08-005491TTS Miami-Dade County School Board vs. Kenneth R. Mills Status: Closed Recommended Order on Monday, July 20, 2009.

Summary: Respondent's lack of classroom decorum, taking and maintaining photos of female students, and video of class in an "out of control" situation demonstrate violations of rules and school board policies constituting just cause for termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-5491

)

KENNETH MILLS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on

March 30, 2009, by video teleconference with the parties

appearing from Miami, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Kenneth Mills, pro se

17890 West Dixie Highway, Number 703

Miami, Florida 33160

STATEMENT OF THE ISSUE

Whether Respondent, Kenneth Mills (Respondent), committed

the violations alleged in the Notice of Specific Charges filed

January 9, 2009, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 18, 2008, Petitioner, Miami-Dade County School

Board (School Board or Petitioner) issued a letter that notified

Respondent that it had taken action to suspend him without pay

and to initiate dismissal proceedings against him. The notice

further provided that the action was being taken based upon just

cause, including, but not limited to: misconduct in office; and

violation of School Board Rules 6Gx13-4A-1.21, Responsibilities

and Duties, and 6Gx13-4A-1.213, Code of Ethics. By letter dated

October 23, 2008, Respondent requested a hearing to challenge the

action of the School Board. The matter was then forwarded to the

Division of Administrative Hearings for formal proceedings on

November 3, 2008. The case was initially scheduled for

February 25, 2009, and an Order Requiring Notice of Specific

Charges was entered on December 2, 2008. Petitioner's request

for additional time to file the Notice of Specific Charges was

granted. On January 9, 2009, the Notice of Specific Charges was

filed and alleged, in pertinent part:

6. At all times material hereto, Respondent

was employed by Petitioner as a teacher

within the school district of Miami-Dade

County, Florida, pursuant to a professional

service contract and subject to Florida

Statutes, the regulation issued by the

Florida State Board of Education, the

policies and procedures of the School Board

and the provisions of the UTD [United

Teachers of Dade] Contract.

7. At all times material hereto, Petitioner

employed Respondent as a Teacher pursuant to

a professional service contract. Respondent

taught Math at Miami Lakes Educational Center

("Miami Lakes").

8. On or about February 19, 2008, school

administrators at Miami Lakes discovered

numerous photographs of female students in

Respondent's classroom which included a

poster-size photograph of a female student.

Respondent accepted locks of students' hair

and affixed them to the photographs. School

administrators also discovered a student's

picture I.D. in Respondent's desk drawer.

9. A search of Respondent's District

assigned computer revealed additional student

photographs and other inappropriate images.

Many of the photographs depicted Respondent

with his arms around female students. Also

discovered were photographs Respondent took

of students posing on his desk with one

student wearing a T-shirt with the words "I

HAVE A PUSSY, SO I MAKE THE RULES."

10. The matter was assigned to the Civilian

Investigation Unit for investigation (SPAR

Case No. N-09506). After interviewing

several witnesses including Respondent, the

investigator found probable cause that

Respondent violated School Board Rule 6Gx13-

4A.1.21 Responsibilities and Duties and

6Gx13-4A.1.213 Code of Ethics .

11. On or about July 24, 2008, a conference-

for-the-record was held with Respondent in

the Office of Professional Standards ("OPS")

to address the investigative findings and his

future employment with M-DCPS [Miami-Dade

County Public Schools]. After consulting

with several administrators, OPS recommended

to terminate Respondent's employment.

12. On or about September 5, 2008,

Respondent was advised of the recommended

disciplinary action and of his right to seek

a final review by the Superintendent or his

designee. Respondent requested such a review

and the Superintendent's designee approved

the recommended disciplinary action.

13. On or about September 26, 2008, a

meeting prior to School Board action was held

with Respondent during which he was advised

of the recommended disciplinary action.

Subsequently, on or about October 1, 2008,

Respondent was notified by letter that the

Superintendent of Schools was recommending to

the School Board to suspend him without pay

and initiate dismissal proceedings. The

letter further notified Respondent that the

reason for the recommendations included, but

was [sic] not limited to, misconduct in

office, and violations of School Board Rules

6Gx134A-1.21, Responsibilities and Duties and

6Gx13-4A-1.213, Code of Ethics .

14. Petitioner, at its regularly scheduled

meeting on October 15, 2008, took action to

suspend Respondent without pay and initiate

dismissal proceedings for just cause

including, but not limited to, misconduct in

office and violations of those School Board

Rules set forth above. Respondent was

notified of the Board action by letter dated

October 16, 2008.

