20-001335TTS Broward County School Board vs. Kenneth W. Miller Status: Closed Recommended Order on Tuesday, November 10, 2020.

Summary: School Board proved by a preponderance of evidence that teacher's failure to report student's threat to shoot up the school constituted misconduct in office, incompetency, inefficiency, and a violation of School Board policies justifying his suspension.

P RELIMINARY S TATEMENT

By letters dated January 9 and February 6, 2020, Petitioner, Broward

County School Board ( " School Board " ), notifi ed Respondent, Kenneth W.

Miller ( " Respondent " ), of the School Board ' s intent to suspend his

employment without pay. On January 7, 2020, Respondent timely requested

an administrative hearing. On March 3, 2020, at its scheduled meeting, the

School Board too k action to suspend Respondent ' s employment as a teacher

without pay for one day. On March 10, 2020, the School Board referred the

matter to DOAH to assign an Administrative Law Judge to conduct the final

hearing.

The Amended Administrative Complaint con tains certain factual

allegations, and based on those factual allegations, the School Board charged

Respondent with misconduct in office, incompetency, inefficiency, and

violation of School Board policies 2130 and 4008.

The final hearing was initially set for April 24, 2020. On March 17, 2020,

the parties filed a joint motion for continuance and Petition er filed a motion

to amend the Administrative C omplaint. On March 18, 2020, the undersigned

granted the motions and reset the final hearing for June 2 and 3, 2020. On

May 7, 2020, the School Board filed an unopposed motion for continuance

because of the COVID - 19 pandemic. On May 8, 2020, the undersigned

granted the motion and reset the final hearing for August 11 and 12, 2020.

On July 22, 2020, the parties f iled another motion for continuance because of

the COVID - 19 pandemic. On July 24, 2020, the undersigned granted the

motion and reset the final hearing for September 14 and 15, 2020.

The final hearing was conducted as scheduled on September 14, 2020,

with both parties present. At the hearing, the School Board presented the

testimony of I.B., M.K., M.G., Calvin Golson, Annika Williams - Brown,

Debra Clark, and Sabrina Smith. The School Board ' s Exhibits 1 through 16

were received into evidence based on the sti pulation of the parties. The

School Board ' s Exhibit 17 was also received into evidence. Respondent

testified on his own behalf. Respondent ' s Exhibits 1 and 2 were received into

evidence based on the stipulation of the parties.

The one - volume final hearin g Transcript was filed at DOAH on

September 29, 2020. On October 9, 2020, the School Board filed an unopposed

motion to extend the parties ' deadline until October 26, 2020, to fil e proposed

recommended orders. On October 9, 2020, the undersigned entered an Order

granting the motion.

The parties timely filed proposed recommended orders on October 26,

2020. On October 27, 2020, the School Board unilaterally filed an amended

proposed recommended order. Although the School Board did not file a

motion requesti ng that the undersigned consider its amended proposed

recomme nded order, which was filed one day late, the undersigned has

nevertheless considered the amended proposed recommended order in the

preparation of this Recommended Order because there is no preju dice to

Respondent. The undersigned also considered Respondent ' s Proposed

Recommended O rder in the preparation of this Recommended Order. On

September 4, 2020, prior to the hearing, the parties filed their Joint Pre -

Hearing Stipulation, in which they stipu lated to certain facts. These facts

have been incorporated into this Recommended Order as indicated below.

Unless otherwise indicated, all rule and statutory references are to the

versions in effect at the time of the alleged violations.

F INDINGS OF F A CT

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

duty to operate, control, and supervise the public schools in Broward County.

2. The School Board hired Respondent on September 1, 1981. At all times

material hereto, Respondent has been employed by the School Board as a

middle school social science teacher and department head at Whiddon - Rogers

Education Center ( " Whiddon - Rogers " ).

3. At all times material to this case, Respondent ' s employment with the

School Board has been gover ned by Florida law and the School Board ' s

policies.

