19-005144TTS Polk County School Board vs. Keith Alan Cook Status: Closed Recommended Order on Wednesday, February 26, 2020.

Summary: Respondent engaged in serious misconduct when, during a schoolwide lockdown drill, he proposed scenarios of how an active shooter could inflict far greater damage on students and faculty than the ?typical? shooter. Respondent's termination is justified.

P RELIMINARY S TATEMENT

On Aug ust 23, 2019, Petitioner issued a letter to Respondent informing

him of his immediate suspension from teaching at Lakeland High School, and

further informing him that the issue of his termination from employment would be addressed at the September 3, 2019, meeting of the Polk County

School Board ; and, if approved, the termination would become effective on

September 4, 2019. The stated basis for this action was that Respondent made remarks during a lockdown drill at the school that upset many of the

students . Generally speaking, the remarks concerned how to better inflict

damage on the maximum number of people in the event an active shooter

were present on campus. The students shared their experience with their

parents , other teachers , and administrators, whi ch resulted in action being

taken by Petitioner.

The August 23 , 2019, agency action letter from Petitioner informed

Respondent of his right to request an administrative hearing prior to

September 3, 2019. Respondent made his timely request for a hearing b y

letter dated August 30, 2019. The case proceeded to hearing, without delay,

on January 7, 2020.

At the January 7, 2020, hearing, Petitioner called students L.B., C.T.J.,

H.M., C.P.J., L.P., L.A., School Resource Officers Oscar Wesley and Justin Conaster , and Employee Relations Director Tony Kirk as witnesses.

Petitioner offered five exhibits, all of which were admitted into evidence.

Respondent testified on his own behalf and offered no exhibits.

A T ranscript of the proceedings was filed with DOAH on January 29,

2020. Petitioner filed its proposed recommended order on February 10, 2020.

Respondent did not file a proposed recommended order or any post - hearing

document.

References to the Florida Statutes are to the 2019 codification, unless

otherwise ind icated.

F INDINGS OF F ACT

1. Respondent was employed by Petitioner as a classroom teacher at

Lakeland High School and held an employment contract pursuant to

section 1012.33, Florida Statutes.

2. On August 16, 2019, Respondent was in his classroom with a g roup of

students during a lockdown drill. In the course of the drill, Respondent made a number of comments stating what he would do as an attacker to kill a

greater number of people. The facts are not in dispute , and the students '

testimony is generally co nsistent regarding the statements made by Respondent.

3. Respondent testified that, as a Marine, he had seen many terrible

things in his life and that he felt it was appropriate during the lockdown drill

to " get real " with his students. He was unhappy with the fact that many of

the students in his classroom did not seem to take the drill seriously ; were

seen texting, searching , and posting on social media sites ; and , generally ,

engaging in other unfocused behavior rather than paying attention to the drill t hat had been ordered by the school. While, in his mind, by making his

statements, he may have been acting in the best interest of his students '

welfare, his words went above and beyond what could reasonably be expected

to be appropriate language for a teac hing moment. The students ' reactions,

many of which appear below, demonstrate that Respondent went too far with

his statements and hypotheticals.

T HE S TUDENTS ' S TATEMENTS

4. Student L . B . testified as follows :

Q. What did Mr. Cook say?

A. He said if they were real, he -- if he were an

attacker, he would place certain bombs somewhere

and, like, he would use a special bomb to where,

like, spikes would shoot out. And where I was, I

said at first I was safe and then he said the spikes

part so it would get every one and then I wasn ' t safe

anymore. And I just felt uncomfortable in that

situation.

Q. Did what he sa id upset you?

A. Yes. I wanted to go home.

5. Student C . T . J . testified as follows:

Q. Okay. Can you tell us what happened that day?

A. Well, my fri end C., I believe, started the

conversation. And Mr. Cook answered: If I was a

shooter, I would have many body counts; I would

know where to place all the bombs at and all I would have to do is push a button, " boom, "

everyone ' s dead.

