[Cite as Lanzo v. Campbell City School Dist. Bd. of Edn., 2010-Ohio-4779.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

RAYMOND LANZO,                )
                              )                            CASE NO. 09 MA 154
    PLAINTIFF-APPELLANT,      )
                              )
    - VS -                    )                                     OPINION
                              )
CAMPBELL CITY SCHOOL DISTRICT )
BOARD OF EDUCATION,           )
                              )
    DEFENDANT-APPELLEE.       )


CHARACTER OF PROCEEDINGS:                                  Civil Appeal from Common Pleas
                                                           Court, Case No. 08 CV 3229.


JUDGMENT:                                                  Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                                   Attorney James E. Lanzo
                                                           4126 Youngstown-Poland Rd.
                                                           Youngstown, OH 44514

For Defendant-Appellee:                                    Attorney James E. Roberts
                                                           100 Federal Plaza East
                                                           Suite 600
                                                           Youngstown, OH 44503




JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                           Dated: September 24, 2010
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DeGenaro, J.
       {¶1}    This timely appeal comes for consideration upon the record in the trial court
and the parties’ briefs. Appellant, Raymond Lanzo appeals the August 4, 2009 decision
of the Mahoning County Court of Common Pleas, which adopted the June 24, 2009
magistrate's decision upholding the decision of Appellee, Campbell City School District
Board of Education, to terminate Lanzo's teaching contract.
       {¶2}    Lanzo argues that his use of corrective actions, such as the incident
involving a disruptive student that precipitated the Board's review, are appropriate and
necessary in order to maintain a productive and safe learning environment. Lanzo argues
that the trial court abused its discretion in upholding the termination decision when
Lanzo’s actions did not constitute "good and just cause" pursuant to R.C. 3319.16.
       {¶3}    Lanzo's physical intervention with a student merely for the purpose of
redirecting the student's attention was a violation of school policy and disproportionate to
the misbehavior involved. More importantly, the Board's termination decision was based
on Lanzo's cumulative misconduct over three years and not just on the "last straw"
incident. Lanzo's repeated misconduct constituted "good and just cause" for termination,
thus the trial court's decision was not an abuse of discretion and we affirm.
                             Facts and Procedural History
       {¶4}    Lanzo is a middle school teacher who was employed by the Board for the
2003-2004 school year and subsequent years, pursuant to renewed one-year limited
teaching contracts. The Board placed Lanzo on administrative leave on November 30,
2007, after the parent of a student filed a complaint that Lanzo had used inappropriate
physical discipline with her son three days earlier. During the Board's investigation of the
incident, it was also alleged that during the 2007-2008 school year, Lanzo had frequently
pulled the ears of his male students and twisted their hair.
       {¶5}    On January 31, 2008, the Board adopted a resolution suspending Lanzo's
employment effective February 1, 2008, and scheduling a termination decision in the
event that Lanzo did not request a hearing. Lanzo requested a public hearing and the
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appointment of an impartial referee, pursuant to R.C. 3319.16 and R.C. 3319.161. The
parties agreed on a referee, who submitted his findings of fact and recommendations to
the Board after three days of hearings in April, 2008.
       {¶6}   The referee found that on November 27, 2007, Lanzo's fifth grade class and
another teacher's fifth grade class were viewing a video together, during which one of the
other teacher's students was talking. The other teacher called out the student's name,
but the student did not cease talking. Without the other teacher's permission, Lanzo
grabbed the student by the arm or shirt, forcing him to stand, pulled the student to the
front of the room, put his hand on the student's chin and pointed the student's face toward
the video screen. The referee found that Lanzo's use of physical force violated the
Board's policy against corporal punishment. The referee also found that Lanzo had
twisted the hair and pulled the ears of some male students on several occasions during
the school year leading up to November 27, 2007. The referee found that Lanzo's
actions were in direct violation of the Board's policy against the inappropriate touching of
students.
