15-003017TTS Broward County School Board vs. Robert Harry Konnovitch Status: Closed Recommended Order on Friday, January 8, 2016.

Summary: School Board proved by a preponderance of the evidence that just cause exists to terminate Respondent's employment as a teacher for misconduct, incompetency, and gross insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 3017TTS

ROBERT HARRY KONNOVITCH,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Ad ministrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on October 20, 2015, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tria Lawton - Russell, Esquire

The School Board of B roward County

14th Floor

6 00 Southeast Thi rd Avenue

Fort Lauderdale, Florida 33301

For Respondent: Robert Konnovitch , pro se

Unit 301

5740 Rock Island Road

Tamarac, Florida 33319

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to terminate

RespondentÓs employment as a teacher.

PRELIMINARY STATEMENT

By letter dated April 22, 2015, Petitioner, Broward Coun ty

School Board (ÐSchool BoardÑ) , notified Respondent,

Robert Konnovitch (ÐRespondentÑ), of the School BoardÓs intent to

suspend without pay and terminate his empl oyment. On May 6,

2015, Respondent timely requested an administrative hearing. On

May 19, 2015, at its scheduled meeting, the School Board took

action to suspend and terminate RespondentÓs employment as a

teacher. Subsequently, the School Board referred the matter to

the Division of Administrative Hearings (ÐDOAHÑ) to assign an

Administrative Law Judge to conduct the final hearing.

The final hearing was initially set for August 11, 2015. On

July 24, 2015, the School Board filed an unopposed motion to

continue the final hearing. On July 31, 2015, the undersigned

entered an Order resetting the final hearing for October 20

and 21, 2015.

The Administrative Complaint contains certain factual

allegations, and based on those factual allegations, the School

Board charged Respondent with the following six counts: (1) Just

Cause; (2) Misconduct in Office; (3) Incompetency;

(4) Immorality; (5) Gross Insubordination; and (6) Violation of

School Board Policy 4008(B). 1/

The final hearing commenced as scheduled on October 20,

2015, with both parties present. At the hearing, the School

Board presented t he testimony of M.Z., B.S., B.F., A.S., E.M.,

A.S. , M.I., J.B., E.W., Hillary Gottlieb, Rubie Rachel,

Barton Christopher Duhart, and Joanne Seltzer. The School

BoardÓs Exhibits 1 through 25 were received into evidence.

Respondent testified on his own be half. RespondentÓs Exhibits

1 through 4 and 6 through 10 were received into evidence .

At hearing, the undersigned granted the School BoardÓs ore

tenus request for official recognition of the recommended and

final orders issued in the case of Broward Coun ty School Board v.

Robert Konnovitch , Case No. 14 - 2696 TTS (Fla. DOAH Aug. 24, 2015;

Broward Cnty Sch. Bd. Oct. 13, 2015) .

At hearing, the parties agreed to file their proposed

recommended orders within 30 days after the filing of the final

hearing transcri pt at DOAH. The two - volume final hearing

Transcript was filed at DOAH on November 9, 2015. The School

Board timely filed a proposed recommended order, which was given

consideration in the preparation of this Recommended Order.

Respondent did not file a proposed recommended order.

On October 12, 2015, the parties filed their Joint

Pre - h earing Stipulation, in which they stipulated to certain

facts. These facts have been incorporated into this Recommended

Order as indicated below.

Unless otherwise indic ated, all rule and statutory

references are to the versions in effect at the time of the

alleged violations.

FINDING S OF FACT

1. The School Board is a duly - constituted school board

charged with the duty to operate, control, and supervise the

public s chools within Broward County, Florida.

2. At all times material to this case, Respondent was

employed by the School Board as a physical education teacher at

Riverglades Elementary Schoo l (ÐRivergladesÑ) , pursuant to a

Professional Services Contract, issu ed in accordance with section

1012.33(3)(a), Florida Statutes (2014).

3. At all times material to this case, RespondentÓs

employment with the School Board was governed by Florida law and

the School BoardÓs policies .

2007 - 2008 School Year

4. On February 13, 2008, the executive director of the

School BoardÓs Professional Standards and Special Investigative

Unit issued to Respondent a written reprimand based upon

allegations of assault and battery .

