STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BAY COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5501

)

GEORGE CULBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, the designated Hearing Officer of the Division of Administrative Hearings, on August 17, 1988, in Panama City, Florida.

APPEARANCES

For Petitioner: Franklin Harrison, Jr.

304 Magnolia Avenue

Panama City, Florida 32401

For Respondent: Pamela L. Cooper

911 East Park Avenue Post Office Box 1547

Tallahassee, Florida 32302 PRELIMINARY STATEMENT

On March 4, 1987, the Respondent, George Culbert, was orally notified of his termination from his position with the School Board of Bay County, Department of Transportation, by his supervisor, Mr. Larry Daniels. On that date, Mr. Daniels also gave Mr. Culbert a letter to that effect. The basis of the termination concerned allegations made against Mr. Culbert by another employee involving an alleged failure to stop his bus at a railroad crossing.

On March 5, 1987, Superintendent Hall of the Bay County School District and its Personnel Director, Mr. Dick Lockner, executed a written termination form.

Thereafter, on April 8, 1987, without notice to the Respondent, the School Board took "final agency action," and terminated Mr. Culbert.

An Administrative Hearing was requested by the Respondent's Union Representative, Kay Winter. The School Board ultimately granted the request for the Administrative Hearing, but did not transfer the matter to the Division of Administrative Hearings for some seven months.

The cause was originally set for hearing on April 26, 1988, but by stipulation of the parties was continued. The cause ultimately came on for hearing on the above date. After the hearing the parties ordered a transcript and sought an extended briefing schedule, which was granted. The Proposed

Findings of Fact and Conclusions of Law submitted by the parties have been treated in this Recommended Order and addressed specifically in the Appendix attached hereto and incorporated by reference herein.

The issues to be resolved concern whether the Respondent George Culbert should be terminated from his position with the Bay County School Board.

Specifically, the dispute concerns whether the Respondent did indeed fail to stop at the railroad crossing in question in violation of statute or rule and, if so, whether dismissal or some lesser penalty is warranted.

FINDINGS OF FACT

1. The Respondent, George Culbert, at times pertinent hereto, was employed by the School Board of Bay County. He was employed from November 1981 until March 4, 1987, when he was terminated by recommendation of a supervisor and by the School Superintendent. On April 8, 1987, the School Board took final agency action by terminating Mr. Culbert. The School Board of Bay County, the Petitioner, is a unit of local government charged, in pertinent part, with the hiring, termination and regulation of employment duties and practices of non- instructional personnel, such as the Respondent herein.

   
   

2. The Respondent was employed by the School Board as a substitute bus driver from November 1981 until August 1982. From that date until his termination, he held a regular, full-time position as a bus driver with the School Board. During his tenure with the Board he received annual re- appointments to his position. He worked under a 10 month, non-instructional contract with the school board which covered the entire 1986-87 school year.

   
   

3. He received annual, non-instructional performance evaluations for each year he was an employee of the school board. The Respondent consistently achieved performance standards on his evaluations and his overall rating was satisfactory. Although he was once disciplined for an episode involving a fight his son was in, while he was transporting his son and other children on a school bus, this infraction was of a personal nature and did not reflect on his skill or competence as a bus driver. During his period of employment from 1981 through March 4, 1987, he never received any disciplinary action regarding his performance as a bus driver. Prior to the instant situation, he had not been disciplined for any infractions of school board rules and policies, or state statutes.

   
   

4. On February 25, 1988, bus driver Carol Nesmith was at a railroad crossing at State Road 261, a four lane highway. Her bus was stopped in the right hand lane as pertinent rules and her instructions required, to insure safe negotiation of the railroad crossing. While Ms. Nesmith and her bus was stopped (with students aboard) at the railroad crossing, following safety procedures required of bus drivers, the Respondent approached her bus from the rear. Instead of coming to a complete stop, he changed lanes and passed Ms. Smith's school bus at the railroad crossing, without coming to a complete stop. Mr. Culbert, as a regular practice, always approached a railroad crossing by reducing speed, coming to a stop, opening his window and door in order to look both ways to determine whether a train was approaching. Mr. Culbert testified that he religiously adhered to this practice. On the day in question, however, Mr. Culbert was running a trifle late in his schedule for taking children home from school on his bus because he had been delayed by a train at an earlier railroad crossing.

