as unnecessary since Dr. Auxter's ultimate opinion is rejected. 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. Rejected as unnecessary since Dr. Vera's ultimate opinion is rejected. Adopted in Finding of Fact 13. Rejected in Finding of Fact 15. 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 =================================================================
The Issue The issue addressed in this proceeding is whether Respondent committed any acts which would subject him to termination of employment as an annual contract teacher of the School Board of Escambia County.
Findings Of Fact In 1988, Respondent, David Madison, received his degree in elementary education. In 1989, Mr. Madison worked as a third grade elementary school teacher at Montclair Elementary School in Escambia County, Florida. Later during the school year, Mr. Madison transferred to the fourth grade drop out prevention program at Montclair Elementary School. While at Montclair, Mr. Madison received excellent reviews of his teaching ability and received the superintendent's recommendation for renewal of his annual contract for the 1990- 91 school year. The school board followed the recommendation of the superintendent and renewed Mr. Madison's annual contract. The term of Mr. Madison's contract ran from August 20, 1990 through June 12, 1991. Mr. Madison's contract provided that a teacher could not be dismissed from his or her employment "except for just cause as provided in Section 231.36(1)(a), Florida Statutes." The contract also incorporated by reference the collective bargaining agreement which had been negotiated between the school board and the Escambia Education Association for 1990-1993 (the master contract). Portions of the master contract governed and in some cases restricted the type of conduct which could be recognized as subjecting a teacher to discipline, as well as, the procedure and type of discipline, including dismissal or termination, which might be imposed regardless of whether that discipline arose out of violations under the terms of a teacher's contract or had its basis in Chapter 231, Florida Statutes. The master contract provided in Article II, Section L as follows: L. The Board shall not discriminate against any member of the unit because of marital status, religion, race, sex, lifestyle, national origin, age or medical or physical handicap as a condition of employment or continued employment. The master contract also provided at Article V, Section E as follows: E. No action against a teacher shall be taken on the basis of a complaint by a parent, student, or other individual unless the matter is first reported to the teacher in writing by the principal within ten (10) days of the complaint. No records shall be kept concerning anonymous complaints. and at Article XXVI, Sections A and B: Disciplinary Action shall be defined as any action that includes: warning conference, verbal reprimand, written reprimand, suspension with pay, suspension without pay, and/or dismissal. Any disciplinary action shall be administered only by the appropriate immediate administrator. All disciplinary action shall be progressive, fair, and non- discriminatory. Disciplinary action which involves the more severe discipline of written reprimand, suspensions or dismissal shall be for proper cause. In August 1990, Mr. Madison was hired to teach second grade at the Helen Cairo Elementary School. Helen Cairo Elementary School was a new elementary school opening in Escambia County and had a student population of about 725 students for the 1990-91 school year. Mr. Madison was hired along with a group of teachers as additional staff for the school since student enrollment greatly exceeded that which was predicted for the opening of the school. The school year had been in session for approximately 3 to 4 weeks before Mr. Madison began teaching at Helen Cairo Elementary School. The students which were selected for Mr. Madison's second grade class came from other second grade classes which had already been in session. Mr. Madison's class consisted of approximately 23 or 24 students. The Petitioner met with the students and parents prior to beginning his teaching at Helen Cairo and established a rapport with approximately ten sets of parents out of an approximate 20 student class. November 20 was Mr. Madison's birthday. In 1990, Mr. Madison's birthday fell on Thursday, the middle of the work week. Mr. Madison would be 25 years old. Because Mr. Madison had to teach the day after his birthday, he elected not to celebrate his birthday on November 20 but would celebrate the following Friday evening since he did not have any teaching duties over the weekend. On the evening of November 21, 1990, Mr. Madison celebrated his birthday at Chan's and McGuire's, two of the local bars in Pensacola. Mr. Madison, in youthful exuberance, overindulged in alcoholic drink. To the best of Mr. Madison's recollection of his birthday celebration, which memory is very limited, he had at least 5 or 6 shooters during the evening of the 21st. Around 10:00 p.m., in a highly intoxicated state, although driving reasonably well, Mr. Madison left McGuire's and proceeded home. On the drive home, Mr. Madison had to urinate and stopped in the parking lot of a bar known as the Chimney. A few parking spaces away from where Mr. Madison parked were two undercover police officers