Based upon the foregoing factual allegations, Petitioner set

forth four counts itemizing the violations claimed: Count I

alleged misconduct in office as that term is defined by Florida

Administrative Code Rule 6B-4.009; Count II alleged a violation

of School Board Policy 6Gx13-4A-1.21; Count III alleged a

violation of School Board Policy 6Gx13-4A-1.213; and Count IV

alleged a violation of School Board Policy 6Gx13-4A-1.09.

At the hearing, Petitioner presented the testimony of the

following witnesses: Bridget McKinney, former Assistant

Principal at Miami Lakes; Terri Chester, an investigator at the

Civilian Investigative Unit; James Parker, Principal at Miami

Lakes; and Dr. Milagros Hernandez, District Director for the

School Board's Office of Professional Standards. Petitioner's

Exhibits 1-19 and 21-30 were admitted into evidence. Respondent

testified on his own behalf. Respondent's Exhibits 3, 9-11, 13,

15, and 17 were also received in evidence.

At the conclusion of the hearing, the parties were granted

ten days from the date of the filing of the transcript within

which to file their proposed recommended orders. The Transcript

of the final hearing was filed with the Division of

Administrative Hearings on June 12, 2009. Thereafter, the School

Board timely filed a Proposed Recommended Order that has been

considered in the preparation of this Recommended Order.

Respondent filed a letter requesting an expeditious order.

FINDINGS OF FACT

1. Petitioner is a duly constituted entity charged with the

responsibility and authority to operate, control, and supervise

the public schools within the Miami-Dade County Public School

District. As such, it has the authority to regulate all

personnel matters for the school district, including those

personnel decisions affecting the professional teaching staff at

Miami Lakes.

2. At all times material to the allegations of this case,

Respondent, Kenneth Mills, was an employee of the School Board

and was subject to the disciplinary rules and regulations

pertinent to employees of the school district.

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

employed by Petitioner and was assigned to teach mathematics at

Miami Lakes. All acts complained of occurred during Respondent's

tenure at Miami Lakes.

4. During the 2007-2008 school year, Bridget McKinney was

assigned to duties as an assistant principal at Miami Lakes.

Among her responsibilities was the task of assuring that

classrooms were ready for an open house at the school. The

school had been chosen to be the site of a "town hall meeting."

Respondent's classroom was among those rooms to be used for the

session, and he was notified to have the room straightened and

ready to receive the public.

5. During an inspection of Respondent's classroom in final

preparation for the meeting, Ms. McKinney discovered numerous

photographs of Respondent hugging students, a large poster of a

female student, and locks of hair taped to a cabinet with notes

attached.

6. Ms. McKinney removed the items described above and went

to place them in Respondent's desk. When she opened the desk

drawer, Ms. McKinney discovered more pictures of female students.

One of the photographs showed a female student wearing a t-shirt

that depicted the words, "I HAVE THE PUSSY, SO I MAKE THE RULES."

7. Additional photos of female students showed one standing

on Respondent's desk. Respondent took a picture of a female

student standing on his desk. The picture was taken after hours.

The student was not enrolled in Respondent's class at the time

the photo was taken. Respondent claimed the student made the

unsolicited visit to his classroom because "he looked lonely."

8. One picture stored on Respondent's district-owned

computer showed a female student with an added "I Love You"

border around the photo.

9. Respondent admitted that he possessed a school

identification badge of a female student who was also shown in

the poster-size photo Ms. McKinney removed from Respondent's

wall.

10. After Ms. McKinney reported her discoveries to the

principal, James Parker, Respondent's computer was confiscated

and turned over to the school investigators to conduct an

analysis of the hard drive content. After retrieving the data,

images were stored on a DVD, and the matter was turned over to

the Civil Investigation Unit for further review.

11. Respondent was notified of the on-going investigation

in writing and was placed on alternate assignment at Region

Center I.

12. The investigation of the matter was assigned to Terri

Chester. Ms. Chester reviewed the images from the DVD. The DVD

stored photos and videos that were taken by Respondent. The

images depicted: several provocative pictures with nudity or

partial nudity; the picture of the female student with the t-

shirt proclaiming "I HAVE THE PUSSY, SO I MAKE THE RULES;" audio

of Respondent calling a student "nerd;" students who do not want

to be video taped by Respondent who he challenges; Respondent

proclaiming that video will be posted to You Tube by the next

day; and other classroom activities that are inappropriate such

as students running around the room, climbing on chairs, and

attempts made by one student trying to staple other students in

the back. Throughout the depicted images, Respondent does not

redirect students to appropriate activities and does not assist

them in any mathematics-related endeavor. Based upon the

foregoing, Ms. Chester concluded that Respondent's conduct

violated School Board rules.

