STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2599

)

MARY L. CANOVA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Haines City, Florida on September 11, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobsen, P.A.

Post Office Box 1578

150 East Davidson Street Bartow, Florida 33831

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.

PRELIMINARY MATTERS

By letter dated January 11, 1995, John A. Stewart, Superintendent of the Polk County Schools advised Respondent, Mary L. Canova, she was being dismissed from employment with the School Board because of her alleged misconduct in office and insubordination. She was suspended without pay effective January 10, 1995 pending completion of the hearing process. Respondent thereafter requested formal hearing on the intended dismissal and this hearing ensued.

At the hearing, Petitioner presented the testimony of Wendy M. Malady, Shawn Kiker, William R. Rowe, III and Bradston D. Parton, all students of the Respondent at the time in issue; Betty L. Denmark, head of the Business Department at Haines City High School; Richard Chapman, Director of Employee

Relations for the Board; and James R. Partain, Principal. Petitioner also introduced Petitioner's Exhibits 1 through 7. Respondent testified in her own behalf; presented the testimony of Tawanna L. Arnold, a student, and Janet L. Culpepper, former DCT coordinator; and introduced Respondent's Exhibit A through D.

A transcript of the proceedings was furnished and after the receipt thereof, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City.

   
   

2. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment.

   
   

3. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed.

   
   

4. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student.

   
   

5. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level."

   
   

6. The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the

   Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her.

   
   

7. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement.

   
   

8. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case.

   
   

9. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Board seeks to terminate respondent's employment as a contract teacher because of the alleged misconduct in office and gross insubordination and has suspended her without pay pending hearing on her appeal of that action. To do so, it must establish either or both allegations by a preponderance of the evidence.

    
    

12. Sections 231.36(1)(a) and (6)(a), Florida Statutes, authorize the suspension or dismissal of any person employed as a member of a school district's instructional staff during the term of an employment contract for just cause. Just cause is defined by statute as including misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

13. Under the provisions of Rule 6B-4.009(3), F.A.C., gross insubordination is defined as "a constant or continuing refusal to obey a direct order, reasonable in nature, given by and with proper authority", and 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.

    
    

14. Pertinent portions of Rule 6B-1.006(3). F.A.C., in defining the obligation of the educational professional to the student, mandate that the teacher:

    
    

    1. Shall make reasonable effort to protect the student from conditions harmful to learning and/ or to the student's mental and/or physical health and/or safety.

       * * *

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          * * *

       2. Shall not intentionally violate or deny a student's legal rights.

       * * *

       (h) Shall not exploit a relationship with a student for personal gain or advantage.

       * * *

       (n) Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

       
       

15. Respondent admits to having given a student a pill, knowing that it was inappropriate for her to do so, but assuming it was nothing more powerful than a potassium supplement. Though this constitutes misconduct, standing alone, it is not of sufficient gravity to support major disciplinary action.

    
    

16. However, that action does not stand alone. The evidence also established than Respondent willfully violated standing school policy by allowing students to leave the campus at other than approved times and without a pass. She also used those students, at times, to accomplish personal errands for her. This, too, is knowing misconduct, and taken in connection with the other policy violation, tends to establish a pattern of contempt for the rules that teachers must live by. Aside from being violations of the Principles of Professional Conduct, these actions also set an improper example for students which seriously undermines Respondent's effectiveness as a teacher.

    
    

17. In addition, Respondent's continuing to confront students regarding their participation in an investigation involving her, after having been specifically advised not to do so by her Principal and warned by him of the consequences of disobedience, constitutes gross insubordination supporting discipline.

18. To be sure, Respondent's record prior to the 1993-1994 school year has been good. She has almost eight years of satisfactory or better than satisfactory performance. Something appears to have changed in her approach to education, however. In the Spring of 1994 she was verbally warned regarding her drinking in front of students and making racially offensive comments to students, and was administered discipline for making sexually inappropriate comments to students and for improperly allowing students to grade papers, average grades and have access to her grade book. Taken together, it is clear that Respondent marches to the sound of her own drummer regarding her responsibilities toward her employer and her students. This is inconsistent with her continued employment as a public school teacher in Polk County.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein.

RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 3rd day of November, 1995.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 4. Accepted and incorporated herein.

1. - 9. Accepted and incorporated herein.

   1. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her.

   2. - 13. Accepted and incorporated herein.

      14. Accepted and incorporated herein.

      FOR THE RESPONDENT:

      
      

      1. & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing.

         1. Accepted and incorporated herein.

         2. Accepted.

         3. Accepted and incorporated herein.

         4. Accepted and incorporated herein.

         5. & 8. Accepted and incorporated herein.

            1. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's

               December 2, 1994 letter to Chapman.

            2. Accepted and incorporated herein.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand,

Vreeland & Jacobsen, P.A. Post Office Box 1578

150 East Davidson Street Bartow, Florida 33831

Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North

Suite 308

Palm Harbor, Florida 34684

John A. Stewart Superintendent

Polk County Schools Post Office Box 391

1915 South Floral Avenue Bartow, Florida 33830

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-002599

Orders for Case No: 95-002599