in an unmarked car. The police officers were part of the Vice and Intelligence Division of the Pensacola Police Department. The police officers had stopped at the Chimney because it is an area allegedly known for illegal sexual transactions, mostly involving homosexual males. Mr. Madison exited his vehicle and made a beeline for the woods which are located close to the Chimney. He walked by the unmarked police car and around the corner of the Chimney's building on his way to the woods. Within a few seconds of Mr. Madison walking by the unmarked police car, Officer Paul Kelley exited the police car in order to follow Mr. Madison to see if he could catch him in some crime. The officer's egress from the car occurred well within Mr. Madison's hearing and Mr. Madison more than likely knew someone was following him through the parking lot and around the corner towards the woods. No other people were in the area and the area could not be seen from the more public areas of Chimney's surroundings. The police officer was dressed in plain clothes and judging from his appearance at the hearing would have fit the stereotypical image of a "pretty" male homosexual. Mr. Madison went into the woods, relieved himself, and came back out of the woods. As Mr. Madison left the woods he saw the police officer standing by himself watching him obviously waiting for Mr. Madison to exit the woods. Mr. Madison stopped about 10 feet away from the officer. The officer and Mr. Madison exchanged eye contact back and forth. During the exchange, Mr. Madison rubbed the outside front of his pants in the area of the genitals. The officer testified that such behavior is a common signal of interest among homosexuals and is part of the homosexual lifestyle and way of communicating with each other. The police officer continued to exchange looks with Mr. Madison. The police officer did not move away from Mr. Madison and allowed him to approach. Mr. Madison walked over to the police officer, and they exchanged greetings with each other. Clearly such behavior on the police officer's part was an invitation by the police officer to Mr. Madison to make further overtures. After all the police office was there in an attempt to entice such sexual propositions in order to determine if any crime, such as prostitution, would ensue. Mr. Madison again began rubbing the front of his pants in the area of his genitals while the officer stood watching. Mr. Madison then reached over and touched the officer's clothing in the area of his genitals. The officer took a step back, said no and Mr. Madison desisted in his advance. To the officer, Mr. Madison looked confused and surprised by the officer's response. Mr. Madison immediately left and returned to his vehicle to leave. The officer followed Mr. Madison back towards his vehicle and indicated to his partner, by pointing at Mr. Madison, that Mr. Madison should be arrested. Mr. Madison was subsequently arrested on a first degree misdemeanor charge of simple battery which is not, in and of itself, a crime involving moral turpitude. In that regard, none of the above facts support a finding that Mr. Madison is an immoral person or committed an immoral act. Indeed, the best that can be said about the above facts is that Mr. Madison attempted to interact socially with someone he reasonably believed was of the same persuasion. His behavior was common among the homosexual community as a means of communicating with another homosexual. It was the officer who had followed Mr. Madison and stood waiting for him when no one else was around. In this case, the officer's consent was non-verbally communicated to Mr. Madison by a police officer who was fully cognizant of the impact his own action or lack of action would have. Mr. Madison desisted from his advances as soon as the officer's consent was withdrawn. Mr. Madison's actions did not involve a battery, sexual battery, lewd and lascivious conduct or any other criminal activity. The incident involved no children, did not occur during working hours, and did not involve or have any relevance to Mr. Madison's ability to teach or otherwise utilize his teaching skills. Unfortunately, the battery arrest was picked up by the local newspaper, and some details from the police officer's report were published in the local newspaper. Articles involving the arrest incident ran at least 3 times in the local newspaper on December 1, 1990, January 17, 1991 and February 8, 1991. Mr. Madison, after taking approximately 9 days off, returned to teaching his second grade class. During the time he taught his students, he could discern no impact on the children and their progress in his class. Likewise, there was no impact on Mr. Madison's ability to teach his class. In fact, teaching was a release from the stress created by the publication and subsequent reaction of a few parents who did not have children in his class. On February 7, 1991, Mr. Madison pled no contest to the simple battery charge, received six months probation and paid a $150 fine. Adjudication was withheld. The probation was terminated after three months. Mr. Madison pled to the charges because he could not remember any of the incident the police officer claimed happened and could not admit or deny any of the allegations of the officer. However, Respondent's entry of a plea of no contest does not constitute proof of immorality, moral