13. When presented with the findings of Ms. Chester's

investigation, Respondent sought additional inquiry into the

allegations against him. Ms. Chester then reviewed all

information Respondent presented. Afterward, Ms. Chester

referred the matter to the OPS.

14. Dr. Hernandez, District Director at OPS, conducted a

conference for the record (CFR) with Respondent. The purpose of

the CFR was to discuss the investigative findings and

Respondent's future employment with Petitioner. Throughout the

investigation and review process, Respondent has not denied

taking the pictures and videos. Moreover, when confronted with

the images from his district-owned computer he provided no

plausible explanation for the materials.

15. Subsequent to the CFR, Mr. Parker as well as other

staff from the region office recommended termination of

Respondent's employment with the school district.

16. Among the reasons Mr. Parker recommended termination

was Respondent's failure to abide by the educational principles

concerning teacher conduct. Mr. Parker determined that

Respondent's conduct impaired his effectiveness as a teacher

since he failed to properly manage students, displayed an

inappropriate familiarity with students, and took and retained

improper images.

17. At its meeting on October 17, 2008, Petitioner accepted

the recommendation to suspend Respondent and initiated dismissal

proceedings against him.

18. Thereafter, Respondent timely requested an

administrative hearing to contest the proposed dismissal.

19. Respondent does not deny displaying the photographs in

his classroom or the retention of locks of hair. Moreover,

Respondent does not deny that he took the images that were stored

on his district-owned computer. Photography is one of

Respondent's main interests. He sought to combine his interest

in photography with his classroom responsibilities.

20. Finally, Respondent maintains that he did not do

anything wrong and that he is the victim of an administrator

trying to get him fired. Respondent advised that it was his

intention to have a disruptive class at the time portions of the

video were shot to add some levity to the class work. Respondent

stated that during the two hour blocks of teaching allocated to

each class that it was his desire to have the students have some

levity and laugh.

21. The UTD negotiated terms and conditions of employment

for Petitioner and its teachers. Under the terms of the

collective bargaining agreement, also known as the UTD contract,

"any member of the instructional staff shall be suspended or

dismissed at any time during the school year, provided that such

charges against him/her are based upon Florida Statutes."

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

23. Petitioner bears the burden of proof in this cause to

establish by a preponderance of the evidence that Respondent

committed the violations alleged. See McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

24. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942).

25. Section 1012.33, Florida Statutes (2008), provides, in

pertinent part:

. . . All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal during

the term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

26. In this case "just cause" includes those items

specifically addressed by the statute,but also includes other

conduct that may be denoted by the "not limited to" language of

the statute. See Dietz v. Lee County School Board , 647 So. 2d

217 (Fla. 2nd DCA 1994). Also, “misconduct in office” in the

instant matter must be considered in relation to the failure to

comply with School Board rules.

27. "Misconduct in office" is defined by Florida

Administrative Code Rule 6B-4.009, as:

. . . a violation of the Code of Ethics of

the Education Profession as adopted in Rule

6B-1.001, FAC,, and the Principals of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, FAC., which is so serious as to impair

the individual's effectiveness in the school

system.

28. Florida Administrative Code Rule 6B-1.001, 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 educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one’s

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.

29. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(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.

30. An agency's interpretation of the policies it is

charged to administer is entitled to deference and should not be

overturned as long as the interpretation is within the range of

reasonable alternatives. See Rollison v. City of Key West , 875

So. 2d 659 (Fla. 3rd DCA 2004).

31. School Board Rule 6Gx-4A-1.21 provides in part:

All persons employed by The School Board of

Miami-Dade County, Florida are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system. Unseemly conduct or the

use of abusive and/or profane language in the

workplace is expressly prohibited.

32. School Board Rule 6Gx-4A-1.213, Code of Ethics,

provides in part:

Each employee agrees and pledges:

1. To abide by this Code of Ethics, making

the well-being of the students and the honest

performance of professional duties core

guiding principles.

2. To obey local, state and national laws,

codes and regulations.

3. To support the principles of due process

to protect the civil and human rights of all

individuals.

4. To treat all persons with respect and to

strive to be fair in all matters.

5. To take responsibility and be accountable

for his or her actions.

6. To avoid conflict of interest or any

appearance of impropriety.

7. To cooperate with others to protect and

advance the District and its students.

8. To be efficient and effective in the

delivery of job duties.

* * *

V. CONDUCT REGARDING STUDENTS

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.

* * *

5. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

* * *

8. Shall not exploit a relationship with a

student for personal gain or advantage.

33. School Board Rule 6Gx13-4-1.09 provides, in part:

Nothing is more important to the Miami-Dade

County Public Schools than protecting the

physical and emotional well-being of its

students. This policy is developed to ensure

that all School Board employees will conform

to the highest professional, moral, and

ethical standards in dealing with students on

or off school property.