4. The conduct giving rise to the School Board ' s proposed one - day

suspension of Respondent occurred on October 1, 2019, during the 2019 - 2020

school year.

5. On the morning of October 1, 2019, M.G., an e ighth grade male student

at Whiddon - Rogers, received a telephone call regarding some family members

who had died that morning. Due to the deaths in his family, M.G. was upset

and in a " bad mood " throughout the morning and later that day when he

arrived in Respondent ' s fourth period social studies class.

6. During Respondent ' s fourth period class, M.G. did not want to be

disturbed. He had a " hoodie over his head, " his head down on his desk, and

he was not doing any work.

7. M.G. was often picked on in clas s by other students. On this particular

occasion in Respondent ' s fourth period class, M.G. was being picked on by

other students as he laid his head down on his desk.

8. At some point, M.G. picked his head up from his desk and made a

verbal threat to ot her students that he was going to shoot up the school.

9. Respondent did not hear M.G. make the threat. One of the other

students that heard M.G. ' s threat went to Respondent during class and told

him M.G. had threatened to shoot up the school.

10. Resp ondent did not report M.G. ' s threat to school administration.

11. Respondent did not consider M.G. ' s comment to be a dangerous threat.

Respondent did not want to embarrass M.G. and told him during his fourth

period class on October 1, 2019, that he co uld not say things like that. M.G.,

who was angry, did not respond to Respondent and walked out of the

classroom. Respondent instructed M.G. to return to the classroom, but M.G.

ignored him.

12. On October 2, 2019, M.G. did not attend school.

13. On the mor ning of October 3, 2019, Assistant Principal Sabrina Smith

received a text message from another teacher at Whiddon - Rodgers, N ' Kenge

Rawls, notifying her of M.G. ' s threat on October 1, 2019, to shoot up the

school.

14. Ms. Smith notified the other assista nt principals of the threat and

assembled the mandatory members of the Behavioral Threat Assessment

( " BTA " ) team to collaboratively analyze available data, determine the level of

risk, and develop appropriate interventions.

15. As part of the threat asses sment, Ms. Smith spoke to M.G. on

October 3, 2019, who admitted he had threate ned to shoot up the school.

Ms. Smith also spoke to Respondent, who admitted he did not report M.G. ' s

threat to administration on October 1, 2 019. Respondent admitted to

Ms. Smit h that he should have reported M.G. ' s threat and that he made a

mistake in not reporting the threat.

16. Based on the behavioral threat assessment, the BTA team determined

M.G. ' s risk level to be " Medium/Serious Substantive. " A " Medium/Serious

Substan tive " risk level means that the student " does not appear to pose a

threat of violence at this time but exhibits behaviors that indicate a

continuing intent to harm and/or potential for future violence. "

17. By all accounts, Respondent is a good teacher an d well respected by

his colleagues as evidenced by his team leader role at Whiddon - Rodgers.

However, on this particular occasion, Respondent used poor judgment and

erred in not reporting M.G. ' s threat to shoot up the school on October 1, 2019.

18. The pe rsuasive and credible evidence adduced at hearing establishes

that Respondent failed to report M.G. ' s threat to shoot up the school, which

constitutes misconduct in office in violation of Florida Administrative Code

Rule 6A - 5.056. By failing to report M.G. ' s threat to shoot up the school,

Respondent violated rule 6A - 10.081(2)(a)1., by failing to make reasonable

effort to protect the students from conditions harmful to learning and/or to the students ' mental and/or physical health and/or safety. Respondent ' s

conduct also constitutes " [i]ncompetency " and " [i]nefficiency, " in violation of

rule 6A - 5.056(3) and (3)(a)1., by failing to discharge the duty to report such a

threat as prescribed by law and " [i]nefficiency " in violation of rule 6A -

5.056(3)(a)3., by fai ling to communicate appropriately with and relate to

administrators. Respondent ' s conduct also violates School Board Policy 2130,

which requires School Board employees " to report to school administration

any expressed threat(s) or behavior(s) that may repr esent a threat to the

community, school, or staff, " and School Board Policy 4008, which requires

Respondent to comply with the " Principles of Professional Conduct of the

Education Profession in Florida, " and " all rules and regulations that may be

prescribe d by the State Board and by the School Board. "

19. Respondent has only received prior discipline on one occasion. On

September 19, 2007, Respondent received a written reprimand for

inappropriate discipline of a student.