5. Mr. Culbert, as well as Betty Gates, one of his supervisors, established that the required procedure for approaching and negotiating a railroad crossing could be performed quite quickly, depending upon the habits of the individual driver. There are no rules or regulations governing the time required to complete the "stopping and looking" procedures. Once a school bus comes to a stop, the other safety procedures can be performed in a few seconds and indeed a driver can look both ways when approaching a railroad crossing before coming to a complete stop. Mr. Culbert admitted that he followed these procedures quickly, but maintained that he came to a complete stop and followed the procedures as he normally did, not deviating from the normal practice. In any event, it is found that he failed to come to a complete stop and Ms. Nesmith testified that after he passed her bus, being concerned about the incident, she reported it to her Supervisor, Pat Holland. Ms. Nesmith knew of no other such incident. It was not until March 4, 1987, the day he was notified by his supervisor of his termination, that Mr. Culbert was notified of Ms. Holland's and Ms. Nesmith's concerns about the conduct that occurred on February 25.

   
   

6. On March 4, 1987, Mr. Larry Daniels, one of his supervisors, asked him about the incident, whereupon Mr. Culbert denied that he failed to stop at the railroad crossing. In fact, he asked Mr. Daniels to conduct a full investigation of the matter and contact all the students who were in attendance at the incident (on his bus) at the time. As far as Mr. Culbert knew Mr. Daniels never conducted such an investigation. In any event, the Respondent was orally notified on that day of his termination and on the same day Mr. Daniels gave him a letter of termination. The basis for the termination was only the allegation involving his failure to stop at the railroad crossing.

   
   

7. The following day, March 5, 1987, Superintendent Hall and Personnel Director Dick Lockner executed a standard Department of Personnel Termination Form regarding the Respondent. Later, on April 8, 1987, without prior notice or hearing, the school board took its final agency action and voted to terminate him. Thereafter, an Administrative Hearing was requested by the Respondent's Union Representative on May 13, 1987. Approximately seven months thereafter the matter was transmitted to the Division of Administrative Hearings for a formal proceeding.

   
   

8. Mr. Malcolm Murphy was formerly the Supervisor of the School Board's Department of Transportation. Under his management the Department followed a "progressive discipline model." Under this policy employees were always notified upon their employment of the type of misconduct warranting discipline and the consequences of such misconduct. Mr. Murphy established that alleged violations of school board policy, rules or statutes, such as that involved in this case, would not warrant dismissal for a first offense under prevailing school board policy. The Respondent's offense in this instance is a first offense.

   
   

9. Ms. Betty Gates, a former "District Specialist" for the board's Department of Transportation, confirmed that, while the conduct involved herein would be deemed somewhat serious, that dismissal would never be considered as appropriate for a first offense of this nature. It would be considered excessive for an employee who had never committed such an offense. She also established that it was commonly believed by employees, based upon the policy announced to them by the School Board's Department of Transportation, that they would not be dismissed for such an offense as this one, if it were the first such offense. Ms. Gates further opined that the action taken against Mr. Culbert was related to a personal animosity between he and Mr. Daniels, rather than to a violation of professional standards. In support of this belief she

   recounted an incident where Mr. Daniels had previously attempted to discipline Mr. Culbert for a matter totally unrelated to his employment relationship with the School Board.

   
   

10. Mr. Murphy, in his position as Supervisor, could recall no incident of any employee being disciplined in such a serious manner for a first offense. Although he suspended another employee for a second offense involving violation of a rule or school board policy, he did not know of any instance where an employee was terminated even for a second such offense. It was thus unequivocally established that the School Board's policy toward its bus drivers was that no termination should occur for a first offense involving an incident such as failing to come to a complete stop at a railroad crossing, although that is a moderately serious occurrence and should not be allowed to be repeated.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Pursuant to Section 230.33(7), Florida Statutes, the Superintendent of Schools has authority to suspend an employee with pay, however, Section 230.33(7)(h), Florida Statutes, provides that only the School Board has authority to terminate members of the instructional or non-instructional staff. School employees are employed by the School Board and not by the Superintendent, Principal or other Supervisor. See School Board of Leon County v. Goodson, 335 So.2d 308 (Fla. 1st DCA 1976); Hart v. School Board of Wakulla County, 340 So.2d

    121 (Fla. 1st DCA 1976); Whitgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977). The statutory provisions cited do not authorize the School Board's Department of Transportation Supervisor to terminate the Respondent. The employment or dismissal of staff members is exclusively within the province of the School Board itself, aside from temporary suspension by the School Superintendent. Thus the Supervisor of the Board's Department of Transportation had no authority to finally terminate the Respondent as he did by both his verbal and written termination of the Respondent on March 4, 1987. The Respondent was entitled to pay for employment in his position at least until the final termination by a vote of the School Board on April 8, 1987, even if such termination was ultimately justified, which it is not.

