02-001667 Pinellas County School Board vs. Michael L. Grayer Status: Closed Recommended Order on Thursday, February 13, 2003.

Summary: School Board properly terminated Respondent`s annual contract as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1667

)

MICHAEL L. GRAYER, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Largo

and Tarpon Springs, Florida, on October 21 - 24, 2002.

APPEARANCES

For Petitioner: Jacqueline Spoto Bircher

School Board Pinellas County

301 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue is whether Petitioner terminated Respondent's

annual contract as a teacher for just cause.

PRELIMINARY STATEMENT

By charging lette r dated March 14, 2002, Petitioner's

superintendent informed Respondent that he was suspended with

pay effective February 25, 2002, until the School Board meeting

on April 16, 2002. Petitioner's superintendent stated that he

intended to recommend to the S chool Board that it terminate

Respondent effective April 17, 2002. The letter states that the

grounds for these actions are that Respondent was arrested on

January 31, 2002, and charged with sexual battery on a 17 - year -

old female student and inappropriate conduct with other

students. The letter charges that Respondent has thus violated

School Board Policy 8.25(1)(a), (c), (i), (m), and (v) and the

Code of Ethics and the Principles of Professional Conduct of the

Education Profession. The letter concludes that these

violations constitute just cause for dismissal under Section

231.36, Florida Statutes.

By amended charging letter dated August 2, 2002, Petitioner

added and clarified charges. This letter adds to the charges

stated in the March 14 letter by st ating that Respondent is

guilty of:

1. Kissing a female student and touching

her in the vaginal region.

2. Kissing a second female student on at

least one occasion.

3. Making inappropriate comments to female

students about their appearance.

4. Making i nappropriate comments of a

sexual nature to or in front of students.

5. Allowing students who were not scheduled

to be in [Respondent's] class to come into

and spend time in [Respondent's] classroom

for no valid school purpose.

6. Encouraging students to leave campus

during the school day for the purpose of

getting food, including bringing Mr. Grayer

food.

7. Us[ing] non - curriculum related materials

in class, such as the showing of videos.

8. Lack[ing] appropriate record - keeping.

9. Lack[ing] appropria te classroom

instruction.

The August 2 letter states that these actions constitute

just cause, pursuant to Section 231.26, Florida Statutes, for

the termination of Respondent because these actions:

1. Violate School Board policies 8.24 and

8.25(1)(a), ( c), (i), (k), (l), (m), (o),

(t), (v), and (x).

2. Violate the Code of Ethics and

Principles of Professional Conduct of the

Education Profession in Florida, including

but not limited to 6B - 1.001(2) and (3) and

6B - 1.006(3)(a), (g), and (h).

3. Constitute misconduct in office, willful

neglect of duty and immorality.

At the hearing, Petitioner withdrew the charges in

paragraphs 6, 8, and 9 of the August 2 letter. Petitioner

called 28 witnesses and offered into evidence 23 exhibits:

Petitioner Exhibits 1 - 23. Respondent called nine witnesses and

offered into evidence one exhibit: Respondent Exhibit 1. The

parties jointly offered 13 exhibits: Joint Exhibits 1 - 13. All

exhibits were admitted.

The court reporter filed the transcript on November 25,

2002 . The parties filed their proposed recommended orders on

January 8, 2003.

FINDINGS OF FACT

1. Petitioner hired Respondent, an inexperienced teacher

who had recently graduated from college, and assigned him to

teach and serve as an assistant basketball co ach at Dixie

Hollins High School during the 2000 - 01 school year. For the

2001 - 02 school year, Petitioner reassigned Respondent to Tarpon

Springs High School, where Respondent assumed the duties of head

basketball coach. During both school years, Responde nt was on

annual contract.

2. Initially, an administrator at Tarpon Springs High

School informed Respondent that he would teach American history

and economics, which are the subjects that he had taught at

Dixie Hollins High School. When Respondent repor ted for duty at

Tarpon Springs High School, administrators did not give him a

schedule until a couple of days before classes started.

3. At that time, Respondent learned that, during the first

quarter, he was to teach counseling and personal fitness,

ne ither of which he had taught before. He also learned that,

the following quarter, he was to teach Freshman Experience,

which was a relatively new course, and personal fitness. In the

third quarter, he was due to teach earth - space science in place

of pers onal fitness.

