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2011 November 14 - 12:00 am

POV: Faculty, Sex, and the Internet: How One Court Decided Off-Duty Conduct Harmed the Learning Environment

Frances Rogers

Sexually explicit messages sent via text, Internet, Facebook, Twitter and the like have been getting a number of people in hot water, including politicians and other high-profile officials. Now, add to the list academic employees after a California Court of Appeal recently overturned a Commission on Professional Competence’s decision to reinstate a public school administrator after he posted a pornographic and obscene ad on the Craigslist website soliciting (free) sex.

Frank Lampedusa was a tenured dean of students in the San Diego Unified School District when he placed an ad on Craigslist.com stating in obscene and vulgar, albeit misspelled and grammatically incorrect, terms that he wished to engage in sexual relations with another adult.
The ad also contained pictures of Lampedusa’s face and genitalia.

An anonymous parent of a student reported the ad to San Diego police, who notified the district. Lampedusa was placed on paid administrative leave and served with notice of intent to dismiss for “evident unfitness for service” and “immoral conduct,” among other charges. The administrative termination appeal commission ordered Lampedusa reinstated, reasoning that the district failed to establish a nexus between his conduct and his performance as an educator. The district sought relief in Superior Court and ultimately, the Court of Appeal.

The Court of Appeal held that the commission’s decision must be set aside and that Lampedusa’s conduct did in fact constitute grounds for dismissal, applying the “Morrison factors” which are used to determine whether a nexus exists between misconduct and the impact on performance as a K-12 or community college educator.

The court surprisingly gave weight to the hearsay evidence of the anonymous parent complaint to find that the conduct had an adverse effect on students. Lampedusa’s principal also testified that she lost confidence in his ability to serve as a role model for students.

The court also gave weight to the fact that the conduct was recent and that Lampedusa served as an administrator and educator in a middle school. Lampedusa’s conduct was further aggravated by the fact that he posted graphic, pornographic photos and obscene written material on a website open to the public; that he admitted to posting similar ads in the past; that he would probably post less graphic ads in the future; and that he believed he had done nothing immoral.

The court also relied on evidence that Lampedusa did not take responsibility for his conduct, but rather stated that he expected parents and students to take care not to look at such online ads. Lampedusa also claimed to believe that even if a student saw his ad, it would not affect his ability to teach the student effectively.

The court also found that Lampedusa’s conduct was immoral because it evidenced indecency and moral indifference. The court further noted that disciplining Lampedusa for publicly posting his ad did not infringe on his constitutional rights or the rights of other teachers. These factors established evident unfitness for service.

The court noted that this educator was not disciplined for his private sexual conduct and that such conduct between two consenting adults was not the issue. It is the fact that this educator exercised poor judgment and posted obscene, pornographic statements and photos publicly that cost him his job, the court said.

Although this case involved a K-12 academic employee, it has similar application to faculty employed by a community college district. In California, the causes for which a community college district may discipline a community college faculty member are the same as those for K-12 teachers, including evident unfitness for service and immoral conduct. In both the K-12 and community college contexts, the nexus between the misconduct and the instructor’s employment is measured by application of the “Morrison factors.”

The big difference between this case and a similar case involving a community college faculty member is the impact that the conduct would have on the ability to teach students. The fact that Lampedusa was an employee at a middle school undoubtedly weighed heavily on the court’s determination. Certainly, if minor-aged students and their parents had seen the Craigslist ad, it would have impacted Lampedusa’s ability to teach and guide these students in the future. Community college faculty, on the other hand, instruct adults. Arguably, there is less of an impact on students in the community college setting than in a middle school setting. This is not to say that a court may similarly find some impact on students in cases involving community college faculty.

However, the “Morrison factors” which could weigh similarly in a community college setting include: (1) the adverse impact it may have on fellow educators in the district; (2) that the conduct was not remote in time; (3) that the conduct was public; (4) the lack of responsibility taken and lack of remorse by the faculty member; (5) the potential for repetition; (6) the conduct evidences indecency and moral indifference; and (7) the conduct is not constitutionally protected free speech because of its obscene nature.

As the Internet and social media become more prevalent in everyday society, we can expect that there will be an evolution in case law addressing the intersection of “private” life and public employment.

Frances Rogers is an associate with Liebert Cassidy Whitmore in the firm’s San Diego Office providing representation and legal advice to community college districts throughout the state. She is also a contributor to the firm’s California Public Agency Labor & Employment Blog. She can be reached at frogers@lcwlegal.com.

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