5. On February 13, 2008, the principal of Village

Elemen tary School, RespondentÓs employer at the time, held a

meeting with Respondent at which time Respondent was directed to:

1) Ðfollow the school wide discipline planÑ ; 2) Ð take a class in

Behavior Management and/or Classroom Management, such as

Ò Champs ÓÑ ; 3 ) Ðdiscipline with respect Ñ; and 4) Ðnot to yell at

childre n Ñ

2012 - 2013 School Year

6. On March 7, 2013, Barton Christopher Duhart, interim

principal at Riverglades, met with Respondent and directed that

his :

[ l ] anguage with all students be kept

profes sional at all times. Please refrain

from using language that is abusive or may be

easily misconstrued as being abusive toward

any students regardless of their behavior.

2013 - 2014 School Year

7 . On January 15, 2014, JoAnne Seltzer , interim principal

at Riverglades, held an informal conference with Respondent

regarding an alleged i ncident involving S.W., a fifth - grade

student in RespondentÓs physical education class . At that time,

it was alleged that Respondent had grabbed S.W.Ós arm, yelled at

her in he r ear, told her Ðto shut up ,Ñ and made inappropriate

remarks about the way she talks. In the conference summary

report issued on January 21, 2014, Principal Seltzer directed

Respondent to refrain from touching, embarrassing, screaming at,

or demeaning stu dents in the future.

8. The School Board proposed to suspend Respondent based on

the alleged incident involving S.W. Respondent requested an

administrative hearing to challenge the School BoardÓs proposed

action.

9. On August 24, 2015, following a on e - day hearing,

Administrative Law Judge F. Scott Boyd issued his Recommended

Order in the case of Broward County School Board v. Robert

Konnovitch , DOAH Case No. 14 - 2696 TTS. Based on the evidence

presented at the May 22, 2015, final hearing, Judge Boyd fo und ,

in pertinent part :

5. On January 10, 2014, Respondent was

attempting to move his students inside after

their time on the playground. One student,

S.W., was talking loudly and frustrating

RespondentÓs efforts. In response to this,

Respondent pulled down on S.W.Ós arm or wrist

and screamed ÐBe quiet! Ñ i n her ear.

6. S.W. was not physically harmed by this

incident and did not cry. However, when

asked about how the in cident made her feel,

she testified Ðnot good.Ñ

10. As a result of RespondentÓs conduct involving S.W. and

evidence presented at that hearing , Judg e Boyd concluded that

Respondent was guilty of misconduct in office, incompetency, and

insubordination, and recommended that RespondentÓs emplo yment be

suspended for ten days without pay.

11. Subsequently, the School Board entered a final order

adopting Judge BoydÓs Recommended Order.

12. The incident giving rise to the School BoardÓs proposed

termination of Respondent in the instant case occurred on

April 1, 2014. On April 1, 2014, M .Z. was a fifth - grade student

in RespondentÓs physical education class. Shortly before class

ended , M.Z. was misbehaving and got out of line.

1 3 . In r esponse to M.Z.Ós misbehavior , Respondent became

angry and threate ned to punch M. Z . in the face .

14 . Respondent , who was standing very close to M.Z., turned

around and yelled at M. Z . : ÐIf you donÓt get in line, then I

will punch you in the face.Ñ

15 . M.Z. was not physically harmed by this incident and did

not cry. However, he was scared by Respondent Ós threat ening

comment and got back in line .

16 . Respondent made the threatening comment in front of the

entire physical education class .

17 . RespondentÓs conduct was inappropriate and verbally

abusive . Respondent could certainly have project ed authorit y and

correct ed M.Z.Ós behavior without the need to resort to a

physical threat of violence . 2/

18. The persuasive and credible evidence adduced at hearing

establishes that Respondent is guilty of misconduct in o ffice in

violation of Florida Administrative Code Rule 6A - 5.056 .

