STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2094

)

JESSE LEON THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida, on June 2, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondent should be denoted because of his alleged conviction for driving under the influence and the revocation of his driver's license.

APPEARANCES

For the Petitioner: Bruce P. Taylor, Esquire

School Board Attorney 1960 East Druid Road Post Office Box 4688

Clearwater, Florida 34618

For the Respondent: Louis Kwall, Esquire

133 North Ft. Harrison Avenue Clearwater, Florida 34615

BACKGROUND INFORMATION

By memorandum dated April 4, 1988, Arthur M. Spinney, Director of Maintenance, School Board of Pinellas County, advised the Respondent that he was being reduced in grade classification and rate of pay because of alleged activity outlined in the memorandum. By letter dated April 8, 1988, Respondent's attorney advised the School Board through its counsel that Respondent appealed the demotion, and requested a formal hearing. Thereafter, the matter was referred to the Division of Administrative Hearings and assigned to the undersigned who, on May 11, 1988 set the case for hearing on June 2, 1988.

At the hearing, Petitioner Presented the testimony of Mr. Arthur M. Spinney, Director of Maintenance; and Homer Phillips, a maintenance supervisor with the Palm Beach County School Board, and introduced Petitioner's Exhibits 1 through 4. Respondent testified in his own behalf, Presented the testimony of Paul Currier, an acting maintenance supervisor in Respondent's old Position, and David P. Jackman, co-supervisor at the High Point School Board Office, and introduced Respondent's Exhibits 1 through 6.

Subsequent to the hearing, a partial transcript of the proceeding was filed and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Jesse Leon Thomas, Jr., was first hired by the School Board of Pinellas County in January of 1974 and before his demotion, had served as a maintenance supervisor, supervising sixty-seven people for between five and five and a half years.

   
   

2. In February, 1988, Respondent's driver's license was revoked for a period of five years. The order of revocation provided after one year that he could apply for an essential use driving permit for the purpose of driving in connection with his work.

   
   

3. Within the office of the Executive Assistant Superintendent for Institutional Services of the Pinellas County School System, maintenance work is divided into five general sections. These include the Technical Engineering Section, the Capital Improvement Force, the SJO section, the DEIS section, and the Emergency/Service section, of which three are headed by maintenance supervisors. Respondent Thomas, at the time of his demotion, was serving as the maintenance supervisor of the Capital Improvement Force. When demoted as a result of the loss of his driver's license, he was assigned the position of general foreman, under the maintenance supervisor of the Emergency- Service section.

   
   

4. Arthur M. Spinney is Director of Maintenance for the Pinellas County Schools and serves directly under the Executive Assistant Superintendent for Institutional Services. According to Mr. Spinney, a maintenance supervisor, supervises primarily trades people (roofers, carpenters, painters, etc.). As maintenance supervisor, Mr. Thomas reported directly to Mr. Spinney.

   
   

5. All maintenance supervisors are issued School Board owned motor vehicles to assist in the performance of their duties. The Pinellas County School Board Maintenance Department has a twenty-four hour a day response capability, which requires that one of the several maintenance supervisors within the system be on call during off-duty hours for approximately ten days a month. The on-call maintenance supervisor is expected to insure appropriate repair personnel are dispatched to the scene where needed, and if necessary, to go to the job site himself, in a supervisory capacity.

   
   

6. Mr. Spinney expected the maintenance supervisor of the Capital Improvement Force to visit each job site at which an active project was being accomplished by that force at least twice a week. The maintenance supervisor was charged with the responsibility of making separate, unscheduled visits to job sites on an unannounced basis as well.

   
   

7. Capital Improvement Force projects are those on which normally more than sixteen man-hours of labor are expended and which generally cost between four and five thousand dollars. Some projects may go considerably higher. The projects are often located at more than one job site, and may be located at any school property throughout the county. More than one job is accomplished at a time.

   
   

8. Within the Capital Improvement Force, the maintenance supervisor is assisted by a general foreman, who is assisted by several trades foremen. The

   maintenance supervisor is not expected to personally check daily on each project being supervised directly by a trades foreman. He has overall responsibility to insure that the general foreman and the trades foremen supervise the workers properly and is expected to make separate and unscheduled visits to the job sites to insure that the progress is appropriate.

   
   

9. Mr. Spinney did not take immediate action when Mr. Thomas first advised him of the situation involving the driver's license. However, when presented with proof of the revocation action, effective April 4, 1988, he demoted Mr. Thomas from the position of maintenance supervisor of the Capital Improvement Force, to the position of general foreman of the Emergency Task Force.

   
   

10. The Emergency Task Force generally works on projects involving less than sixteen man-hours. Mr. Spinney does not expect Mr. Thomas, in his capacity of general foreman of the Emergency Task Force, to routinely visit job sites because they would normally be completed before he could conduct an inspection. He is required to visit the sites on an as-needed basis and make periodic checks, but can go with the individual trade foreman.

    
    

11. Mr. Spinney is prepared to recommend Mr. Thomas for promotion to a maintenance supervisor position as soon as his driving license is restored and a maintenance supervisor position comes open.

    
    

12. Mr. Thomas contends that his completion of the routine office jobs while a maintenance supervisor left him only approximately eight hours per week for actual job site visits. Because of his routine office duties, and other duties such as special studies and teaching of training sessions, Mr. Thomas was rarely able to visit the job sites. As a matter of fact, during the five years immediately prior to his demotion, Respondent recalls going to a job site after regular hours on only two occasions and on both of those visits, his presence was not actually necessary. In fact, he has not driven a county vehicle home since July of 1987;

    
    

13. Possession of a driver's license is not listed as an essential criteria in the job description for maintenance supervisor. In some other jobs such a requirement is listed in the job description. When in 1979, Mr. Spinney concluded that a driver's license requirement should be included in the job description for maintenance supervisor his efforts to effect that change were disapproved by the school board.