As such, all School Board personnel are

strictly prohibited from engaging in

unacceptable relationships and/or

communications with students. Unacceptable

relationships and/or communications with

students include, but are not limited to the

following: dating; any form of sexual

touching or behavior; making sexual, indecent

or illegal proposals, gestures or comments;

exploiting an employee-student relationship

for any reason; and/or demonstrating any

other behavior which gives an appearance of

impropriety.

34. Count I of the Notice of Specific Charges alleged

misconduct in office. In this case, Petitioner has established

by a preponderance of the evidence that Respondent violated

School Board rules and the state standards for the conduct of

teachers to such a degree that his effectiveness as a teacher

with the Miami-Dade Public Schools has been impaired.

35. Count II of the Notice of Specific Charges alleged that

Respondent violated the School Board rule addressing an

educator's responsibilities and duties. It is concluded that

Respondent's behavior in this matter demonstrates conduct that

does not reflect credit on himself or the school system.

36. Count III of the Notice of Specific Charges alleged

that Respondent violated the School Board rule setting forth the

code of ethics. In this regard it is concluded that Respondent

failed to take responsibility for his actions, failed to treat

his students with appropriate respect, failed to maintain an

appropriate classroom decorum, and exposed a student to

disparagement.

37. Count IV of the Notice of Specific Charges alleged

Respondent abused his relationships with students. With regard

to this claim, it is concluded that not only did Respondent

encourage inappropriate behaviors, he perpetuated them by

documenting them on camera.

38. As reviewed in this matter, Petitioner has established

by a preponderance of the evidence that Respondent violated the

rules and policies of the School Board to support “just cause”

for disciplinary action.

39. It is important to note that Respondent did not deny

any of the activities and actions described in this case.

Moreover, he did not acknowledge anything "wrong" with his

behavior. Respondent claimed that taking pictures of students

was appropriate and none of the photos posted in his room were,

in and of themselves, inappropriate.

40. Given the professed lack of comprehension expressed by

Respondent, the following is noted:

a. In this state educators are held to a

high standard of ethical behavior.

b. An educator is responsible for the

decorum of his/her classroom.

c. Taking and maintaining photographic or

video images of students engaged in behaviors

that are not sanctioned is inappropriate.

d. Maintaining an environment that is

disruptive and nonconductive to learning

constitutes inappropriate classroom decorum.

e. Failure to recognize the

inappropriateness of such behaviors

demonstrates ineffectiveness in the school

system.

f. Failure to after-the-fact comprehend the

inappropriateness of the foregoing behaviors

demonstrates an indifference to the rules and

regulations that govern teacher conduct.

41. Misconduct may result when the conduct engaged in

"speaks for itself" in terms of its seriousness and its adverse

impact on the teacher's effectiveness. Proof of the conduct and

the failure to act appropriately may be considered proof of

impaired effectiveness. See Purvis v. Marion County School

Board , 766 So. 2d 492 (Fla. 5th DCA 2000) and Walker v. Highlands

County School Board , 752 So. 2d 127 (Fla. 2nd DCA 2000). In this

regard, not only did the principal expressed the impaired

effectiveness, but the conduct complained of also "speaks for

itself."

42. It is concluded that Respondent did not exercise sound

professional judgment and integrity. The video of the classroom

depicts an uncontrolled environment with students running around,

climbing on desks, attempting to staple one another, and yelling.

Respondent called one student "nerd" and attempted to video

students who, from their expression and demeanor, clearly did not

desire to be filmed.

43. Respondent did not adequately explain photographs of a

female student who posed standing on his desk during after hours.

No educational purpose could be served by such a remembrance.

Respondent was not directed to be the friend of the students. He

was challenged to educate them. Similarly, maintaining human

hair posted to a wall/cabinet in the room presumably as some type

of "keep sake" also served no educational purpose.

44. Respondent's behavior discredited himself and the

school district. Respondent was charged with avoiding behavior

that gives the appearance of impropriety. In this regard,

encouraging a female student to flaunt a t-shirt with an

inappropriate message, in and of itself sends an inappropriate

message to the student and those who viewed the photos that

perpetuated the image.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami-Dade County School Board

enter a Final Order terminating Respondent's employment with the

School District.

DONE AND ENTERED this 20th day of July, 2009, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of July, 2009.

COPIES FURNISHED :

Kenneth Mills

17890 West Dixie Highway, Number 703

Miami, Florida 33160

Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

M i a m i , F l o r i d a 3 3 1 3 2

Mr. Alberto M. Carvalho

Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1308

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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.