turpitude or lack of moral character when such characteristics are absent from the underlying facts of the charge to which he is pleading. Apparently, based on the articles in the newspaper, some of the parents at Helen Cairo School became aware of the incident involving Mr. Madison's arrest. The parents who reacted did not necessarily have students in Mr. Madison's class. Parental reaction was evenly divided among those who cared to react. Some parents were supportive, and others were not supportive. Intolerant, incorrect and prejudicial statements such as "we don't want those type of people teaching our children" and "homosexuals are child molesters," were communicated to the principal by these unsupportive parents. For the most part, the negative comments about Mr. Madison involved not the criminal charge, but the homosexual nature of the event. In essence, it was a reaction of total intolerance on those parents' part as to homosexuality. However, even with these intolerant parents, the evidence did not support a loss of parental support for the school save for one or two very vocal persons of morality who engaged in a campaign to have Mr. Madison terminated because they believed he was an immoral person and a potentially bad influence to children. These two parents kept things stirred up in the sense that the school board had to deal with the two parents. Neither parent had a child in Mr. Madison's class. Mr. Madison taught his second grade class until February 12, 1991, when he was suspended without pay from his teaching position. On March 25, 1991, Mr. Madison was terminated from his position as a school teacher. Before this incident, Mr. Madison had never received any disciplinary action during his time as a teacher in Escambia County. Mr. Madison's discipline was based solely on the notoriety of the case and not necessarily on the fact that a criminal charge had been filed resulting in a plea. The evidence did not demonstrate that the overall reputation of the school had been so diminished by Mr. Madison's conduct that it could no longer deliver an appropriate instructional program to the children at the elementary school. In fact, the evidence demonstrated that the school did deliver such instructional programs since the school students all scored within the average of the county. Similarly, other than some hearsay testimony about what a substitute told the principal, there is no credible evidence to suggest that Mr. Madison's ability to teach had been impaired or that the students in Mr. Madison's class had in any way had their academic potential affected. There was also no evidence that the students at Helen Cairo had lost respect for Mr. Madison or otherwise would refuse to submit to his authority. In fact, the better evidence in relation to student attitudes was that Mr. Madison's students were very concerned about his well being, cared a great deal about their teacher and wanted him to return. Finally, the evidence affirmatively demonstrated that Mr. Madison's ability to teach was not impaired by the events of November 21, 1990 or the subsequent agitation of a few parents. The evidence only showed that Mr. Madison felt embarrassed and down about what had happened. However, as a well adjusted person, he handled those feelings, went on with his life and performed his duties until prohibited from doing so by the school board. In short, none of the charges in the Petition for Dismissal have been supported by the evidence. Additionally, discipline based on a persons lifestyle is clearly prohibited by the master contract. Moreover, the Board failed to follow its own policy and contractual agreement regarding progressive disciplinary penalties. Mr. Madison, therefore, is entitled to reinstatement under the terms of his annual contract with back pay to February 12, 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is accordingly, RECOMMENDED: That the School Board of Bay County enter a Final Order reinstating Respondent with back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23 and 24 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 15 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the first sentence of paragraph 16 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate The facts contained in the last sentence of paragraph 17 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate The facts contained in the last sentence of paragraph 25 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was legal argument. The facts contained in the first sentence of paragraph 26 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 1, 2, 4, 9, 26, 27, 28, 29 and 30 of Respondents' Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of Respondents' Proposed Findings of Fact are subordinate. COPIES FURNISHED: Joseph L. Hammons, Esquire 17 W. Cervantes Street Pensacola, FL 32501 Mark S. Levine, Esquire 245 E. Virginia Street Tallahassee, FL 32301 Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Pete Payton Superintendent Escambia County School Board Post Office Box 1470 Pensacola, FL 32597
The Issue Whether Angel Villanueva (Respondent) imposed his personal religious views and views about gender identity on students during classroom and other instructional time, and, if so, should his employment with the Lee County School Board (Petitioner) be terminated as a result of his conduct.
