07-000563TTS Orange County School Board vs. Paul Parisi Status: Closed Recommended Order on Friday, August 24, 2007.

Summary: Petitioner failed to prove that Respondent made improper comments of a sexual nature to one of his students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-0563

)

PAUL PARISI, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on June 20, 2007,

in Orlando, Florida, before Bram D.E. Canter, an Administrative

Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-0271

For Respondent: Joseph Egan, Jr., Esquire

Richard Trapp, Esquire

Egan, Lev & Siwica

Post Office Box 2231

Orlando, Florida 32802-2231

STATEMENT OF THE ISSUE

Whether Respondent, Paul Parisi, committed the violations

charged in the Administrative Complaint of the Orange County

School Board (School Board) and, if so, whether just cause

exists to terminate Respondent's annual contract of employment

as a teacher.

PRELIMINARY STATEMENT

On December 12, 2006, the School Board suspended Respondent

and advised him of its intent to terminate his employment

contract based on the charges of misconduct in office, willful

neglect of duty, gross insubordination, conduct unbecoming a

public employee, and breech of his employment contract as set

forth in the Administrative Complaint issued on November 21,

2006. Respondent timely requested an administrative hearing,

and the matter was referred to DOAH for the assignment of an

Administrative Law Judge to conduct an evidentiary hearing.

At the final hearing, the School Board presented the

testimony of James Rigling, John Hawco, 1/ Laura Beusse, and J.L. 2/

The School Board's Exhibits 4 and 5 were admitted into evidence.

Respondent testified on his own behalf and presented the

testimony of Barbara Tyson and Shannon Ballard through their

depositions. Respondent's Exhibits 1, 2, 5, and 8 through 10

were admitted into evidence. 3/

The two-volume Transcript of the final hearing was filed

with DOAH. The parties filed Proposed Recommended Orders that

were carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Respondent was a teacher at Ocoee High School in Ocoee,

Florida, for the 2006-2007 school year. Respondent is 42 years

old.

2. J.L. was a female, eleventh grade student at Ocoee High

School and 17 years old at the time of the events which are the

subject of this case.

3. After obtaining a master's degree in education from the

University of West Florida in 2004, Respondent was employed as a

fourth grade teacher for one semester at Kissimmee Charter

Academy in Osceola County and, then, as a fifth grade teacher

for one year at Catalina Elementary School in Orange County.

4. In 2006, Respondent was hired as a language arts

teacher at Ocoee High School. One of the courses he was

assigned to teach was a one-semester ACT/SAT Preparatory Course

designed to prepare students for taking the Academic College

Test and Scholastic Achievement Test for admission to a college

or university.

5. J.L. had generally performed poorly in high school, had

a grade point average less than 2.0, and needed to significantly

improve her grades to graduate. She was particularly weak in

math. In the 2006-2007 school year, she was attending night

classes after the regular school day to obtain course credits

for classes she had failed.

6. The 2006-2007 school year at Ocoee High School started

on or about August 7, 2006. J.L was enrolled in Respondent's

ACT/SAT Preparatory Course, along with about 15 other students.

The Course was scheduled for every other school day and was held

during the last period of the school day. Math is a prominent

part of the course.

7. On August 31, 2006, J.L. went to see Mr. Rigling, a

guidance counselor at Ocoee High School. She told Mr. Rigling

that she wanted to be transferred out of Mr. Parisi's class.

She did not immediately tell Mr. Rigling the reason she wanted

out of the class.

8. Generally, students are allowed to drop and add classes

within the first two weeks of the school year, but not

thereafter. Students are not permitted to drop classes after

the second week except in exceptional circumstances. When J.L.

told Mr. Rigling that she wanted to drop Mr. Parisi's class,

Mr. Rigling told J.L. that she could not do so without a

"substantial" reason. It was then that J.L. told Mr. Rigling

that she felt "uncomfortable" in Respondent's class.

9. Mr. Rigling described J.L. as "tense" and "reluctant"

to explain to him why she felt uncomfortable in Respondent's

class. She eventually showed Mr. Rigling a greeting card she

had received from Respondent and told Mr. Rigling about two

conversations she had with Respondent that caused her to feel

uncomfortable. These allegations will be discussed in detail

below.

10. Mr. Rigling asked J.L. to wait in his office and then

informed Laura Beusse, an assistant principal, of J.L.'s

accusations against Respondent. Mr. Rigling and Ms. Beusse

contacted the School Board's employee relations department,

which has exclusive authority to investigate allegations of

sexual abuse or harassment.