6. Student H . M . testi fied as follows:

Q. Can you tell us what happened that day?

A. I just remember Mr. Cook, like, saying, so, yeah,

like, I would put, like, a bomb in the corner. And then my friend L. was like, oh, I would be safe because I wasn ' t in -- because she wasn ' t in the

corner. And he said, no, I would put, like, nails in it so that it could get everyone in the class.

7. Student C . P . J . testified as follows:

Q. Can you tell us what happened with that?

A. We have lockdown drills regularly, so we ' re

in -- the lockdown d rill had started and, like, he

started talking and, basically, started explaining

like how he would be the best school shooter and

what he would do. He -- I remember he said that he would plant IEDs where the kids are supposed to hide and put shrapnel in the m, like nails and stuff

like that and he would fire a couple of rounds and

then they would -- kids would hide, the lockdown

would start and then he would set the IEDs off.

Q. Did he talk about how many people might be

killed?

A. Yeah. He -- I don ' t remembe r the number,

because, like, I don ' t have my statement in front of

me to refresh myself, but it was, like, a big number.

8. Student L . P . testified as follows:

Q. Were you present in his classroom on August 16

during a lockdown?

A. Yes, sir.

Q. Can you tell us what happened that day?

A. We were in the lockdown and some conversation was started. And what I heard was that if he was

going to be a school shooter, he would place bombs

in the corners where the kids would be and he would have a button he wou ld press and bombs would go off and kill as ma ny students as the bomb

could.

Q. Okay. Did -- did that concern you?

A. Yeah. It made me feel a little, like, disturbed at

the fact because I was, like, oh. Because I was

sitting there and I was, like, looking at my friend

when we both heard it and we were like, oh, th at ' s

not okay in the situation.

9. Student L . A . testified as follows:

Q. Can you tell us what happened at that time?

A. Yeah. So one of the students asked about

why we do lockdowns and Mr. Cook started

going -- talking how we do it because there are

school shooters, you know. And then I really wasn ' t

paying attention at that point and then I -- everyone

was silent. And then he started talking about what

he would have done instead of -- like that most

school shooters are kind of dumb and they, you

know, get caught and then talking about, you

know, bombing and things like that. That ' s all I

really remember. It was a long time ago. Sorry.

Q. Was he talking about how he would do it if he --

A. Uh - huh.

Q. And was he a little bit bragging about he would

know how to do it better?

A. Uh - huh.

10. Petitioner backed up each of the above student s ' live testimony with

the written statement each made shortly after the alleged lockdown incident.

11. Following a call from a parent regarding possibly inappropriate

statements made by Respondent, th e Lakeland p olice officer assigned to

Lakeland High School as the s chool r esource o fficer initiated an investigation

with additional personnel . The officers assigned to the investigation obtained

the written statements referred to above from each of the students who were

in the classroom when the reported incident occurred.

12. The student s ' statements developed the facts surrounding the

incident, and the police officer d etermined that several of the students were

" very disturbed " by what had occurred. The police officers considered the

situation a " serious matter. "

13. Based upon the information derived from the investigation,

representatives of the Lakeland Police Depart ment filed with the Polk

County Circuit Court a petition for a risk protection order naming

Respondent in this case as Respondent in those proceedings. The risk

protection order petition alleged that " Respondent poses a significant danger

of causing person al injury to themselves or others by having a firearm or any

ammunition in their custody or control or by purchasing, possessing, or

receiving a firearm or any ammunition. "

14. The petition further allege d that Respondent " engaged in an act or

threat of vi olence including , but not limited to , acts or threats of violence

against themselves; has used, or threatened to use, against themselves or

others any weapons; and has been the subject of proceedings under the Baker

Act. "

15. The petition was supported by portions of the students ' statements

that had been obtained during the investigation. On August 19, 2019, the

Polk County Circuit Court entered a r isk p rotection o rder directing

Respondent " to surrender to law enforcement officers serving this order all

fi rearms and ammunition that they own or have in their custody, control or

possession. "

16. Baker Act proceedings were also filed against Respondent , and the

c ourt entered an order in those proceedings. Pursuant to the order entered in

the Baker Act proceedi ngs, Respondent was transported to the Peace River

Center for evaluation .