19. By verbally threatening M.Z. with physical violence ,

Respondent violated Florida Administrative Code R ule s

6A - 10.081 (3)(a) and (e) by failing to make reasonable effort to

protect his students from conditions harmful to learning and

intentionally exposing a student to unnecessary embarrassment or

disparagement . Respondent also violated rules 6A - 5.056(2)(d) and

(e) by engaging in conduct which disrupt ed the studentsÓ learning

environment and reduced RespondentÓs ability to effect ively

perform duties.

20. The persuasive and credible evidence adduced at hearing

establishes that Respondent is guilty of incompetence in

violation of rule 6A - 5.056(3).

21. By verbally threatening M.Z. with physical violence,

Respondent failed to dis charge his required duties as a teacher

as a result of inefficien cy . Respondent was inefficient by

failing to p erform duties prescribed by law and by failing to

communicate appropriately with and relate to students.

22. The persuasive and credible evide nce adduced at hearing

establishes that Respondent is guilty of gross insu bordination in

violation of rule 6A - 5.056(4) by intentionally refusing to obey a

direct order, reasonable in nature, and given by and with proper

authority.

23. By failing to comp ly with the specific directives

detailed above, Respondent intentionally refused a direct order,

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

24. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent is guilty of immorality in

violation of rule 6A - 5.056(1).

25. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent is guilty of violating School

Board Policy 4008(B). No such policy was offered into evidence

at t he final hearing.

CONCLUSIONS OF LAW

26 . DOAH has jurisdiction of the subject ma tter and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

27 . Respondent is an instructional employee, as that term

is def ined in section 1012.01(2), Florida Statutes. Petitioner

has the authority to suspend and terminate instructional

employees pursuant to sections 1012.22(1)(f), 1012.33(1)(a), and

1012.33(6)(a).

28 . The School Board has the burden of proving , by a

prepo nderance of the evidence, that Respondent committed the

violations alleged in the Administrative Complaint and that such

violations constitute Ðjust causeÑ for dismissal.

§ § 1012.33(1)(a) and (6), Fla. Stat.; Dileo v. Sch. Bd. o f Dade

Cnty . , 569 So. 2d 8 83, 884 (Fla. 3d DCA 1990) .

29 . The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280 n. 1 (Fl a. 2000). The

preponderance of the evidence standard is less stringent than the

standard of clear and convincing evidence applicable to loss of a

license or certification. Cisneros v. Sch. Bd. o f Miami - Dade

Cnty. , 990 So. 2d 1179 (Fla. 3d DCA 2008) .

30 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); McMillian v. Nassau Cnty. Sch. Bd. ,

629 So. 2d 226, 228 (Fla. 1st DCA 1993).

31 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be terminated during the

term of their employment contract o nly for Ðjust cause.Ñ

£ 1012.33(1)(a) and (6), Fla. Stat. ÐJust causeÑ is defined in

section 1012.33(1)(a) to include Ðmisconduct in office , Ñ

Ðincompetency,Ñ and Ðgross insubordination .Ñ

32 . Section 1001.02(1), Florida Statutes, grants the State

Boa rd of Education authority to adopt rules pursuant to

s ections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

33 . Consistent with this rulemaking authority, the State

Board of Education has defined Ðmisconduct in officeÑ in

rule 6A - 5.056(2), which provides:

(2) ÐMisconduct in OfficeÑ 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 6B - 1.001, F.A.C.;

(b) A violation of the Princ iples of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that redu ces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

34 . Rule 6 A - 10.080 , titled ÐCode of Ethics of the Education

Profession in Florida,Ñ provides:

(1) The educator values the worth and

dignity of every person , the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

( 2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and inte grity.

(3) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

35 . While rule 6A - 5.056(2)(a) provides that violation of

the Code of Ethics rule constitutes Ðmisconduct,Ñ it has been

frequently noted that the precepts set forth in the above - cited

ÐCode of EthicsÑ are Ðso general and so obviously aspirational as

to be of little practical use in defining normative behavior.Ñ

Miami - Dade Cnty. Sch. B d . v. Lantz , Case No. 12 - 3970 (Fla. DOAH

July 29, 2014).