    
    

13. Section 230.33(7)(e), Florida Statutes (1987) authorizes the Superintendent of Schools to recommend employees for dismissal but not to finally dismiss them on his own motion. Similarly, the Superintendent is not authorized and certainly supervisory employees under the Superintendent are not authorized to terminate an employee and withhold his pay from the point of their decision to do so forward and before the School Board has taken its final agency action of termination. See LeDew v. Unemployment Appeals Commission, 456 So.2d 1219, 1222 (Fla. 1st DCA 1984). Thus the action of the School Board's supervisory personnel in this instance has deprived the Respondent of his income which could have been earned during the remainder of his term of employment up to the time the School Board voted to terminate him and, of course, the Respondent has suffered a loss of income he would have earned during the remainder of his term of employment contract for the period after the School Board's vote to terminate, as well.

    
    

14. The School Board is also required to act diligently in affording such a terminated employee a timely opportunity for an Administrative Hearing. There is no doubt that the employee's substantial interest is affected by such a

    termination. Hasper v. Department of Labor and Employment Security, 459 So.2d

    400 (Fla. 1st DCA 1984). When an Administrative Hearing has been requested the "School Board must with reasonable dispatch initiate and diligently prosecute proceedings under the appropriate subsection of Section 120.57, Florida Statutes, to the end that the risk of wrongful suspension (termination) be minimized." Johnson v. School Board of Palm Beach County, 403 So.2d 520 (Fla. 1st DCA 1981) Id. at 525. In the Johnson case, the School Board of Palm Beach County took disciplinary action against a non-instructional employee by attempting to retroactively ratify or confirm its Superintendent's termination of that employee. The Superintendent had attempted to suspend the employee without pay, a power which rests exclusively with the Board. The School Board's action in attempting to ratify the suspension without pay retroactively was deemed inappropriate and unlawful.

    
    

15. The instant case is parallel to the Johnson decision because here the School District Manager, the Respondent's immediate supervisor, who did not possess the legal authority to terminate, effectively dismissed the employee from his employment with his pay stopping on that date. The Superintendent, who also did not possess the legal authority to finally terminate the employee, ratified the manager's decision the next day. A month elapsed before the School Board ultimately voted to terminate the employee or, in effect, to "ratify" the previously undertaken act of termination by the Superintendent and his agent or manager. Here, under authority of the Johnson decision, and the above statutory authority, the School Board's action cannot cure the unlawful termination and loss of pay caused by the employee's supervisor and the Superintendent. In the Johnson case also, the employee was given written notice that the Superintendent intended to recommend the suspension without pay to the School Board and to seek the employee's termination. The employee was also given specific notice of the time and date of the School Board meeting where the question was to arise. In the instant case, however, no notice was provided to Mr. Culbert either of the supervisor's decision to terminate nor of the School Board meeting of April 8, 1987, where his termination was finally adopted. He was given no opportunity to present argument in opposition to his dismissal at any time from March 4 through April 8, 1987. While it is true that the School Board, after the fact, ultimately granted the Respondent an opportunity to challenge his dismissal in a de novo 120.57(1) Proceeding before the Division of Administrative Hearings, it cannot be said that the School Board acted with requisite dispatch in affording him a right to a hearing on the question of his termination and loss of pay and other benefits. The fact remains that the Respondent has been without those wages and benefits since March 4, 1987, over a month prior to the Board's ultimate formal agency action of termination. Accordingly, in view of the recommendation below that the Respondent be reinstated in his position and the reasons for that recommendation, the Respondent should be made whole for lost wages and benefits from March 4, 1987 rather than from April 8, 1987, when the School Board finally acted on the issue of his termination.

    
    

16. The Petitioner maintains in this proceeding that Mr. Culbert failed to stop at the railroad crossing in violation of School Board policy. There is no question that is School Board policy, as well as State law. See Section 234.111, Florida Statutes. The testimony of the Respondent's fellow bus driver, Ms. Nesmith, related her direct observance of the Respondent on the date in question when he failed to come to a complete stop at the railroad crossing in question. Ms. Nesmith is an experienced school bus driver and employee of the Board operating under the same rules, regulations and laws as the Respondent and she is well experienced with those requirements. At the time of the incident in question she was following the appropriate procedure for stopping at a railroad crossing and, being in a stationary position and observing the crossing area in

    both directions, was in a particularly advantageous situation for noting the Respondent's failure to stop and follow appropriate safety procedures.