4. At least for the first two quarters, Respondent was

assigned students in the GOALS program, which is designed for

students who have not made substantial academic progress due to

social problems. In this program, the students take only four

classes per quarter. Each class runs one hour and forty - five

minutes, five days weekly.

5. Respondent had difficulties assembling materials for

the peer counseling course. Teachers who had previously taught

the course were not available. Extensive renovations at the

school made it difficult to locate materials for this and other

courses. Respondent finally visited a teacher at another school

and obtained books, guides, and tests for peer counseling.

These materials advised Respondent to help the students learn to

settle their disputes peaceably without adult intervention and

suggested that the teacher supplement the book with relevant

movies dealing with peer pressures, conflict, and social issues.

6. Respondent experienced similar difficulties w ith the

personal fitness course, for which he had books, but no teacher

edition or worksheets. However, Respondent's background in

athletics presumably prepared him to teach this course.

7. Although Respondent voiced similar complaints about

Freshman E xperience, he had a quarter to try to obtain

materials. Also, no one else at the school had any experience

with this course, which the District had abruptly required the

high schools to teach. Similar to peer counseling, Freshman

Experience is a motivati onal course that also covers personal

and academic issues, as revealed by the titles of the required

books, Chicken Soup for the Soul and Ten Steps for How To Manage

Time .

8. The seven charges listed in the Preliminary Statement

fall into four groups. Ch arges 1 and 2 are the most serious;

they allege that Respondent kissed two students and touched the

vaginal area of one of these students. Charges 3 and 4 are also

sexual in nature; they allege that Respondent made inappropriate

comments to female student s about their appearance and

inappropriate sexual comments to or in front of students.

Charges 5 and 6 pertain to classroom management; they allege

that Respondent allowed students to come to his classroom for no

legitimate purpose and encouraged students to leave campus to

get him food. Charges 7 - 9 pertain to curriculum,

administration, and instruction; they allege that Respondent

used noncurriculum - related materials (such as videos), lacked

appropriate recordkeeping, and lacked appropriate classroom

ins truction.

9. Petitioner wisely dropped Charges 6, 8, and 9. No

evidence in the record supported these allegations prior to

Petitioner's announcement that it was not pursuing these

allegations.

10. Charges 5 and 7 require little more analysis. The

evid ence supports neither of these allegations.

11. Concerning Charge 5, unenrolled students visiting

Respondent's classroom included basketball players. While

Respondent remained the basketball coach, these players briefly

visited the room from time to time to discuss something about

the basketball program. Petitioner did not show the extent of

these visits or that they were illegitimate.

12. Unenrolled students who were not participating in the

basketball program infrequently visited Respondent's classroo m.

Although the principal testified that one of his assistant

principals told him that there was a problem with unenrolled

students visiting Respondent's classroom, he added that she

rejected his offer to talk to Respondent and said she would

handle it. After that conversation between the principal and

assistant principal, the principal said the problem was

eliminated. Interestingly, though, neither the assistant

principal nor anyone else ever talked to Respondent about this

issue, which appears not to h ave loomed large at the time.

13. Concerning Charge 7, Petitioner never proved the

rating of any of the films mentioned during the hearing as shown

in Petitioner's classroom. Films mentioned during the hearing

as shown in one of Respondent's classes in clude With Honors ,

Rudy (shown repeatedly), Finding Forrestor , Saving Private Ryan ,

The Hurricane , [The Mask of] Zorro , and assorted basketball

videotapes.

14. The record reflects disagreement among Petitioner's

administrators as to the policy concerning the application of

the District policy regarding R - rated films. According to the

representative of the Office of Professional Standards, The

Patriot (apparently an R - rated film) "could" violate this

policy, but, according to the principal, who is now han dling

workforce development in the District office, The Patriot

"probably" would not be a problem.

15. Even if The Patriot were a problem, as an R - rated

film, it would be so only if Respondent had not obtained

permission slips from parents to show this an d perhaps other R -

rated films. Respondent testified that he did so.

Notwithstanding the testimony of one student to the contrary,

Petitioner never proved that Respondent failed to obtain

permission slips.