36 . Rule 6A - 5.056(2)(b) incorporates by reference

rule 6A - 10.081 , which is titled: ÐPrinciples of Professional

Co nduct for the Education Profession in Florida.Ñ

Rule 6A - 10.081(3)(a) p rovides, in pertinent part:

(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 studentÓs mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

37 . Consistent with its rulemaking authority, the

State Board of Education has defined ÐincompetencyÑ in

rule 6A - 5.056(3), which provides, in pertinent part:

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) ÐInefficienc yÑ means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. Failure to communicate appropriately with

and relate to students.

38 . Consistent with its rulemaking authority, the State

Board of Education has defined Ðgross insubordinationÑ in

rule 6A - 5.056(4), which provides:

(4) ÐGross insubordinationÑ means the

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority; misfeasance, or malfeasance

as to involve failu re in the performance of

the required duties.

39 . Consistent with its rulemaking authority, the State

Board of Education has defined Ð immoralityÑ in r ule 6A - 5.056( 1 ) ,

which provides:

( 1) ÐImmoralityÑ means conduct that is

inconsistent with the st andards 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 individualÓs

service in the community .

40 . Turning to the present case, the School Board proved by

a preponderance of the evidence that Respondent i s guilty of

misconduct in office in violation of rule 6A - 5.056(2). As

detailed above, the School Board proved by a preponderance of the

evidence that Respondent is guilty of misco nduct in office, in

that he failed to make reasonable effort to protect students from

conditions harmful to learning and engaged in conduct which

disrupted the studentsÓ learning environment and reduced

RespondentÓs ability to effectively perform duties .

41 . The School Board proved by a preponderance of the

evidence that Respondent is guilty of incompetence in violation

of rule 6A - 5.056(3). As detailed above, Respondent was

inefficient by failing to perform duties prescribed by law, and

by failing to communicate appropriately with and relate to

students.

42 . The School Board proved by a preponderance of the

evidence that Respondent is guilty of gross insubordination in

violation of rule 6A - 5.056(4) by intentionally refusing to obey a

direct ord er, reasonable in nature, and given by and with proper

authority.

43. The School Board failed to prove by a preponderance of

the evidence that Respondent violated School Board Policy

4008(B).

44. The School Board failed to prove by a prepond erance of

the evidence that Respondent is guilty of immorality in violation

of rule 6A - 5.056(1).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board enter

a final order upho lding the terminati on of RespondentÓs

employment. 3/

DONE AND ENTERED this 8th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of January , 2016 .

ENDNOTE S

1/ Typogr aphical errors appear in the Administrative Complaint ,

numbering ÐIncompetencyÑ as Count 2, " Immorality " as Count 3 ,

ÐGross InsubordinationÑ as Count 4, and ÐSchool Board Policy

4008(B)Ñ as Count 5 when , in fact, they are Counts 3 through 6,

respectively.

2/ In the Joint Pre - h earing Stipulation, Respondent admitted to

Ðhitting M.Z. in the chest area.Ñ However, a t hearing, M.Z. did

not testify to any physical contact between him and Respondent on

April 1, 2014. The persuasive and credible evidence adduce d at

hearing establishes that at most, there was slight, inadvertent

physical contact between Respondent and M.Z. at the time of the

subject April 1, 2014, incident when Respondent verbally

threatened M.Z. At that time, Respondent inadvertently and

uninte ntionally physically ÐbumpedÑ M.Z. in the chest area .

3/ The c onduc t identified above by the undersigned involving

Respondent prior to the incident involving M.Z., was admissible

and relevant to prove the material facts at issue with regard to

the allega tions of gross insubordination and the appropriate

recommended penalty, only. The undersigned rejects the School

BoardÓs contention that such conduct and other alleged prior

conduct was admissible and relevant pursuant to section

120.57(1)(d) to show Ðpro of of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.Ñ

COPIES FURNISHED:

Tria Lawton - Russell, Esquire

The School Board of Broward County

14th Floor

600 Southeast Thi rd Avenue

Fort Lauderdale, F lorida 33301

(eServed)

Robert Konnovitch

Unit 301

5740 Rock Island Road

Tamarac, Florida 33319

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue Floor 10

Fort Lauderdale, Florida 33301 - 3125

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Stree t

Tallahassee, Florida 32399 - 0400

(eServed)

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 fil ed with the agency that

will issue the Final Order in this case.