       {¶7}   The referee's findings of fact included the Board's prior discipline and
corrective actions against Lanzo for four previous instances of misconduct. First, on
September 6, 2005, Lanzo had been reprimanded for misconduct and disrespect at a
school function, specifically, raising his voice to a student's grandparent. Second, on
March 13, 2006, Lanzo had been reprimanded for misconduct, disrespect and
insubordination, specifically, leaving his classroom unattended and interrupting a private
meeting between the principal, a teacher and a parent, and leaving his classroom
unattended a second time and twice interrupting another teacher's class. Third, on March
17, 2006, Lanzo was placed on administrative leave pending investigation, after the
teacher's union president reported to the principal that Lanzo had indicated to the
president that Lanzo would slash the principal's tires. This resulted in Lanzo signing a
"last chance" agreement with the school on April 26, 2006, consenting to possible
termination without the right to appeal, for any further misconduct through the end of the
2006-2007 school year. Although the termination provisions of the agreement were to
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expire at the end of the 2006-2007 school year, the agreement specified that Lanzo's
history of misconduct could still be considered in any future disciplinary actions. Lanzo
returned from administrative leave on May 1, 2006.
       {¶8}   The fourth and final prior disciplinary incident occurred on June 7, 2006,
when Lanzo left his class unattended, and an altercation between students occurred.
Lanzo equivocated in his explanation to the principal regarding the sequence of events
that led up to the altercation, and his explanation of his exact whereabouts was
contradicted by security camera footage. The Superintendant allowed Lanzo a "second
last chance," and negotiated twenty days of unpaid administrative leave, rather than
immediate termination. Lanzo was not cited for any further misconduct until the present
citations during the 2007-2008 school year.
       {¶9}   The referee concluded that Lanzo's most recent incidents of misconduct
involved the physical mistreatment of students in violation of the Board's policies, which
constituted good and just cause for terminating his teaching contract. The referee further
found that the cumulative impact of Lanzo's ongoing misconduct necessitated his
termination. On July 9, 2008, the Board unanimously adopted the referee's findings and
recommendation, and terminated Lanzo's teaching contract.
       {¶10} Lanzo filed a timely complaint with the Mahoning County Court of Common
Pleas, appealing the decision of the Board. The magistrate considered the parties' briefs
and oral arguments as well as the record of the Board's proceedings. On June 24, 2009,
the magistrate concluded that Lanzo had been afforded all procedural rights under R.C.
3319.16, that the referee's factual findings were supported by the record, and that
substantial and credible evidence supported the conclusion that the Board terminated
Lanzo's teaching contract for good and just cause.
       {¶11} Lanzo timely filed Objections to the Magistrate's Decision, presenting
arguments regarding due process, findings of fact, as well as the argument that Lanzo
presently asserts on appeal: that his conduct did not constitute "good and just cause" for
termination pursuant to R.C. 3319.16. On August 4, 2009, the trial court upheld the
Magistrate's Decision and denied Lanzo's prayer for relief.
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           R.C. 3319.16 Contract Termination for "Good and Just Cause"
       {¶12} In his sole assignment of error on appeal, Lanzo asserts:
       {¶13} "The Appellants [sic] actions were not an act of gross inefficiency,
immorality, or good cause as defined by the statute and thus the action of the board was
unlawful, and the trial Court's ruling upholding the actions of the board was an abuse of
discretion."
       {¶14} When a school board commences proceedings to terminate a teacher's
contract, the teacher may request a hearing before the board or before an appointed
referee. R.C. 3319.16; R.C. 3319.161. When the proceeding is conducted by a referee,
a board must accept the referee's findings of fact, unless they are against the greater
weight or preponderance of the evidence. Aldridge v. Huntington Local School Dist. Bd.
of Edn. (1988), 38 Ohio St.3d 154, 527 N.E.2d 291, at paragraph one of the syllabus.
The school board has the discretion to accept or reject the referee's recommendation,
unless the school board’s decision is contrary to law. Id. at paragraph two of the syllabus.