17. By letter to Respondent dated August 23, 2019, Petitioner ' s a ssociate

s uperintendent for h uman r esources advised Respondent that the

s uperintendent was suspending him without pay and recommending

termination of his employment. Respondent timely requested a hearing, and

these proceedings are the result of that request.

18. Petitioner ' s d irector of e mployee r elations, Tony Kirk, testified that

Respondent ' s statements about how he wo uld do a better job of killing

students, and the public exposure t hose statements received in local media,

would make it difficult for Respondent to effectively function in a local school

setting. Further, Mr. Kirk explained the difficulty in getting a sch ool

administrator or principal to agree to have Respondent in their school. On

this point, Mr. Kirk testi fied as follows :

He made these statements about being a school

shooter and how he could do it better, why would we want him in our community and in our

environment? And it makes it tough for the

principal to be able to justify why he would take a

risk on an employee like Mr. Cook after he ' s made

those types of statements .

C ONCLUSIONS OF L AW

19. DOAH has jurisdiction over the parties to and subject matte r of these

proceedings pursuant to sections 120.569, 120.57(1) , and 1012.33, Florida

Statutes.

20. Petitioner is the duly - constituted governing body of the School District

of Polk County. Art. IX, § 4, Fla. Const.; §§ 1001.30 and 1001.33, Fla. Stat.

21. Pe titioner bears the burden to prove the charges against

Respondent by a preponderance of the evidence. Sublett v. Sumter Cty .

Sch. Bd. , 6 64 So. 2d 1178 (Fla. 5th DCA 1995); Allen v. Sch. Bd. of Dade Cty . ,

571 So. 2d 568, 569 (Fla. 3d DCA 1990) ( citing Dileo v. Sch. Bd. of Dade Cty . ,

569 So. 2d 883 (Fla. 3d DCA 1990) ) ; McNeill v. Pinellas Cty . Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1976); § 120.57(1)(j), Fla. Stat.

22. The preponderance of the evidence standard requires proof by " the

greater weight of the evidence " or evidence that " more likely than not " tends

to prove a certain proposition. See Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000); see also Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446

(6 th Cir. 2005)(holding that the trial court prope rly defined the

preponderance of the evidence standard as " such evidence as, when

considered and compared with that opposed to it, has more convincing force

and produces [a] belief that what is sought to be proved is more likely true

than not true " ).

23. In Florida, the district superintendent has the authority to make

recommendations for dismissal of school board employees, and the school board has the authority to suspend without pay school board instructional

staff with professional service contracts f or " just cause. " §§ 1001.42(5),

1012.22(1)(f), and 1012.33(6)(a ), Fla. Stat.

24. Section 1012.33(1)(a ) provides that school district instructional

personnel may be dismissed at any time during the school year for " just

cause " defined as:

Just cause include s, but is not limited to, the

following instances, as defined by rule of the State

Board of Education: immorality, misconduct in

office, incompetency, … gross insubordination,

willful neglect of duty, or being convicted or found

guilty of, or entering a pl ea of guilty to, regardless

of adjudication of guilt, any c rime involving moral

turpitude.

25. Florida Administrative Code Rule 6A - 5.056 defines " just cause " as the

basis for dismissal actions against instructional personnel:

6A - 5.056 Criteria for Suspens ion and Dismissal.

[ " ] Just cause " means cause that is legally sufficient.

Each of the charges upon which just cause for a

dismissal action against specified school personnel may be pursued are set forth in sections 1012.33 and 1012.335, F.S. In fulfillme nt of these laws, the

basis for each such charge is hereby defined:

* * *

(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, F.A.C.;

(b) A violation of the Principles of Professional Conduct for the Education Profession in Florida as

adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student ' s learning

enviro nment; or

(e) Behavior that reduces the teacher ' s ability or his

or her colleagues ' ability to effectively perform

duties.