C ONCLUSIONS OF L AW

20 . DOAH has jurisdiction of the subject matter and the parties to this

proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

21. Respondent is an instructional employee, as that term is defined in

section 1012.01(2), Florida Statutes. The School Boa rd has the au thority to

suspend instructional employees pursuant to sections 1012.33(1) (a)

and 1012.33(6)(a) .

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

evidence, that Respondent committed the violations alleged in the Amende d

Administrative Complaint , and that such violations constitute " just cause " for

a one - day suspension. §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch. Bd.

of Dade Cty ., 569 So. 2d 883, 884 (Fla. 3rd DCA 1990).

23. 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. Gross v. Lyons , 763 So . 2d 276, 280 n.1 (Fla.

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. Cisne ros v. Sch. Bd. of Miami - Dade C ty ., 990 So. 2d 1179 (Fla.

3rd DCA 2008).

24. Whether Respondent committed the charged offenses is a question of

ultim ate 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. 1 st DCA

1985 ); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

25. Sections 1012.33(1)(a) and (6)(a) provi de , in pertinent part , that

instructional staff may be suspended during the term of their employment

contract only for " just cause. " §§ 1012.33(1)(a) and (6)(a ), Fla. Stat. " Just

cause " is defined in section 1012.33(1)(a) to include " misconduct in office " and

" incompetency. "

26. Section 1001.02(1), Florida Statutes, grants the State Board of

Education authority to adopt rules purs uant to sections 120.536(1)

and 120.54 to implement provisions of law conferring duties upon it.

27. Consistent with this rulemak ing authority, the State Board of

Education has defined " misconduct in office " in r ule 6A - 5.056(2), which

provides:

(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

environment; or

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

or her colleagues ' ability to effectively perform

duties.

28. Rule 6A - 10.080, titled " Code of Ethics of the Education Profession in

Florida, " was repealed, effe ctive March 23, 2016, and reenacted in r ule 6A -

10.081(1)(a) - (c). Rule 6A - 10.081(1)(a) - (c) provides :

(1) Florida educators shall be guided by the

following ethical principles:

(a) The educator values the worth and dignity of

every person, the pursuit of tr uth, 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.

(b) The educator ' s prim ary 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.

(c) Aware of the importance of maintainin g 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. W hile rule 6A - 5.056(2)(a) sti ll provides that violation of the Code of

Ethics , "as adopted in [ r ] ule 6A - 10.080," constitutes " misconduct, " it has been

frequently noted that the prece pts set forth in the " Code of Ethics " are " so

general and so obviously aspirational as to be of little practical use in

defining normative behavior." Broward Cty. Sch. Bd. v. Beckham , Case

No. 19 - 4589TTS (Fla. DOAH Mar. 9, 2020; BCSB May 1, 2020); Miami - Dade

C ty. Sch. Bd. v. Lantz , Case No. 12 - 3970 (Fla. DOAH July 29, 2014).

30. Rule 6A - 5.056(2)(b) incorpor ates by reference rule 6A - 10.081, which is

titled " Principles of Professional Conduct for the Education Profession in

Florida. " Rule 6A - 10.081(2)(a) provides, in pertinent part:

(a) Obligation to the student requires that the

individual:

1. Shall make re asonable effort to protect the

student from conditions harmful to learning and/or to the student ' s mental and/or physical health

and/or safety.