11. Mr. Rigling then asked J.L. to fill out a witness

statement form. In her witness statement prepared on August 31,

2006, J.L. stated:

On Tuesday, August 29th, after class, I

received a "friendly" card from my SAT/ACT

prep teacher. I didn't think to [sic] much

of the gesture because Mr. Parisi is a nice

teacher. To bring things back; I first had

small talk with Mr. parisi [sic] on

August 25th. The small talk consisted of my

past and how far I had come and changed my

life. I do not recall why our conversing

went from simple to deep or how it did, but

the content which first made me unsure, was

when I had mentioned that my parents allowed

my boyfriend to live with us, and Mr. Parisi

bluntly said "so you were having sex at 15."

I answered him, and told him yes and gave

him my own Email address so that he could

look me up on My Space. I did not think

anything of it at first; then on Tuesday

8/29 I had stayed after class, because I had

night school at three o'clock, so I stayed

in class and talked to Mr. Parisi in our

classroom alone. The entire conversation

was about mostly my past expirences [sic]

and life in general. For some reason it

seemed that the conversation continued to

return to my sexual past: The question he

asked me that most made me uncomfortable was

him asking me, "What my favorite position

was, as in term [sic] of having sex. In the

card he gave me his personal email first and

then his work email. Also he signed it with

your friend. He did say that he asked such

questions because he thought I was very

interesting, But I felt as if we were on an

! informal date or something . . . trying to

find out things about each other. He also

kept mentioning that I was pretty. When

Mr. Parisi and I had our first chat and I

had mentioned my ex-boyfriend and how he was

living with me, and then Mr. Parisi assumed

that I had been sexually active, he acted

very interested in that particular subject.

12. Mr. Rigling completed an OCPS Management Directive A-4

Reporting Form on August 31, 2006, the purpose of which was to

independently recount what he had been told by J.L.

Mr. Rigling's written statement was as follows:

On 8/31 at approximately 10:20 a.m., in room

620 Officer Grogran asked that I speak with

[J.L.]. [J.L.] and I went into my office

and discussed a problem that took place

after school. [J.L.] said on 8/25 she had

begun to speak with Mr. Parisi about some

problems she had in her past. She discussed

some concerns with her boyfriend as well as

regarding sex. Mr. Parisi discussed in a

general way the risks of having sex at an

early age. [J.L.] told me she felt

uncomfortable during the discussion. On

8/29 while waiting for night school [J.L.]

was in Mr. Parisi's class. Mr. Parisi gave

her a card (enclosed). They continued a

general conversation about school and life.

[J.L.] reports that the teacher repeatedly

try [sic] to steer the conversation toward

her past and present boyfriend. Earlier

[J.L.] had spoken with Mr. Parisi about

feeling pressured by her ex boyfriend to

have a threesome. Mr. Parisi told [J.L.]

that she is very interesting and that he was

intrigued by her. [J.L.] stated she felt

very uncomfortable. [J.L.] reports he then

asked her what is your favorite position.

[J.L.] stated she did not answer and tried

to redirect the conversation to a nonsexual

one. [J.L.] said that Mr. Parisi told her

how pretty she was. He [sic] [J.L.] reports

that he said this more than once and she

felt uncomfortable.

13. The greeting card referred to in these two statements

had a cover depicting "Historic Route 66" and, inside,

Respondent wrote the following:

Hello [J.L.]

I am grateful to have met such a wonderful

person as you along the road that criss-

crosses [sic] life. I hope that where ever

[sic] our roads take us that we are better

people for having met and can keep in touch.

[Respondent then lists both his private and

school email addresses.]

You are a pleasure to have in class and I

enjoy your smile, enthusiasm, optimism, and

contributions of intellect.

Keep on being the best "[J.L.]" that you can

be.

Your Friend

Mr. Parisi

14. Later the same day, August 31, 2006, the principal of

Ocoee High School came to Mr. Parisi's classroom and directed

that he immediately vacate the school campus and go to the

employee relations department. He was not told why. Respondent

returned to the campus only once thereafter, to obtain his

personal items.

Discrepancies in the Two Written Statements

15. There are two prominent discrepancies in the written

statements of J.L. and Mr. Rigling. First, J.L. suggests that

the sexual content of the conversation with Respondent on

August 25 was initiated by Respondent in response to her telling

him that her parents allowed her boyfriend to live with them.