26. Florida Administrative Code Rule 6A - 10.081 sets out the Principles of

Professional Conduct for the Education Profession in Flo rida, which provides,

in pertinent part :

6A - 10.081 Principles of Professional Conduct for

the Education Profession in Florida.

* * *

(2) Florida educators shall comply with the

following disciplinary principles. Violation of any of these principl es shall subject the individual to

revocation or suspension of the individual educator ' s certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires that the individual:

1. Shall make reasonable effort to protect the

s tudent from conditions harmful to learning and/or

to the student ' s mental and/or physical health

and/ or safety.

27. Section 4.4 of the Teacher ' s Collective Bargaining Agreement provides:

4.4 Just Cause: No teacher will be disciplined, reprimanded, suspend ed, terminated or otherwise

deprived of fringe benefits or contractual rights

during the term of his/her contract without just cause.

28. In an era where we have collectively witnessed unimaginable school

shootings at Columbine in Colorado, Sandy Hook in Connecticut, and

Parkland in Ft. Lauderdale, to name only a few, even Respondent admitted

that there is a heightened sensitivity to the words we use in everyday

conversation about engaging in violent acts on a school campus. In this case,

the students, the ir parents, school officials, law enforcement personnel, and

even the judge who entered the risk protection order realized the gravity of Respondent ' s comments made in such a casual way to his cl ass during the

lockdown drill. The seriousness of the situati on created by Respondent was

borne out by the immediate reactions of all involved and the safety measures

they took, according to their training, to ensure that Respondent did not pose

an immediate or direct threat to the health, safety, and welfare of the

students in his classroom and throughout the school.

29. The seriousness of the incident, as set forth eloquently by counsel for

Petitioner in his proposed recommended order, sums up the situation that

became the subject of these legal proceedings:

We eac h must be responsible for what we do, and

we must live with the consequences of our actions.

While in retrospect it does not now appear that the

Respondent intended to physically harm anyone, in

real time the Respondent ' s statements had a

dramatic and expe cted response of great concern

from the students, their parents, school administrators, law enforcement officers, judicial

officials, the media and the community. The result,

as reflected in the record of this case, is that the Respondent ' s actions will ma ke it very difficult for

him to return to any teaching position in Polk County.

30. From the facts of this case, the only appropriate conclusion that can be

reached is that Respondent ' s effectiveness as an educator has been impaired.

See Purvis v. Marion Cty . Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA 2000);

Walker v. Highland Cty . Sch. Bd. , 752 So. 2d 127 (Fla. 2nd DCA 2000); and

Summers v. Sch . Bd. of Marion Cty . , 666 So. 2d 175 (Fla. 5th DCA 1996).

31. The record of this case establishes that Respondent eng aged in

misconduct in office that is serious and constitutes just cause for termination

of Respondent ' s employment. The evidence clearly supported Petitioner ' s

actions here , and the undersigned accepts, without reservation, the credible

testimony that it w ould be impossible for Petitioner to find appropriate

placement for Respondent in another Polk County school.

R ECOMMENDATION

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

R ECOMMENDED that t he Polk County School Board enter a final order

terminating Respondent ' s employment.

D ONE A ND E NTERED this 26th day of February , 2020 , in Tallahassee, Leon

County, Florida.

R OBERT S. C OHEN

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 26th day of February , 2020 .

C OPIES F URNISHED :

Keith Alan Cook

5744 Crafton Drive

Lakeland, Florida 33809

(eServed)

Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tal lahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Jacqueline Byrd, Superintendent

Polk County Scho ol Board

1915 S outh Floral Ave nue

P ost O ffice Box 391

Bartow, F lorida 33831

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recom mended

Order should be filed with the agency that will issue the Final Order in this case.