STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF POLK COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4483

)

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 suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.

PRELIMINARY MATTERS

By letter dated July 26, 1994, John A. Stewart, Superintendent of Polk County Schools, advised the Respondent, Mary L. Canova, that he intended to suspended her without pay for five days between August 8 and August 12, 1994, because of his determination that she had made improper comments of a sexual nature to students and had allowed students to grade papers, average grades and enter grades in her grade book. Thereafter, through counsel, Respondent requested a formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Alisha D. Forsythe, Jonathan P. Bradley, Delauna K. Muncy, Peggy S. O'Neill, Jeronima Y. Avellenda, Twanna L. Arnold, and Heather Marshall, all, at the time in issue, students of the Respondent; Jim Partain, Principal of Haines City High School, (HCHS), and

Richard Chapman, Director of Employee Relations for the School Board. Petitioner also introduced Petitioner's Exhibits 1 through 7. Respondent testified in her own behalf, presented the testimony of Janet L. Culpepper, former DCT coordinator at HCHS, and introduced Respondent's Exhibits 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 the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City.

   
   

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

   
   

3. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them.

   
   

4. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated.

   
   

5. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment.

   
   

6. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation,

   Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made.

   
   

7. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students.

   
   

8. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique.

   
   

9. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades.

   
   

10. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed.

    
    

11. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In its effort to discipline Respondent, Petitioner has the burden to show a lawful basis for discipline by evidence which establishes her misconduct

    by a preponderance of the evidence. Section 231.36(1)(a) and (6)(a), Florida Statutes, authorizes the Board to suspend or dismiss an instructional employee during the term of the employment contract for just cause. Just cause, by statute, includes but is not limited to:

    
    

    ... misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

14. Under the provision of Rule 6B-4.009(3), F.A.C., 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.

    
    

15. Pertinent portions of Rule 6B-1.006, F.A.C., in defining the obligation of the educational professional to the student, mandates 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.

       * * *

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       * * *

       (i) Shall keep in confidence personally identi- fiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

       
       

16. The evidence presented by the Petitioner establishes that Respondent did mention a vibrator to a student in her class but in a manner far less offensive and inappropriate than was alleged. The evidence is less clear that she questioned Mr. Bradley about masturbation, and there is no credible direct evidence as to the context in which it was mentioned. Teachers often must broach sensitive subject matter with their students.

    
    

17. It is the method of approach and the context in which the comment is made which differentiates censurable misconduct from caring and supportive advice. Here, Petitioner has not shown that Respondent's comments were made in an unacceptable context. Had they been so made, it is a certainty some complaint would have been made by at least one individual long before the "group" got together at Pizza Hut to determine "what to do about Ms. Canova."

    
    

18. The allegation regarding paper grading, grade averaging and access to the grade book is far better established. Clearly this is contrary to school rules and clearly Respondent allowed it to happen.

    
    

19. Taken as a whole, however, the evidence does not show that, even with her misconduct established, Respondent's performance justifies serious

discipline. Clearly, Respondent has some problems, but they can be adequately addressed by a reprimand.

RECOMMENDATION

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

RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book.

RECOMMENDED this 6th 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 6th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483

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. & 2. Accepted and incorporated herein.

1. & 4. Accepted and incorporated herein.

   1. First two sentences accepted. Conclusions as to misconduct rejected.

   2. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven.

   3. Not proven.

   4. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any

      event, this discussion was not listed as a basis for discipline.

   5. Not proven and not a listed basis for discipline.

   6. & 11. Accepted and incorporated herein.

      12. Accepted as a restatement of the witnesses' testimony.

      FOR THE RESPONDENT:

      
      

      1. - 3. Accepted and incorporated herein.

         1. Accepted and incorporated herein with the exception of the last sentence which is not proven.

         2. & 6. Accepted and incorporated herein.

1. & 8. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. Accepted.

   3. Accepted and incorporated herein.

   4. First two sentences accepted. Third sentence a non proven conclusion.

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. 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: 94-004483

Orders for Case No: 94-004483