16. The issue of the relationship, if any, betwe en the

films and the courses fails because Petitioner failed to prove

the contents of the films or to prove adequately the prescribed

content of the courses, so as to permit a finding that the films

were irrelevant to the courses. The broad outlines of pe er

counseling in particular, at least as established in this

record, would appear to accommodate a vast array of films. A

sufficient number of students testified in sufficient detail to

a broad array of bookwork, class discussion, and other

instructional and assessment methods in both peer counseling and

Freshman Counseling to overcome whatever proof that Petitioner

offered in support of Charge 7.

17. The crux of this case lies in the charges involving

sexual improprieties, as alleged in Charges 1 - 4. The quality of

proof was considerably different between Charges 1 and 2, on the

one hand, and Charges 3 and 4, on the other hand. Analyzing

Charges 3 and 4 first may help explain the findings as to

Charges 1 and 2.

18. Concerning Charges 3 and 4, Petitioner proved that

Respondent made numerous inappropriate comments to female

students, of a sexual nature, that understandably made the

students feel uncomfortable. Respondent directed three of these

comments and one behavior to T. R., a junior.

19. While walk ing around the track during the personal

fitness class that T. R. was taking from Respondent, he asked

her what she thought of a 26 - year - old dating an 18 - year - old.

T. R. was either 18 years old or Respondent implied that the

dating would await her 18th bi rthday; either way, T. R.

reasonably believed that Respondent meant her. Although

actually 29 or 30 years old at the time, Respondent typically

told his students that he was only 26 years old, so T. R.

reasonably believed that Respondent meant him.

20. T. R. was so uncomfortable with this question that she

mentioned it to a female teacher at the school, Cheryl Marks -

Satinoff. Thoughtfully considering the matter, Ms. Marks -

Satinoff found that the question was "odd," but not "extremely

inappropriate" and "on the fence."

21. Ms. Marks - Satinoff's characterization of the question,

in isolation, is fair. In the context of other comments to

T. R. and other female students during the relatively short

period of two school quarters -- little else, if any, of whic h was

Ms. Marks - Satinoff was then aware -- the comment acquires its

proper characterization.

22. To T. R., Respondent also said, "If I were still in

high school, I'd be climbing in your window at night." T. R.

was "shocked" by this comment, but her mothe r or stepmother,

when told by T. R. about the comment -- again, in isolation -- did

not attach much importance to it.

23. On another occasion, when a female student asked why

T. R.'s grade was better than D. P.'s grade, Respondent replied,

"T. R. and I have a n agreement."

24. While taking Respondent for personal fitness, T. R.

found Respondent staring at her repeatedly. Accordingly, T. R.

switched from stretch pants to baggies.

25. T. R.'s testimony is credible. She spoke with adults

about two of the comme nts roughly at the time that they were

made. Also, T. R. bore no grudge against Respondent. She said

that she did not think twice about the dating comment, although

she obviously gave it enough thought to raise it with Ms. Marks -

Satinoff. T. R. freely a dmitted that Respondent made the

comment about crawling into her window in a joking manner. She

discredited D. P., who is the alleged victim of the most serious

sexual incident, discussed below, as a person who always lies,

convincingly. T. R. added that D. P. told her once that

Respondent "tried" to kiss her and put his hand up her skirt and

did not understand why D. P. confided in her initially. T. R.

testified that she never heard Respondent do or say anything

inappropriate in the personal fitness cla ss that she took with

D. P. T. R. testified that Respondent made her and her friends

leave if they disturbed his class the few times they got out of

their assigned class to visit his office and watch movies.

T. R. described another female student, B. H., who testified to

several inappropriate comments made by Respondent, as someone

who "likes to stir the pot."

26. To A. T., an 18 - year - old who graduated from Tarpon

Springs High School in June 2002, Respondent alluded to the size

of her breasts, in front o f the class, and used his hands to

frame them. Although done in connection with a warning that

A. T. was violating the school dress code due to the revealing

nature of her shirt, Respondent delivered this warning in a

sexual manner that was obviously unne cessary for the purpose of

reminding the student to conform to the dress code.

27. A. T. testified that she liked Respondent as a

teacher, but he made her uncomfortable, and he should be more a

teacher than a friend. Like T. R., A. T. seemed not to bea r any

negative feelings toward Respondent, but instead merely seemed

to be describing an insensitive incident as it happened.