       {¶15} A teacher whose contract has been terminated pursuant to the above
proceeding may appeal the decision through an original action before the court of
common pleas. R.C. 3319.16. The trial court has the discretion to hold additional
hearings and consider additional evidence if necessary, but it may not reverse a board's
termination order unless the order is against the manifest weight of the evidence. See
Oleske v. Hilliard City School Dist. Bd. of Edn. (2001), 146 Ohio App.3d 57, 62, 764
N.E.2d 1110. Unless a school board "violated a statutory right or constitutional obligation,
a trial court may not substitute its judgment for that of the board." Kitchen v. Bd. of Edn. of
the Fairfield City School Dist., 12th Dist. No. CA2006-09-234, 2007-Ohio-2846, at ¶17,
quoting Bertolini v. Whitehall City School Dist. Bd. of Edn. (2000), 139 Ohio App.3d 595,
604, 744 N.E.2d 1245.
       {¶16} An appellate court's review of a termination proceeding under R.C. 3319.16
is limited to a determination of whether the trial court's decision constituted an abuse of
discretion. Yarian v. Struthers City School Bd. of Edn. (June 29, 1988), 7th Dist. No. 87
C.A. 95, at *2. Absent an abuse of discretion, “the court of appeals may not engage in
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what amounts to a substitution of judgment of the trial court in an R.C. 3319.16
proceeding." Graziano v. Bd. of Edn. of Amherst Exempted Village School Dist. (1987),
32 Ohio St.3d 289, 294, 513 N.E.2d 282.
       {¶17} Lanzo does not present an argument against any findings of fact, and only
argues that his actions did not amount to gross inefficiency, immorality, or good cause as
defined by R.C. 3319.16. Because the decisions below did not make any findings as to
“gross inefficiency” or “immorality,” the issue before this court is limited to whether the trial
court abused its discretion in determining that Lanzo's actions, as described by the
referee, the Board, and the magistrate, constituted "good and just cause" for termination
as intended by R.C. 3319.16.
       {¶18} What constitutes "good and just cause" can depend on the context and the
unique facts of each case. The Ohio Supreme Court has explained that the concept of
"good and just cause" must involve a "fairly serious matter" that is of the same magnitude
as the other terms listed in R.C. 3319.16, such as "gross inefficiency or immorality" or
"willful and persistent violations." Hale v. Bd. of Edn., City of Lacaster (1968), 13 Ohio
St.2d 92, 98-99, 42 O.O.2d 286, 234 N.E.2d 583.
       {¶19} In Oleske, a teacher was cited for multiple instances of telling jokes to
students that contained sexual content and ethnic insensitivity, and multiple instances of
intentionally mispronouncing a fellow teacher's name as "turd" in front of her students.
Oleske at 59-60. The teacher had an exemplary teaching record for over twenty years,
with no previous incidents of misconduct. Id. at 62. The school board accepted the
referee's recommendation that the teacher's actions constituted "good and just cause" for
termination. Id. at 60. The trial court affirmed the board's decision, and the Tenth District
further affirmed, finding that it was not an abuse of discretion to find that the teacher's
actions constituted a "fairly serious matter" and rose to the level of "good and just cause"
for termination. Id. at 64-65.
       {¶20} In James v. Trumbull Cty. Bd. of Edn. (1995), 105 Ohio App.3d 392, 663
N.E.2d 1361, an elementary school teacher in a multi-handicapped unit exercised
aversive behavior management techniques, such as placing a towel over a student's head
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to focus the student's attention or using hot sauce to dissuade a student from eating
objects such as plastic, bolts or feces. James at 394. Upon rejecting the referee's
recommendation, the school board terminated the teacher's contract. The trial court
reversed the board's decision, and the Eleventh District affirmed, finding that the teacher
had been given no warning that her techniques should be changed, the teacher's
techniques were recognized, albeit disfavored, treatment protocols, and the school did not
produce evidence of any policy that prohibited the teacher's conduct. Id. at 398-399.
       {¶21} Conversely, in Beranek v. Martins Ferry City School Dist. Bd. of Edn. (Jan.
