13-001488TTS Broward County School Board vs. Raymond Wantroba Status: Closed Recommended Order on Wednesday, December 4, 2013.

Summary: Teacher who made a student the butt of a joke is guilty of misconduct, and his employment should be suspended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13-1488TTS

RAYMOND WANTROBA,

Respondent.

/

Pursuant to notice, a formal administrative hearing was

conducted on September 26, 2013, utilizing webcast technology, RECOMMENDED ORDER

between sites in Fort Lauderdale and Tallahassee, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Adrian Alvarez, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Branden M. Vicari, Esquire

Herdman and Sakellarides, P.A.

29605 US Highway 19, North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Raymond Wantroba (Respondent), a teacher employed by

the School Board of Broward County (School Board), committed the

acts alleged in the Administrative Complaint filed by the School

Board and, if so, the discipline that should be imposed against

Respondent’s employment.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Respondent was

employed by the School Board as a teacher at Lyons Creek Middle

School (Lyons Creek), a public school in Broward County, Florida.

Respondent taught physical education and mathematics during the

2012-2013 school year. The conduct at issue in this proceeding

occurred while Respondent was teaching physical education.

At its regularly scheduled meeting on April 9, 2013, the

School Board took action to suspend Respondent’s employment

without pay and institute proceedings to terminate his

employment. Respondent timely challenged the School Board’s

action, the matter was referred to DOAH, and this proceeding

followed.

The Administrative Complaint alleged certain facts

pertaining to Respondent’s treatment of a student and, based on

those facts, alleged that Respondent’s employment should be

terminated.

Paragraph 8 of the Administrative Complaint is as follows:

8. The legal basis for [Respondent’s]

termination is immorality, misconduct in

office and insubordination. See Fla. Admin.

Code r. 6A-10.080, 6A-10.081, 6A-5.056; [and]

Fla. Stat. §1012.33 Fla. Stat. [sic].

At the final hearing, the School Board presented the

testimony of Dr. Ted Toomer (principal of Lyons Creek), Susan

Cooper (a labor relations specialist employed by the School

Board), Bernard Brennan (a physical education teacher at Lyons

Creek), H.R. (a teacher at Lyons Creek and the mother of student

S.R.), S.R. (a Lyons Creek student), D.R. (a Lyons Creek

student), A.D. (a Lyons Creek student), Christopher Barker

(a campus monitor at Lyons Creek), Respondent, and Debra

Harrington (an assistant principal at Lyons Creek). The School

Board offered the following pre-numbered exhibits, each of which

was admitted into evidence: 3-6, 10, 11, 14, 20, 21, 23, 24, 32,

and 33. Respondent testified on his own behalf, but offered no

other testimony and no exhibits.

A Transcript of the proceedings, consisting of one volume,

was filed on November 4, 2013. The parties timely filed proposed

recommended orders, which have been duly considered by the

undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2012), and all references to rules are to the

version thereof in effect as of the date of the conduct at issue

in this proceeding.

FINDINGS OF FACT

1. At all times material hereto, the School Board has been

the constitutional entity authorized to operate, control, and

supervise the public schools in Broward County, Florida; and

Robert Runcie was Superintendent of Schools (Superintendent).

2. Respondent has been employed by the School Board since

2004 and holds a professional services contract, issued in

accordance with section 1012.33(3)(a). Respondent taught at

Lyons Creek for nine years. Respondent has been employed as a

teacher for over 25 years.

3. During the 2012-13 school year, Respondent was assigned

to teach physical education and a math class at Lyons Creek.

4. Bernard Brennan also taught physical education at Lyons

Creek during the 2012-13 school year.

5. S.R., a 13-year-old male, was a seventh grade student at

Lyons Creek during the 2012-13 school year. During that school

year, Respondent taught S.R. physical education during fourth

period, which was the first class after lunch.

6. While the physical education class was coed, students

would change from school clothes into gym clothes in non-coed

locker rooms and change back into school clothes after concluding

the class activity. S.R. had a locker, which he shared with

A.D., another male student. S.R. and A.D. kept their school

clothes in the locker while they were in their gym clothes.

7. Mr. Brennan knew S.R. and he knew S.R.’s mother, who is

a teacher at Lyons Creek. Mr. Brennan joked around with S.R. by

hiding his shoes, a backpack, and a jacket on different

occasions. Respondent did not typically joke around with S.R.

8. On February 6, 2013, Respondent saw a group of eighth

grade male students playing with a woman’s undergarment (lacy,

purple panties) during his first period class. Respondent took

the underwear and placed it in the office he shared with

Mr. Brennan.