    Contrarily, the Respondent testified that it is his traditional and unfailing practice to stop at railroad signs and crossings and that he adhered to that practice during the incident in question. Mr. Culbert's general demeanor and manner of answering the questions about this incident, however, tend to indicate that, although he did not appear to be falsely recounting his version of the incident, that he did not have a very clear recollection of those events, as opposed to that of Ms. Nesmith. Therefore, I credit her testimony over that of the Respondent which is the basis for the above Findings of Fact in these particulars.

    
    

17. It is also true that Mr. Culbert has an exemplary bus driving safety record and has, in the past, been commended on his performance as a bus driver. The only negative comment in Mr. Culbert's employment record, as found above, does not directly concern his driving competence or safety record. The allegation that he failed to stop at the railroad crossing is the only charge against him in this proceeding. Although the fact of the charge has been sustained, because of Mr. Culbert's unblemished safety record and the preponderant evidence offered at hearing of his competence as a bus driver and the desire of the children and parents who he serves as a bus driver that he be reinstated, it is concluded that severe penalty of dismissal and loss of pay is certainly not warranted. The only evidence concerning the seriousness of the charge, and the School Board's policy in the past regarding such offenses, was offered by the Respondent's own witnesses, Malcolm Murphy and Betty Gates and was unrebutted. Both these witnesses were former administrators for the School Board's Department of Transportation. They confirmed that the School Board's policy in instances like this was that the violation is considered serious, however not so serious as to warrant severe disciplinary action on the first occasion it occurs; certainly not the severe sanction of termination and loss of pay and benefits. Ms. Gates established that dismissal would certainly be excessive for an employee who had never committed an offense of that nature or seriousness in the past.

    
    

18. The School Board has offered no evidence as to other disciplinary actions taken by the Board against other employees who might have committed similar offenses. The Respondent, however, provided evidence that the disciplinary action taken in this case was inconsistent with action taken against similarly situated employees previously. Former Supervisor Murphy and Ms. Gates confirmed that School Board policy and practice was that such disciplinary action should not be taken against employees, and had not been taken against other employees, for a first offense of this nature. Thus, if he was terminated, the Respondent's treatment would be disparate and more severe than discipline meted out in the past to other employees similarly situated.

    
    

19. In approximately six years of employment with the Board Mr. Culbert has demonstrated a satisfactory employment record. He has consistently achieved performance expectations on all his evaluations and has received a commendation concerning his bus driving skills in an emergency situation which occurred in the past. He was disciplined only for the one infraction which was of a more personal nature and did not directly involve his skills, competence and judgement as a bus driver. Thus, on balance, it must be concluded that this isolated incident of misconduct, albeit, of a moderately serious nature, does not, in view of the School Board's established policy and this particular employee's employment record, justify the extreme sanction of dismissal and loss of pay and benefits. Accordingly the Respondent should be reinstated to his position and be made whole as to back pay, benefits and interest thereon, from

the time he was terminated without pay, from March 4, 1987 forward. See, by analogy, Sulcer v. McFatten, 497 So2d 1349 (4th DCA 1986).

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a Final Order be entered by the School Board of Bay County restoring the Respondent to his previous employment position and providing him with back pay and related benefits with interest thereon, at the legal rate, from the time he was wrongfully terminated on March 4, 1987.

DONE and RECOMMENDED this 21st day of February, 1989, at Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5501 PETITIONER'S PROPOSED FINDINGS OF FACT

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

7. Rejected as a discussion of testimony rather than as a Proposed Finding of Fact.

8. Accepted.

9. Accepted.

10. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

11. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

12. Rejected as irrelevant.

13. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

14. and 15. Rejected as being immaterial in the de novo context of the instant proceeding.

1. Rejected as irrelevant.

2. Rejected as irrelevant.

3. Accepted in part, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Accepted.

RESPONDENT'S PROPOSED FINDINGS OF FACT

1. Accepted.

2. Accepted.

3. Accepted.

4. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted, except that the witnesses' name was Nesmith and not Smith.

11. Accepted.

12. Accepted as to the first two sentences. The remainder of this Proposed Finding of Fact constitutes a discussion of testimony and is not a Finding of Fact.

13. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. (There is no paragraph #14). Rejected as constituting a recitation of testimony and not a Proposed Finding of Fact.

2. Accepted.

3. Rejected as immaterial and irrelevant.

4. Rejected as immaterial and irrelevant.

5. Rejected as immaterial and irrelevant and as constituting merely a discussion of testimony.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Accepted.

11. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

12. Accepted.

COPIES FURNISHED:

Franklin R. Harrison, Esquire

304 Magnolia Avenue

Panama City, Florida 32402

Pamela L. Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302

Leonard J. Hall Superintendent of Schools Post Office Box 820

Panama City, Florida 32401

Docket for Case No: 87-005501

Orders for Case No: 87-005501