28. To N. S., a junior at the time, Respondent said, upon

learning that she had surgically implanted rods in her back,

that he wa nted to have sex with her. N. S. testified that she

was not bothered by the remark. N. S.'s testimony is credited.

She was friendly toward Respondent and had long dated

Respondent's teacher assistant.

29. To A. M., Respondent said that she looked prett y and

could get any guy she wanted. A. M.'s testimony is credited.

She did not have much interaction with Respondent and was not

part of any group interested in causing him trouble. She seems

simply to have truthfully reported an ill - advised comment tha t

Respondent made to her, although she did not describe her

reaction to the comment.

30. To L. D., Respondent said that he had a bracelet of

hers that she had lent him and that, whenever he looked at it,

it reminded him of her. L. D. felt uncomfortable a bout this

remark. L. D. also testified that Respondent sometimes tried to

get the boys to treat the girls with respect, and her testimony

is credited.

31. Other witnesses, especially D. P. and B. H., described

other comments, but their credibility is poo r, and their

testimony cannot be credited. The demeanor of two witnesses

favorable to Respondent revealed something bordering on

exasperation with him, even as they testified that he never said

anything sexually inappropriate in class. The demeanor of ea ch

witness was consistent with someone who believed that Respondent

was only joking around in class, when making sexually charged

comments, and had suffered more than enough due to the

consequences of lies told by two female students, as described

below.

3 2. In isolation, the comment about having sex with a

student with orthopedic rods in her back is sexually offensive,

as is the sexual comment and gesture framing a female student's

breasts is sexually offensive. The comments about the agreement

between T . R. and Respondent, the bracelet reminding Respondent

of L. D., and A. M. being able to sufficiently pretty to get any

boy are not sexually offensive, in isolation, but, even in

isolation, betray a tendency by Respondent to regard certain of

his female st udents as females more than students.

33. With the exception of the comment to A. M., all of the

comments, gesture, and behavior, in the aggregate during a

relatively short period of time, depict a transformation by

Respondent of the relationship betwee n a teacher and several of

his students to a more ambiguous relationship, at times

resembling the relationship that might exist between these girls

and the boys with whom they attended high school. Nearly all of

these incidents embarrassed the female stud ents; all of them,

except perhaps A. M., reasonably should have been embarrassed by

them. Several of these incidents suggest that Respondent

regarded these female students as available for him in some role

other than that of student -- for instance, as fema les with whom

to flirt. Petitioner has proved that Respondent exploited these

female students, with the possible exception of A. M., for

personal gain.

34. This characterization of these comments, gesture, and

behavior is confirmed by Respondent's implau sible assertion that

all of these students, except N. S., are lying. If confident

that the comments, gesture, and behavior were innocuous or at

least not improper, Respondent could have gained credibility by

admitting these incidents and explaining their innocence.

35. With one exception, Petitioner has not proved that

Respondent sexually harassed or discriminated against his female

students or these students in particular. The record does not

suggest any quid pro quo in the sexual incidents, although th e

agreement with T. R. approaches the type of proof required. Nor

does the record suggest that the sexual commentary, gesturing,

or behavior were so pervasive as to create a hostile

environment. Two students, N. S., A. M., and L. D., were each

the subjec t of a single comment. One student, A. T., was the

subject of a single incident, which consisted of a comment and

gesture. On this record, Petitioner failed to prove that

Respondent's treatment of these students rose to harassment or

discrimination of th em or of his female students in general.

36. However, Respondent's treatment of T. R. rose to

harassment and sexual discrimination because he made three

sexually inappropriate comments and engaged in one sexually

inappropriate behavior that caused her to alter her mode of

dress. Respondent implicitly asked her to think about dating

him -- now or later -- with the comment about a 26 - year - old dating

an 18 - year - old. Respondent implicitly identified the

possibility of their having sex with the comment about clim bing

in her window. Respondent alluded to the possibility of sex

between T. R., a student, and himself, a teacher with the power

of the grade, with the comment about her grade resulting from an

agreement. And Respondent leered at T. R. sufficiently to ca use

her to change her workout clothes.

37. In partial mitigation of the sexual comments,

gesture, and behavior, but not the harassment or discrimination,

no one seems to have provided Respondent with any timely

feedback on this manner of interacting with certain female

students. The only reports to adults seem to have been of

isolated comments. In addition to the two reports noted above,

a male student reported inappropriate comments, midway through

the first quarter, to the teacher who was head of GOAL S.