9. During lunch hour on February 6, Mr. Barker was resting

in Respondent’s office when Respondent placed the panties on

Mr. Barker’s leg. Respondent used his cell phone to take a

picture of Mr. Barker with the panties on his leg. Mr. Barker

heard the cell phone take the picture, gave the panties back to

Respondent, and left Respondent’s office. Mr. Barker did not see

what Respondent did with the panties.

10. On February 6 during Respondent’s class, S.R. and A.D.

changed from their school clothes into their gym clothes. They

placed their school clothing and school shoes in the locker they

shared. S.R. and A.D. both testified that they locked the locker

before leaving the locker room for the class activity. 1/

11. Following the class activity, S.R. and A.D. began to

change back into their school clothes. When S.R. tried to put

his foot into his shoe, he discovered the panties stuffed into

his shoe. When he took the panties out of his shoe, he was among

between 30 and 40 classmates, many of whom laughed at him.

Respondent was also present and laughed when S.R. took the

panties out of his shoe. Respondent asked S.R. if the panties

were his and if he wore them every day. S.R. was embarrassed by

the incident.

12. Respondent denied at the formal hearing that he put the

panties in S.R.’s shoe, and he denied making the statements

attributed to him by S.R. and A.D. That denial is not credible

in light of the other, more credible evidence presented by the

School Board. Respondent asserts that he put the panties in a

communal locker near S.R.’s locker because Mr. Brennan wanted to

put the panties in S.R.’s locker. 2/ Respondent also asserted that

he put the panties in the communal locker in an effort to ease

his relationship with Mr. Brennan. 3/ Mr. Brennan testified,

credibly, that he knew nothing about the panties until the

following day.

13. S.R.’s mother heard about the incident the day it

happened. That afternoon as they were walking towards her car to

leave school, S.R. explained to his mother what had happened.

S.R. and his mother immediately found an assistant principal and

reported the incident. The school administration began an

investigation into the incident the following day.

14. On February 7, Respondent spoke to S.R. without any

other adult present and asked him to “clear the air” with the

school administration so he and Mr. Brennan would not get into

trouble. S.R. did not know who put the panties in his shoe, but

he suspected Mr. Brennan. The record is not clear as to what

Respondent wanted S.R. to tell the school administrators.

15. On February 8, Dr. Toomer sent Respondent a letter

advising him that there would be a pre-disciplinary meeting

conducted February 14. Respondent was advised he could be

represented at that meeting.

16. During the pre-disciplinary meeting on February 14,

Respondent admitted to Dr. Toomer that he had placed the panties

in S.R.’s locker. Respondent stated the he wanted to feel

accepted by Mr. Brennan and Mr. Barker. Although there was no

direct evidence that Respondent had a key or the combination to

the lock on S.R.’s locker, his admission to Dr. Toomer

establishes that Respondent put the panties in S.R.’s locker.

17. Prior to the incident involving the panties, Respondent

had been counseled about his classroom management, locker room

supervision, behavior management, and his own behavior on

occasions in 2006, 2007, 2009, and 2011. In May 2012,

Respondent’s employment was suspended without pay for three days

following his refusal to allow a student to use the bathroom.

18. In January 2013, Debra Harrington, an assistant

principal at Lyons Creek, counseled Respondent about the lack of

adult supervision in the locker room. Ms. Harrington notified

Respondent in writing as to her concerns and expectations (School

Board’s Exhibit 11). Ms. Harrington advised Respondent that

failure to adhere to her expectations could result in further

discipline.

19. Dr. Toomer recommended to the Superintendent that

Respondent’s employment be terminated. In turn, the

Superintendent recommended to the School Board that Respondent’s

employment be terminated. On April 9, 2013, the School Board

accepted the Superintendent’s recommendation that Respondent’s

employment be terminated. The School Board suspended

Respondent’s employment without pay and instituted these

proceedings.

20. With his mother’s approval, S.R. remained a student in

Respondent’s fourth period physical education class until

Respondent’s employment was suspended.

21. Respondent testified that he did not intend to hurt any

student and was remorseful for his behavior.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

120.57(1), Florida Statutes.

23. Because the School Board, acting through the

superintendent, seeks to terminate Respondent’s employment, which

does not involve the loss of a license or certification, the

School Board has the burden of proving the allegations in its

Administrative Complaint by a preponderance of the evidence, as

opposed to the more stringent standard of clear and convincing

evidence. See McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476

(Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d

568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty. , 569

So. 2d 883 (Fla. 3d DCA 1990).