However, Mr. Rigling indicates that J.L. initiated the

discussion of sexual matters. Second, Mr. Rigling reports that

J.L. told Respondent in their August 29 conversation about being

pressured by her boyfriend to have a "threesome," but J.L. did

not mention that in her own statement.

16. Based on the more persuasive evidence in the record,

it is found that Mr. Rigling's account is the more accurate

account.

The August 25 Conversation

17. The central elements of the August 25 conversation

between J.L. and Respondent, according to the written statements

of J.L. and Mr. Rigling, are as follows:

a. J.L. initiated the conversation.

b. J.L. initiated the sexual content of the

conversation.

c. Respondent discussed the problem of

having sex at an early age.

d. J.L. felt uncomfortable.

18. In her written statement, J.L. indicated that her

discomfort was the result of Respondent's blunt statement, "So

you were having sex at 15." It is inferred that J.L. meant to

convey that she thought this was a presumptive or provocative

comment. Mr. Rigling's statement does not contain an

explanation for J.L.'s discomfort on August 25, unless it is

inferred that Respondent's comments about "the risks of having

sex at an early age" caused J.L. to feel uncomfortable.

19. It is difficult to reconcile J.L.'s claim of

discomfort about Respondent's alleged statement, "So you were

having sex at 15," with (1) her admission that she was having

sex at 15, (2) her telling Respondent that her boyfriend was

living with her, and (3) her apparent comfort in talking to

Respondent about "concerns with her boyfriend regarding sex."

20. Respondent's account of the August 25 conversation is

that it lasted approximately one minute, consisted of J.L.

coming up to his desk after class and telling him she had to

take the bus home, and his simple response to the effect, "Then

don't miss your bus." Respondent testified at the final hearing

that he thought at the time that J.L. was implying that she

wanted him to give her a ride home, which he had no interest in

doing.

21. J.L. subsequently changed her account of what happened

on August 25. J.L. admitted that she changed her story at her

deposition when she was asked why she would have given

Respondent her email address on August 25, if he had made her

feel uncomfortable on that day. J.L.'s revised account of the

events was that Respondent did not say anything to her on

August 25 to make her feel uncomfortable and that is why she was

willing to give him her email address. According to J.L.'s

revised account, all of Respondent's statements that caused her

to feel uncomfortable occurred on August 29, 2006.

22. J.L. tried to explain how her witness statement could

be reconciled with her final hearing testimony. However, her

explanation was unpersuasive. J.L. ultimately conceded that her

written statement was "really twisted" and "that's not how it

happened at all."

The August 29 Conversation

23. The central elements of the August 29 conversation

between J.L. and Respondent, according to the written statements

of J.L. and Mr. Rigling and their testimony at the final

hearing, are as follows:

a. J.L. and Respondent were alone in the

classroom.

b. J.L. initiated the sexual content of the

conversation.

c. J.L. told Respondent that her boyfriend

was pressuring her to engage in a

"threesome."

d. Respondent repeatedly tried to steer the

conversation to sexual matters.

e. Respondent told J.L. she was pretty.

f. Respondent asked J.L. about her "favorite

position."

g. J.L. felt uncomfortable.

h. Respondent gave J.L. a greeting card.

24. Respondent's account of the August 29 conversation is

that J.L. talked about her family, her plan to go away to

college, and that her boyfriend lived with her. Respondent

testified that he told J.L. not to focus on her boyfriend and

sex, but to focus on academics. He denies telling J.L. that she

was pretty and asking her about her favorite sexual position.

Respondent handed J.L. the greeting card which he thought she

had requested. Respondent claims that during at least half of

the conversation, another student was in the room using the

telephone.

25. Assistant Principal Laura Beusse testified that the

appropriate action for a teacher to take when a student reveals

personal sexual matters is to notify a supervisor.

The Greeting Card

26. When Respondent gave J.L. the greeting card, it was in

an envelope. J.L. did not open the card when she was in the

classroom with Respondent on August 29. She did not open the

card until she got home later that day.

27. J.L. testified that when she asked for a card, she

meant Respondent's business card. Respondent says he did not

have any business cards, and he thought J.L. wanted his email

address in a greeting card. Respondent thought the card was a

good opportunity to give J.L. positive reinforcement, which the

teachers at Ocoee High School were encouraged to do.

28. J.L. described the greeting card as "a nice gesture,"

but also testified that it upset her "a little" because "I

didn't know what he expected."