Findings Of Fact Stipulated Facts Pursuant to the Joint Pre-hearing Stipulation, the following facts are admitted: Respondent imposed his personal religious beliefs and views regarding gender identity on students during classroom and other instructional time. Respondent made comments in the presence of students regarding the sexual preferences of individuals and professed that those that do not agree with him are wrong and would regret their lifestyle and suffer consequences later on in life. Respondent’s conduct unreasonably denied students access to diverse points of view, exposed students to unnecessary embarrassment and disparagement, and was unbecoming of a school district employee. Background The Board is responsible for hiring, terminating, and overseeing all employees in the school district. At all times material to this case, Respondent was employed by Petitioner as an JROTC instructor at East Lee County High School. Respondent has been employed by Petitioner since October 25, 2002. Respondent is an instructional employee and is governed by the collective bargaining agreement between the School Board and the Teachers Association of Lee County (TALC). Respondent is employed pursuant to a professional services contract. On or about May 13, 2016, a concerned parent notified Petitioner of a video posted on Instagram which shows Respondent making comments in class regarding the sexuality of Caitlyn Jenner, the former Olympic decathlon gold medalist who recently came out as transgender. M.G. recorded the video and is responsible for posting the same on Instagram. The video, which is in evidence, speaks for itself. As a result of the concerns expressed by the parent, Petitioner initiated an investigation regarding Respondent’s alleged conduct. As part of the investigation, Petitioner interviewed M.G., who is a transgender student who recently “came out” regarding his gender. M.G. testified that he came out as transgender in March of 2016 and during this time he was a student in Respondent’s JROTC class. M.G. stated that Respondent made some initial comments to him in March of 2016, which led him to inform his guidance counselor, who asked M.G. to write his concerns in a statement. M.G. explained in his written statement that the statements made by Respondent regarding gay rights, religion, and homosexuality made him feel that generally he “wasn’t human,” that he was being “pushed down,” and that he did not like the way Respondent’s statement made him feel. M.G. also explained that when Respondent became aware that he was going to come out as transgender, Respondent reacted by saying, “Oh, no, you can’t do that” and told him that he will always be a female. M.G. testified that in April when he first told the guidance counselor about Respondent’s comments, he did not want anything bad to happen to Respondent. However, that changed when, according to M.G., Respondent’s conduct caused M.G. to start having feelings of depression. Respondent admits that he wanted to persuade M.G. not to come out as transgender. Respondent also admits that he made comments in the presence of students regarding the sexual preference of individuals, and further that he told students in his class that individuals who do not agree with him are wrong, will regret their lifestyle, and will suffer consequences later on in life. Respondent testified that his concern for M.G. stems from his personal beliefs as a devout Christian, and that if M.G. had informed Respondent that he was bothered by his comments, then he would not have been as aggressive in stating his opinions to M.G. Respondent acknowledges that he overstepped his boundaries and “should have stayed in his own lane.” During the final hearing, Respondent expressed genuine feelings of concern about M.G.’s well-being.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order concluding that: Just cause does not exist to terminate Respondent’s employment: and Just cause does exist to impose against Respondent discipline other than termination of employment. DONE AND ENTERED this 9th day of January, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2017.
Findings Of Fact 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. 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. 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." 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." 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. 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. 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. 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. 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. 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). 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. 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. 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. 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. 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.