Although the teacher did not describe the inappropriate

comments, she said that she talked only to the two female

students involved and evidently decided that the matter was not

sufficiently important to discuss with Respondent or the

administration.

38. As noted above, Ms. Marks - Satinoff learned from T. R.

of a borderline inappropriate comment. Sometime later, in

January, she spoke briefly with Respondent and advised him to

watch inappropriate comments. This marks the only feedback, and

it was too late to alter the course of events.

39. However, for the same reason that this lack of

feedback does not mitigate at all the harassment and

discrimination involving T. R., the value of this mitigation is

largely undermined by the fact that the knowledge of the need to

refrain from improper personal references to students is not

granted only to the most experienced teachers or administrators.

Perhaps Respondent was not fully aware that his comments,

gesture, and behavior were sexually charged and did not realize

the effects of these comments, gesture, and behavior on his

students, as some teachers may not be fully aware of their

sarcasm and its effect on their students. However, Respondent,

as a teacher, remains responsible for determining the effect of

h is interaction upon his students and ultimately must bear the

consequences if he fails to identify the problem.

40. D. P. is the complainant in Charge 1. She was born in

September 1984 and was a senior during the 2001 - 02 school year.

Respondent taught her peer counseling during the first quarter

and personal fitness during the second quarter.

41. D. P. testified that on Monday, January 14, 2002, she

approached Respondent to ask if she could exempt a final exam.

She testified that he said to return af ter lunch. When she did,

she testified that they met in his office where he kissed her

and moved his hand up her leg until he digitally penetrated her

vagina.

42. D. P.'s testimony is unbelievable for several reasons.

First, two different students testi fied that they heard her say

that she would get Respondent into trouble. One of the students

testified that he heard her say this immediately after an

argument D. P. had with Respondent over absences and tardies.

D. P. was upset with Respondent because h er numerous absences

and tardies prevented him from exempting her from the final

examination in his class. D. P. did not tell anyone of the

alleged incident until immediately after she found that she

could not obtain an exam exemption from Respondent.

43. Second, D. P.'s testimony is unusually inconsistent

with other statements that she has given. Some inconsistencies

are not fatal to credibility, but the number and importance of

inconsistencies in her testimony and statements preclude a

finding of credi bility. Numerous material discrepancies exist

between D. P.'s testimony at the hearing and her testimony in a

prehearing deposition. Other discrepancies exist between her

testimony at the hearing and earlier statements given to law -

enforcement officers o r made to others. These discrepancies

include differences of two hours as to when during the day the

incident occurred and one day as to which day on which it

occurred. D. P.'s implausible implication is often that the

persons taking down her version of events made a mistake.

44. Third, D. P.'s testimony is improbable. First,

Respondent was aware of the investigation into his dealings with

female students by the morning of January 14. The investigation

was already underway by the end of the prior week. For

instance, D. P. had given her first statement on January 11. It

is unlikely that Respondent would engage in such egregious

sexual abuse of a student while he knew that he was under

investigation. Second, Respondent's teacher assistant testified

tha t he was in the office during the entire time that the

incident supposedly would have taken place, and he never saw

D. P.

45. Fourth, D. P. has a poor reputation for honesty among

her peers who know her well. D. P. testified that she told

several persons about the sexual abuse, but they all denied such

conversations. At one point during her testimony, she stated

that everyone at school had his or her own opinion concerning

rumors as to with which student Respondent was accused of having

an improper relat ionship. As she testified, D. P. seemed

clearly to have relished the attention that she had gained by

making the charge.

46. S. Y. is the complainant in Charge 2. S. Y. was born

in April 1987 and was a sophomore during the 2001 - 02 school

year. She wa s a student of Respondent. She testified that

Respondent taught her Freshman Experience during the third

quarter, although she was not a freshman and Respondent did not

teach very long into the third quarter before he was terminated,

as described below.

47. S. Y. testified that Respondent kissed her one day

while they were alone in his office. A number of reasons exist

that undermine the credibility of this assertion.

48. First, S. Y.'s testimony is also unusually

inconsistent with other statements tha t she has given. At

different times, she has attested that the kiss occurred between

Thanksgiving and Christmas, before Thanksgiving, and in January.