29. Respondent's statements of praise for J.L. in the

greeting card are exaggerated in light of what he knew about

J.L. and the fact that he had already observed that she was not

a good student. His explanation for the words he used was that

it was just his "style" of making a positive personal connection

with J.L. Assistant Principal Beusse was not asked specifically

about the greeting card, but she testified that it was important

for teachers to make personal connections with their students.

30. The School Board focuses on two elements of the

greeting card that it claims were inappropriate. First, the

School Board claims it was inappropriate for Respondent to give

J.L. his personal email address in the card. However, no

evidence was presented to show that it is contrary to a specific

policy of Ocoee High School or the School Board for a teacher to

give a student his or her personal email address. The

unrebutted testimony of another Ocoee High School student and

J.L.'s best friend, Shannon Ballard, was that "a lot of teachers

give out their [private telephone] numbers" to students so the

teachers can be more easily available to students if the

students need help.

31. The School Board's second claim regarding the greeting

card is that is was inappropriate for Respondent to end the card

with the salutation, "Your Friend." However, Respondent signed

the card "Mr. Parisi," rather than with his first name.

32. When J.L.'s mother saw the greeting card, she thought

it was "friendly," "encouraging," and did not think there was

anything in it that was inappropriate.

33. Mr. Rigling did not consider the statements made by

Respondent in the greeting card to be inappropriate. In email

correspondence between Mr. Rigling and J.L., she discussed

personal (including sexual) subjects and they exchanged

expressions of fondness. J.L. began one email "Dearest

Mr. Rigling," and in another mentions cheating on her boyfriend

"last night in a very ungodly way." Mr. Rigling responded "You

and I are kindred spirits," "You have a big fan here," and "You

have helped and inspired me."

Credibility

34. In a case like this, where there are no witnesses

other than the accuser and the accused, the Administrative Law

Judge must examine the record for indices of credibility or lack

of credibility, weigh the evidence, and determine who is more

believable. Having considered the evidence presented and the

demeanor of the witnesses, it is found that Respondent's account

of the events is more believable than J.L.'s account. This

finding is based in large part on the following evidence:

a. There was a clear and compelling motive for

J.L. to fabricate accusations against Respondent. The

accusations provided the substantial reason required

to get out of Respondent's class and avoid a bad

grade, which would jeopardize her ability to graduate.

b. J.L. did not accuse Respondent until after

she was told by Mr. Rigling that she needed a

substantial reason to get out of Respondent's class.

c. J.L.'s accusation was easy to fabricate

because she had already set the stage for the

accusation by initiating a conversation with

Respondent about her sexual experiences, and she could

use the greeting card to support her story.

d. J.L.'s worst accusation against Respondent,

that he asked her what her favorite position was,

sounds like something an adolescent would make up if

she had only a short time to fabricate an improper

teacher statement.

e. J.L. did not expect her accusation to cause

Respondent to be fired. That serves to explain why

J.L. was willing to do something so destructive to

Respondent's teaching career and life; she did not

foresee the consequences.

f. Just before she made her accusation against

Respondent, J.L. told her best friend, Shannon

Ballard, about the card she received from Respondent,

but said nothing about him asking about her "favorite

position." Shannon said she was "amazed" J.L. did not

tell her about that. J.L.'s failure to tell Shannon

the rest of the story is consistent with the

proposition that there was nothing else to tell; the

accusation had not yet been fabricated.

g. J.L.'s story changed, and the change appears

to be the result of fabrication, rather than innocent

mistake.

h. J.L.'s claim of discomfort is not consistent

with her personality, which her best friend aptly

described as "very forward." This is a 17-year-old

who is not uncomfortable about telling a teacher she

hardly knows that her boyfriend is pressuring her to

have a "threesome." A teacher's comments to a student

can be improper and constitute misconduct without

regard to whether the student was offended,

embarrassed, or otherwise made uncomfortable by the

comments. The point here is that J.L.'s claim of

discomfort is not credible.

i. J.L.'s accusations also require a finding

that Respondent, who had recently received his

master's in education with accolades from university

faculty and was only in his third week as a new high

school teacher, was already attempting to steer a

student into some kind of sexual relationship. Such a

thing is possible, but would represent an extreme

deviation from common moral conduct and, therefore,

requires a concomitant degree of proof to believe,

which was lacking in this case.

j. With regard to Respondent's credibility, the

worst that can be said of his actions is that by

giving J.L. a greeting card during the school year, he

created a situation where his intention of providing

her with positive reinforcement could be misperceived

by J.L as a romantic gesture. The same card, if given

on the last day of school, would probably not have

been perceived to have a possible romantic

connotation. However, Respondent's use of the card

can be explained by his naiveté and enthusiasm as a

new teacher. When considered with the totality of the

evidence, the card does not prove the veracity of

J.L.'s accusations. Furthermore, when Respondent's

greeting card is compared with Mr. Rigling's

correspondence with J.L., it can be seen that J.L.'s

"very forward" behavior caused both men to wax poetic

near the boundary of propriety.