20, 1989), 7th Dist. No. 88-B-11, the trial court affirmed the school board’s decision to
terminate a male teacher even though the board failed to produce evidence of a policy
that defined what constituted "inappropriate touching." Id. at *4. This Court found
common sense dictated that the teacher intentionally touching female students' buttocks
or chests was inappropriate, and that such actions justified the school board's decision to
terminate the teacher's contract pursuant to R.C. 3319.16, even in the absence of a policy
defining “inappropriate touching”. Id. at *6. Finally, in Yarian, this Court held that a
teacher's repeated acts of insubordination, such as leaving school premises, failing to
attend meetings, excessive absenteeism, and telling falsehoods to attempt to excuse an
absence amounts to "other good and just cause" for termination, even if the conduct does
not violate an explicit rule or regulation of the school. Yarian, supra, at *4.
       {¶22} Here, the facts that supported the conclusions of the referee, the Board and
the trial court, were various instances of misconduct by Lanzo, which required repeated
disciplinary and corrective actions by the Board. There were four prior incidents involving
Lanzo which resulted in discipline prior to the incident which triggered these proceedings.
       {¶23} On September 6, 2005, Lanzo was reprimanded for misconduct and
disrespect at a school function, specifically, raising his voice to a student's grandparent.
On March 13, 2006, Lanzo was reprimanded for misconduct, disrespect and
insubordination, specifically, leaving his classroom unattended and interrupting a private
meeting between the principal, a teacher and a parent, and leaving his classroom
unattended a second time and twice interrupting another teacher's class. From March 17
                                                                                      -8-


to May 1, 2006 Lanzo was placed on administrative leave, after voicing a threat to his
union president that Lanzo would slash the principal's tires. From August 30 through
September 28, 2006, Lanzo was placed on unpaid administrative leave, after Lanzo had
equivocated in his explanation to the principal regarding a June 7, 2006 incident where he
had left his classroom unattended and an altercation between students had ensued.
       {¶24} The final incident occurred on November 27, 2007.                  Lanzo used
unreasonable physical force to discipline another teacher's fifth-grade student for talking
during class, specifically by taking the student by the arm, forcing him to stand, pulling
him to the front of the room, and physically moving the student's head toward the video
being viewed in the classroom. During this investigation it came to light that also during
the 2007-2008 school year, Lanzo inappropriately touched his fifth-grade students on
several occasions, specifically by twisting their hair or pulling their ears.
       {¶25} Lanzo argues that his actions during the final incident did not directly
contravene school policy because they constituted a necessary corrective measure to
quell a disruptive student. Lanzo contends that the Board's termination of his contract in
response to this incident sends the message that teachers are not permitted to take the
necessary steps to maintain order in the classroom, and that such a message will lead to
unproductive and unsafe learning environments.
       {¶26} The referee found that Lanzo's conduct during the 2007-2008 school year
did in fact contravene the school's policy against corporal punishment and inappropriate
touching. Even if Lanzo's actions on November 27, 2007 did not meet the traditional
definition of corporal punishment, they nonetheless contravened the school's policy that
any discipline imposed must be proportionate to the student's misconduct. Moreover, the
Board's decision to terminate Lanzo's contract was not based solely on his misconduct
during the 2007-2008 school year, but also in consideration of his cumulative history of
repeated misconduct while employed by the Board.
       {¶27} Although Lanzo attempts to limit the focus of this appeal to his final acts of
misconduct, the Board rightfully considered Lanzo’s performance throughout the duration
of his employment. Unlike the teacher in Oleske, who was terminated even in light of her
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spotless twenty year record, Lanzo was repeatedly reprimanded for his misconduct
throughout his five years of teaching. In accordance with Beranek and Yarian, even if
some of Lanzo’s behavior did not violate an explicit rule or regulation of the school, it
nonetheless constituted good and just cause for termination. Moreover, his physical
contact with students did violate school policies against corporal punishment and
inappropriate touching, and thus also good and just cause for termination, unlike the
teacher in James.
       {¶28} Consideration of Lanzo's history of repeated insubordination and classroom-
management deficiencies, along with his final acts of misconduct, reasonably lead to the
conclusion that there was good and just cause for terminating Lanzo's teaching contract.
The trial court therefore did not abuse its discretion in upholding the Board's decision.
Accordingly, Lanzo's sole assignment of error is meritless, and the judgment of the trial
court is affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs.