49. Second, S. Y.'s timing in reporting the kiss is

suspect. First, three times she told investigator s nothing

about a kiss. Second, she reported the kiss only after she knew

that D. P. had accused Respondent of sexual improprieties.

S. Y. admitted that emotions were running "sky high" at the

time. Unlike D. P., who did not like Respondent, S. Y. liked

him, at one time even having a crush on him. S. Y. appeared

capable of jealousy regarding her feelings about Respondent, as

evidenced by the following facts.

50. Third, S. Y. reported the kiss immediately after he

referred her to the office for abruptly interrupting his class

and loudly demanding that he tell her who else he was "fucking."

Although she denied knowledge that Respondent was having sexual

intercourse with any students, including herself, S. Y. admitted

that the referral prompted her to rep ort the kiss to an

investigator.

51. Fourth, S. Y. engaged in embellishment concerning her

relationship with Respondent, as would be consistent with a

fantasy attachment to him. Although S. Y. implausibly denied

it, she told Ms. Marks - Satinoff that she h ad been to

Respondent's home, which was in a poor section of Clearwater.

Respondent's home is not in a poor section of Clearwater. S. Y.

also has said that Respondent proposed that she and another girl

perform in a porn movie that he would make. The rea lity is

either that she proposed it to Respondent, who told her never to

suggest such a thing again, or that a former boyfriend proposed

the porn movie -- without Respondent's involvement.

52. For the reasons listed above, it is impossible to

credit the tes timony of D. P. or S. Y. that Respondent sexually

abused them. Although the presence of multiple accusations of

this type may sometimes be indicative of their reliability, they

are more likely due to Respondent's sexual banter and flirtation

and repeated failure to maintain appropriate boundaries between

the professional and the personal. Both D. P. and S. Y. were

doubtlessly aware of Respondent's tendencies in this regard,

and, from this sexually charged atmosphere, which Respondent

himself had helped cr eate, they struck back at Respondent by

making sexual allegations. D. P. chose to strike out at

Respondent for not granting her an exemption to which she was

not entitled, and S. Y. chose to strike out at Respondent for

referring her to the office and not meeting the unrealistic

expectations that she and her infatuation on Respondent had

generated.

53. Shortly after D. P. and possibly S. Y.'s charges

emerged, law enforcement officers arrested Respondent, who

remained in jail for nine days. In June 2002 , the state

attorney's office dropped the charges, although D. P. testified

at the hearing that she intended to sue Respondent and

Petitioner. Petitioner then terminated Respondent's employment

six weeks prior to the end of the term of his annual contract .

54. A proper penalty must reflect the nature of the

offense and its impact on the students. Some students who were

the subject of improper comments, gesture, and behavior denied

embarrassment. Of those admitting to embarrassment, it does not

seem to h ave been traumatizing or even especially painful. Not

entirely without reason, some of the students implied that

Respondent had already suffered enough, having been fired and

served nine days in jail on accusations that were not

established on this record . Also, the mitigation discussed

above, as to the failure of authority figures to provide

Respondent with timely feedback as to the improper comments,

gesture, and behavior, but not harassment and discrimination,

plays a role in setting the penalty.

55. Petitioner's representative from the Office of

Professional Standards testified that Charges 3 and 4 would

suffice to warrant dismissal, depending on the frequency of the

improper comments. The improper comments warrant, at most, an

unpaid suspension of three days, but the harassment and

discrimination involving T. R. warrant a more serious penalty.

In the absence of the other sexually inappropriate comments and

gesture, the harassment and discrimination involving T. R.

probably would warrant a long sus pension.

56. However, two facts warrant termination. First, the

harassment and discrimination involving T. R. are accompanied by

the sexually inappropriate comments and gesture involving the

other students. Second, still not grasping the requirements of

a professional's proper relationship toward his students,

Respondent has continued, implausibly, to deny all of the

sexually inappropriate comments, except for an admission of a

vague version of the comment about the orthopedic rod in N. S.'s

back. By branding these students liars when he himself is

lying, Respondent makes the case for Petitioner that termination

is the proper remedy.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120 .57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

58. Petitioner must prove the material allegations by a

preponderance of the evidence. Dilleo v. School Boar d of Dade

County , 569 So. 2d 883 (Fla. 3d DCA 1990).