24. The preponderance of the evidence standard requires

proof by “the greater weight of the evidence,” Black’s Law

Dictionary 1201 (7th ed. 1999), or evidence that “more likely

than not” tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

THE ALLEGED VIOLATIONS

25. Section 1012.33(1)(a) includes the following as just

cause to terminate a teacher’s professional services contract:

. . . Just cause includes, but is not

limited to, the following instances, as

defined by rule of the State Board of

Education: immorality, misconduct in office

or being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

26. The Administrative Complaint alleged that Respondent

was guilty of immorality, misconduct in office, and

insubordination. The Administrative Complaint referenced section

1012.33, Florida Statutes, and Florida Administrative Code Rules

6A-5.056, 6A-10.080, and 6A-10.081.

IMMORALITY

27. The Administrative Complaint charges, in relevant part,

that Respondent was guilty of immorality.

28. Rule 6A-5.056(1) contains the following definition of

the term immorality:

(2) “Immorality” means conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individual’s

service in the community.

29. As will be discussed below, the School Board proved

that Respondent engaged in misconduct. The School Board did not

prove that Respondent’s misconduct rose to the level of

“immorality.”

MISCONDUCT IN OFFICE

30. Rule 6A-5.056(2) defines the term “Misconduct in

Office” as follows:

(2) “Misconduct in Office” means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

[Rule 6A-10.080];

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

[Rule 6A-10.081] . . . .

31. Rule 6A-10.081, sets forth the “Principles of

Professional Conduct for the Education Profession in Florida,”

and provide, in relevant part, as follows:

(3) Obligation to the student requires that

the individual:

(a) 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.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

32. The School Board alleges that Respondent is guilty of

misconduct in office within the meaning of section 1012.33

because he violated the above-quoted portions of rule 6A-10.081.

The School Board failed to establish that Respondent was guilty

of violating rule 6A-10.081(3)(h) because Respondent did not have

a relationship with S.R. other than as his teacher. Respondent

violated rule 6A-10.081(3)(a) and (e) as alleged in the

Administrative Complaint, and, consequently, is guilty of

misconduct in office.

INSUBORDINATION

33. The School Board charged Respondent with

insubordination, not gross insubordination. Florida

Administrative Code Rule 6A-5.056(4) defines “gross

insubordination” to mean “a consistent or continuing intentional

refusal to obey a direct order, reasonable in nature, and given

by and with proper authority; misfeasance, or malfeasance as to

involve failure in the performance of the required duties.” The

term insubordination has not been defined by rule. The common

meaning of insubordination is the refusal to obey a direct order,

reasonable in nature, and given by and with proper authority.

The School Board did not prove that Respondent was guilty of

either gross insubordination or insubordination. The order given

to Respondent was to provide supervision in the locker room.

Respondent was supervising his class when the events at issue in

this proceeding occurred. While Respondent is guilty of

misconduct, he is not guilty of insubordination.

34. In making the recommendation that follows, the

undersigned has considered the recommended dispositions asserted

by the School Board and Respondent, the nature of the misconduct,

the employment history of Respondent, and the School Board’s

Respondent’s use of a 13-year-old student to serve as the butt of

his joke is inexcusable, and he should be punished for his

misconduct. In recommending that his employment be suspended

without pay, as opposed to recommending that his employment be

terminated, the undersigned is persuaded by the remorse expressed

by the Respondent, his long tenure as an educator, and the

isolated nature of the conduct at issue.

RECOMMENDATION

The following recommendations are based on the foregoing

Findings of Fact and Conclusions of Law:

It is RECOMMENDED that the School Board of Broward County,

Florida, enter a final order adopting the Findings of Fact and

Conclusions of Law set forth in this Recommended Order. It is

FURTHER RECOMMENDED that the final order suspend Raymond

Wantroba’s employment without pay through the end of the

2013-2014 School Year.

DONE AND ENTERED this 4th day of December, 2013, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of December, 2013.

ENDNOTES

1/ There was no testimony as to the type of lock on their shared

locker, and there was no evidence as to who had a key or

combination to the lock.

2/ Respondent testified that Mr. Brennan saw the panties during

lunch and said he wanted to put them in S.R.’s locker. That

testimony is rejected based on Mr. Brennan’s credible testimony

that he knew nothing about the panties until the next day.

3/ The administrators at Lyons Creek had counseled Mr. Brennan

and Respondent about lack of supervision of the boys’ locker

room. In response, Respondent communicated information to the

school principal about Mr. Brennan’s conduct. As a result, the

relationship between Mr. Brennan and Respondent was strained

COPIES FURNISHED:

Adrian Alvarez, Esquire

Eugene K. Pettis, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Branden M. Vicari, Esquire

Herdman and Sakellarides, P.A

29605 US Highway 19, North

Clearwater, Florida 33761

Matthew Carson, General Counsel

Department of Education

Suite 1244

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399-0400

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

Pam Stewart

Commissioner of Education

Department of Education

Suite 1514

Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399-0400

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.