31. Consistent with its rulemaking authority, the State Board of

Education has defined " incompetency " in rule 6 A - 5.056(3), which provides, in

pertinent part:

(3) " Incompetency " means the inability, failure or

lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

32. Consistent with its rulemaking authority, the State Board of

Ed ucation has defined " inefficiency " in rule 6A - 5.056(3)(a), which provides, in

pertinent part:

(a) " Inefficiency " means one or more of the

following:

1. Failure to perform duties prescribed by law;

2. Failure to communicate appropriately with and

relate t o students.

3. Failure to communicate appropriately with and

relate to colleagues, administrators, subordinates, or parents.

33. School Board Policy 2130 is a "rule" within the meaning of rule 6A -

5.056(2)(c). School Board Policy 2130 provides, in pertine nt part:

THREAT ASSESSMENT POLICY

The School Board of Broward County (SBBC), Florida is committed to protecting its students, employees, and members of the community. It is essential that Districtwide violence prevention be in place to foster a learning environment that

promotes a culture of safety, respect, trust, and

social/emotional support, while also protecting

students and staff from conduct which poses an

actual or perceived threat to self or others. The

threat assessment policy shall be interprete d and

applied consistently with all applicable state and

federal laws, and The Board's collective - bargaining

agreements. The policy was developed in accordance with the legislation enacted by the

State of Florida (Marjory Stoneman Douglas High

School Publi c Safety Act, SB 7026), established

research, and recognized standards of practice regarding threat assessment and management in school settings.

* * *

Section III: ROLES AND RESPONSIBILITIES

* * *

L. All SBBC employees, volunteers, an d contractors

are required to report to school administration any

expressed threat(s) or behavior(s) that may

represent a threat to the community, school, or self.

34. School Board Policy 4008 is a " rule " within the m eaning of

rule 6A - 5.056(2)(c). Sch ool Board Policy 4008 provides, in pertinent part:

B. DUTIES OF INSTRUCTIONAL PERSONNEL

The members of instructional staff shall perform the following functions:

1. Comply with the Code of Ethics and the

P rinciples of Professional Conduct of the Educatio n

Profession in Florida.

* * *

8. Conform to all rules and regulations that may be prescribed by the State Board and by the School Board.

35. Turning to the instant case, the School Board p rove d , by a

preponderance of the evidence, that Responde nt is guilty of misconduct in

office in violation of rule 6A - 5.056(2). As detailed above, by failing to report

M.G.'s threat on October 1, 2019, to shoot up the school, Respondent failed to

make reasonable effort to protect students from conditions harmful to

learning and/or to the students' mental and/or physical health and/or safety.

Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in

violation of rule 6A - 5.056(3) and (3)(a)1., by failing to discharge the duty to

report such a threat as prescribed by law and "[i]nefficiency" in violation of

rule 6A - 5.056(3)(a)3., by failing to communicate appropriately with and relate

to administrators. Respondent's conduct al so violates School Board

Policy 2130, which requires School Board empl oyees "to report to school

administration any expressed threat(s) or behavior(s) that may represent a

threat to the community, school, or staff," and School Board Policy 4008,

which requires Respondent to comply with the "Principles of Professional

Conduct of the Education Profession in Florida," and "all rules and

regulations that may be prescribed by the State Board and by the School

Board."

R ECOMMENDATION

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

R ECOMMENDED that the Broward C ounty School Board enter a final order

upholding the one - day suspension of Respondent ' s employment without pay.

D ONE A ND E NTERED this 10th day of November, 2020 , in Tallahassee,

Leon County, Florida.

D ARREN A. S CHWARTZ

Administrative Law Judge

Divisio n 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 10th day of Novembe r , 2020 .

C OPIES F URNISHED :

Andrew Carrabis, Esquire

Broward County School Board 600 Southeast 3rd Avenue , 11th Floor

Fort Lauderdale, Florida 33301

(eServed)

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

201 East Pine Street , Suite 445

Orlando, Flo rida 32801

(eServed)

Robert W. Runcie, Superintendent

Broward County Public Schools

600 Southeast 3 rd Avenue

Fort Lauderdale, Florida 33301

Matthew Mears, General Counsel

D epartment of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

T allahassee, 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)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All part ies 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.