59. Section 230.33(7)(e) authorizes the superintendent to

suspend a teacher until the next meeting of the school board.

Section 230.23(5)(f) authorizes the school board to suspend or

dismiss a teacher, pursuant to Chapter 231, Florida Statutes.

Section 231.36(1)(a) provides:

All [instructional - staff] contracts, except

continuing contracts as specified in

subsection (4), shall contain provisions for

dismissal during the term of the contract

only for j ust 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 mora l turpitude.

60. Rules 6B - 4.009(2) and (3) define "misconduct in

office" and "immorality," but not "willful neglect of duty."

The rules state:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good mo rals. 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.

(3) Misconduct in office is defined as a

violation of the Co de of Ethics of the

Education Profession as adopted in Rule

6B - 1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006, FAC., which is so serious as to

impair the individual's effectivenes s in the

school system.

61. Petitioner failed to prove that Respondent is guilty

of immorality. His conduct was not "sufficiently notorious to

bring the individual concerned or the education profession into

public disgrace or disrespect and impair the i ndividual's

service in the community." Likewise, Petitioner has failed to

prove that Respondent is guilty of willful neglect of duty. The

record discloses that he largely attended to his instructional

duties and his inappropriate comments, gesture, and b ehavior did

not constitute a willful abandonment of such duties.

62. However, the issue is closer as to misconduct in

office. Rule 6B - 1.006(3) provides that, with respect to

student, a teacher:

(a) Shall make reasonable effort to protect

the student fro m conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety

(g) Shall not harass or discriminate

against any student on the basis of . . .

sex . . . and shall make reasonable effort

to assure that each student is p rotected

from harassment or discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

63. Petitioner proved that Respondent harassed and

discriminated against T. R. due to sex and generally exploited

his relatio nship with several female students for personal gain

or advantage by treating them as females rather than students.

Although the evidence is not clear and convincing on this point,

Petitioner proved by a bare preponderance of the evidence that

Respondent' s harassment and discrimination involving T. R. and

treatment of the other female students discussed above was so

serious as to impair his effectiveness in the school system.

64. Petitioner's Policy 8.25(1)(o) forbids employees from

having an inappropria te relationship with a student. Policies

8.25(1)(k) and 8.25(1)(l) cover the prohibitions stated in Rule

6B - 1.006(3)(h) and (g), respectively. Policy 8.25(1)(x)

incorporates state law. The penalties for these violations

range from cautions or reprimands to dismissal.

65. School Board Policy 8.25(1)(a) calls for dismissal of

a teacher guilty of "inappropriate sexual conduct," but the

examples are all of conduct more serious than exists in this

case: "lewd and lascivious behavior, indecent exposure,

so licitation of prostitution, sexual battery, possession or sale

of pornography involving minors, and sexual relations with a

student." Policy 8.25(1)(k) provides a penalty range of caution

to dismissal for "using position for personal gain," and Policy

8.2 5(1)(o) provides for a penalty range of reprimand to

dismissal for sexual harassment or discrimination of a student.

These latter policies are applicable here. Policy 8.25(3)

identifies a wide range of aggravating and mitigating factors;

the relevant fac tors have been identified above.

66. The harassment and discrimination involving T. R. is

the focus for the discipline. Harassment and discrimination

involving a student is serious, but Petitioner's policy calls

for anything from a reprimand to dismissal . Respondent's

behavior toward T. R. is not sufficiently serious as to warrant

dismissal. However, one aggravating factor is Respondent's

sexually inappropriate comments, gesture, and behavior toward

the other female students, but, even this probably wou ld not

have justified dismissal. The aggravating factor that warrants

dismissal is Respondent's unprofessional attempt to deny

responsibility for his actions and, even worse, accuse the

students whom he mistreated of lying. Respondent still seems

not to understand the professional responsibilities of a teacher

toward his students.

RECOMMENDATION

It is

RECOMMENDED that the Pinellas County School Board enter a

final order dismissing Respondent from employment.

DONE AND ENTERED this 13th day of Februar y, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrat ive 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 13th day of February, 2003.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Florida Education Center

Department of Education

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines S treet

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

Mark Herdman, Esquire

Herdman & S akellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Jacqueline M. Spoto, Esquire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All p arties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.