CONCLUSIONS OF LAW

35. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Section 120.569

and Subsection 120.57(1), Florida Statutes (2006). 4/

36. District school boards have authority to operate,

control, and supervise all public schools in their respective

districts and may exercise any power except as expressly

prohibited by the State Constitution or general law.

§ 1001.32(2), Fla. Stat.

37. Such authority extends to personnel matters and

includes the power under Subsection 1012.33(1)(a), Florida

Statutes, to dismiss professional service contract teachers for

"just cause."

38. "Just cause," as defined in Subsection 1012.33(1)(a),

Florida Statutes, includes, "but is not limited to," misconduct

in office, incompetency, gross insubordination, willful neglect

of duty, or conviction of a crime involving moral turpitude.

The use of the words "but is not limited to" in the statute

indicates the Legislative intent that other wrongdoing may also

be deemed just cause for dismissal. See Dietz v. Lee County

School Board , 647 So. 2d 217 (Fla. 2d DCA 1994).

39. "Misconduct in office" is defined in Florida

Administrative Code Rule 6B-4.009 ("Criteria for Suspension and

Dismissal") as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule

6B-1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B-1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

40. The Principles of Professional Conduct for the

Education Profession in Florida, set forth in Florida

Administrative Code Rule 6B-1.006, require a teacher to, among

other things, make a reasonable effort to protect a student from

harmful conditions and to not "exploit a relationship with a

student for personal gain or advantage."

41. Misconduct in office may be established, even in the

absence of specific or independent evidence of impaired

effectiveness, where the conduct engaged in by the teacher is of

such a nature that it "speaks for itself" in terms of its

seriousness and its adverse impact on the teacher's

effectiveness. See Purvis v. Marion County School Board , 766

So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County

School Board , 752 So. 2d 127, 128-29 (Fla. 2d DCA 2000); Summers

v. School Board of Marion County , 666 So. 2d 175, 175-76 (Fla.

5th DCA 1995).

42. The School Board bears the burden of proving, by a

preponderance of the evidence, each element of the charged

offenses which may warrant dismissal. McNeill v. Pinellas

County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Sublett

v. Sumter County School Board , 664 So. 2d 1178 (Fla. 5th DCA

1995).

43. The School Board did not meet its burden of proof to

establish that Respondent made inappropriate statements to J.L.

of a sexual nature.

44. Furthermore, the School Board did not prove that in

giving J.L. the greeting card and his personal email address, he

engaged in misconduct as defined in Florida Administrative Code

Rule 6B-4.009. It was not proven that Respondent intended to

exploit his relationship with J.L. for personal gain or

advantage, and the greeting card did not impair his

effectiveness as a teacher in the school system.

45. Respondent's failure to inform a supervisor that J.L.

had disclosed sexual matters to him warrants a reprimand at

most, not his dismissal.

46. The School Board did not establish just cause for the

dismissal of Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the School Board issue a final order

rescinding its prior action against Respondent and reinstating

his employment as a professional service contract teacher with

the School Board, as well as any pay and benefits of which he

was deprived.

DONE AND ENTERED this 24th day of August, 2007, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of August, 2007.

ENDNOTES

1/ The testimony of John Hawco, an investigator for the School

Board, was stricken by the Administrative Law Judge as not based

on personal knowledge and irrelevant.

2/ At the request of the School Board, and without objection

from Respondent, J.L.'s name was not disclosed in the Transcript

of the hearing.

3/ At the hearing, ruling was reserved on the admissibility,

over the School Board's objection, of Respondent's Exhibit 6,

which is a composite of prose and poetry by J.L. that appears on

her My Space website page, and includes writings in which J.L.

refers to herself as a liar. The School Board's objection is

sustained. The Exhibit is not relevant to prove J.L. fabricated

her accusations against Respondent.

4/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 codification.

COPIES FURNISHED :

Jeanine Blomberg, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ronald Blocker, Superintendent

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-0271

Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-0271

Joseph Egan, Jr., Esquire

Richard Trapp, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802-2231

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.