    
    

14. As maintenance supervisor, Mr. Thomas dispatched qualified workers to job sites, a function he could fulfill by the use of a telephone or radio. When on call, he could be reached by telephone, mobile radio, or beeper, and when it was necessary for him to go to a job site, he could always travel with the general foreman or a trade foreman, who are in and out of the office, going to and from the various jobs sites on a continuing basis throughout the day. Any meetings he might have to attend as a maintenance supervisor are, almost without exception, conducted in the office where he worked. During the forty days after his driver's license was revoked, and before he was demoted, Mr. Thomas missed no calls requiring his presence due to his inability to drive.

    
    

15. The acting maintenance supervisor, filling Mr. Thomas's position since his demotion, indicated he has visited job sites on very few occasions, due to the large amount of paperwork involved in the position.

    
    

16. Since he has been serving as general foreman of the Emergency Services Section, Mr. Thomas has made more weekly visits to job sites than when he was

    maintenance supervisor of the Capital Improvement Force. All visits have been made as a passenger in a vehicle driven by another school board employee.

    
    

17. Mr. Thomas's work record during the period of time he has worked with the school system has been outstanding. There is no indication that the demotion was a result of poor duty performance or other instances of misconduct. Mr. Spinney contends that Respondent's driving revocation adversely affected his ability to serve as a leader, and required his demotion from the job of maintenance supervisor, but he has been satisfied with the Respondent's leadership as a general foreman.

    
    

18. Mr. David Jackman, in charge of the maintenance section's accounting department, has been twice convicted of driving while intoxicated. Even after his convictions, he was placed into that position and no disciplinary action was taken against him. This is explained by the fact that Mr. Jackman's job requires few visits outside the office. He can get to any meetings he is required to attend by riding with Mr. Spinney or someone else from the office. He was warned, however, after his second offense, that his conduct could affect his job.

    
    

19. While no formal requirement exists in the job description of a maintenance supervisor that the incumbent possess a valid driver's license, the job requires that the incumbent visit the work sites on both a periodic and an unannounced basis. It would be difficult, if not impossible, to insure that visits were unannounced if the supervisor were required to rely on other employees for his transportation to the work site. Consequently, the incumbent must have the means of independent travel to effectively accomplish the requirements of the position.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

    
    

21. The School Board of Pinellas County, through its delegated officers and employees, has the authority to impose such conditions as are reasonable and appropriate for the continued employment of personnel within the system. It is within the legitimate interests of the school board to insure that individuals placed in positions of supervision possess the tools, equipment and ability to fulfill the requirements of their position in an expedient and proper manner.

    
    

22. To insure these requirements are met, it would be appropriate for the school board to list in the written job description for the various positions into which it hires individuals, exactly what criteria, skills, and background prospective employees must have to fill those positions. The school board is not, however, required to delineate capabilities and qualifications in more than reasonable detail. In the instant case, the school board, through its employees, has indicated that those persons holding the position of maintenance supervisor will be capable of making unannounced and periodic scheduled visits to the work sites within the school system where employees are performing their various functions. To facilitate the ability of the maintenance supervisor to do this, each maintenance supervisor has been issued a school-owned vehicle. When a supervisor, by virtue of his own misconduct, and through circumstances over which he has control, makes it impossible for himself to fulfill the complete requirements of his job, he may be removed from that job, not as punishment, but because he no longer meets the criteria and qualifications of the job.

23. Here, the school board indicated its intention that maintenance supervisors be capable of driving school board vehicles to the various job sites, both during the duty day and in an on-call, post-duty day situation. While Mr. Thomas might be able to accomplish many of the routine site visits by riding as a passenger with the general or trades foreman under his supervision, he cannot readily be available to respond to after hours calls or to make the unannounced, surprise, on-site inspections anticipated of him. That he has failed to frequently make such inspections in the past when he had a driver's license does not excuse his inability to do so now.

    
    

24. The possession of a valid driver's license to facilitate the performance of his duties is a requirement of the job of maintenance supervisor, and when Mr. Thomas, through his own actions and as a result of his own activity, lost his ability to readily and effectively perform a particular function, it is within the perogatives of the school board to remove him from his position until such time as he again possesses all of the anticipated qualifications of the job.

RECOMMENDATION

It is, therefore recommended that the demotion of Mr. Thomas to the position of general foreman, be sustained.

Recommended in Tallahassee this 21st day of July, l98, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2094

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner:

1 - 2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4 - 6. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

11 - 12. Accepted and incorporated herein.

13 - 15. Accepted and incorporated herein.

16 - 17. Accepted and incorporated herein.

18 - 20. Accepted and incorporated herein.

By the Respondent:

1 - 2. Accepted and incorporated herein.

1. Accepted and incorporate herein.

2. Accepted and incorporated herein.

3. Accepted.

4. Accepted, but not complete in intent.

7 - 8. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Rejected as a misleading statement.

12 - 13. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

17 - 18. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein.

21 - 22. Accepted.

1. Accepted.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

6. Accepted and incorporated herein.

7. Rejected as not supported by evidence of record.

8. Accepted.

COPIES FURNISHED:

Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688

Clearwater, Florida 34618

Louis Kwall, Esquire

133 North Ft. Harrison Avenue Clearwater, Florida 34615

Docket for Case No: 88-002094

Orders for Case No: 88-002094