STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK W. SIMONSON, as )

Superintendent of Bay County ) Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0634

)

JOE T. ALFORD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, Before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 26, 1989. The parties filed proposed recommended orders on August 22, 1989. By operation of Rule 22I-6.031(2), Florida Administrative Code, the time requirements set out in Rule 28-5.402, Florida Administrative Code. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Franklin R. Harrison

Sale, Smoak, Harrison, Sale McCloy & Thompson

Post Office Drawer 1579 Panama City, Florida 32401

For Respondent: Pamela L. Cooper

Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether the School Board should terminate or take other disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated January 20, 1989, petitioner alleges that respondent Joe T. Alford, while "employed as a bus driver in the Transportation Department of the Bay County School District ... willfully neglected his duties

... in that: (a) he chronically failed to appear at work; (b) ... [and] did not properly enlist a substitute driver or contact a Route Manager prior to his absences; (c) [of which] he has had an excessive number ... [and that] (d) he has been untruthful with his supervisors concerning the nature of these absences all "in violation of Rule 6.12(e) of the policy of the Bay County School District." Petitioner seeks termination of respondent's employment.

FINDINGS OF FACT

1. Respondent Joe Thomas Alford, Jr., started working for the Bay County School Board in 1980, as a substitute school bus driver. His first full-time position with the School Board was as a "gasoline attendant," a position he assumed in 1981.

   
   

2. After Larry Daniels became superintendent of transportation in July of 1985, he granted Mr. Alford's request to be permitted to resume driving a school bus. By all accounts, Mr. Alford did a good job as a full-time bus driver through the end of the school year 1986-87, except for the day he received a speeding ticket while driving a school bus. On another occasion, he exhibited great courage, even heroism, as one of the drivers in a convoy returning from an athletic contest. When the lead bus had an accident that made it impossible for students to get out of the bus in the usual way, Mr. Alford climbed in through a window and kicked out the emergency door, leaking gas tank notwithstanding.

   
   

   1987-88

   
   

3. On the morning of October 16, 1987, Mr. Alford failed to report for work to drive school bus No. 340 on its three accustomed runs, necessitating the tardy dispatch of another driver. Later, in response to Mr. Daniels' questions, he explained that Harry Wells, a substitute school bus driver, had agreed to drive for him on the morning of the 16th (among other times), with the understanding that Mr. Alford would drive on a field trip for Mr. Wells.

   
   

4. It was to an apparent misunderstanding that Mr. Alford attributed his absence without giving notice or arranging for a substitute on October 16, 1987. At the time, school board procedure required a bus driver who was to be absent for any reason to arrange for a substitute, as Mr. Alford apparently thought he had done, and to report the arrangement to the payroll clerk at the office of the superintendent of transportation. But the agreement went unreported, and no approval of the exchange was ever obtained.

   
   

5. On October 26, 1987, Mr. Daniels, then superintendent of transportation, and Patricia Holland, route manager for routes including those Mr. Alford drove, Harry Wells and Mr. Alford gathered to discuss the lack of coverage on October 16, 1987. Mr. Alford told everybody present about his plan to drive on a field trip November 6, 1987, which would necessitate his missing the afternoon runs that day. He said (and Mr. Wells was there to deny it, if it had not been true) that Mr. Wells had agreed to substitute for him on the afternoon of November 6, 1987. Eventually this information reached Janet, who logged in Mr. Wells as a substitute for the afternoon runs on November 6, 1987.

   
   

6. On the morning of November 6, however, Mr. Alford failed to appear, again without giving notice and without arranging for a substitute. Again it was necessary to make belated arrangements for another driver. Later that morning, Mr. Alford telephoned to report that his wife had locked him out of his house, and that he had lost access to his personal effects.

   
   

7. He said that personal problems had prevented his driving that morning, and explained that, without clothes, he would be unable to drive on the field trip that afternoon, as well. In the afternoon, a substitute drove in his stead, without any report of inconvenience to anybody who went on the field trip.

8. On Monday, February 8, 1988, somebody called from Mowat Junior High School with word that school bus No. 340 had not arrived as of quarter past two that afternoon. Ordinarily, and according to schedule, the bus arrived at the school by two o'clock, was loaded by five past, then left Mowat on the first of three runs the bus made each afternoon. When the report that school bus No. 340 had not arrived at Mowat reached the transportation office, Mr. Carter looked in the bus barn out back and saw that the bus was still there. He himself, despite his supervisory position as route manager for the Rutherford district, made two of the three runs for which Mr. Alford was responsible, while another driver drove children home from Hiland Park school.

   
   

9. At no time on Monday afternoon did Mr. Alford communicate with the transportation office or with any of his supervisors or with anybody else employed by the school board. When he reported to work on Tuesday morning, he set out in school bus No. 340, without speaking to anybody in the transportation office. His supervisor, Patricia Holland, called Mr. Griffin, the assistant principal in charge of loading and unloading buses at Mowat and asked him to tell Mr. Alford to telephone.

   
   

10. Later in the day Mr. Alford did call. He said he had missed work the afternoon before because, coming back from Tyndall Air Force Base, he had had a flat tire. He said he had given a hitchhiker (who he purportedly picked up just before the problem with the tire) 50 cents for a telephone call and asked him to call the school board's transportation office to say he could not get to work. He also said that he was worried about his wife and believed that she had a tumor in her arm.

    
    

11. But nobody had telephoned the day before and, for the third time, respondent was orally reprimanded for not reporting for work and failing to give notice beforehand. At a meeting with his supervisors later in February of 1988, Mr. Alford declined to sign a document reciting these three lapses in his attendance record, although assigning the wrong date to one of them. No contemporaneous, independent, written records of counseling on October 16 and November 6 were prepared.

    
    

12. On the morning of April 7, 1988, Mr. Tucker of Mosley High School called at half past seven to report that school bus No. 340 was late. As he spoke, it arrived, although it had been due at 6:55 a.m. Unmollified, Mr. Tucker complained that such a late arrival was disruptive because a number of the children ate breakfast at the school and had to be fed, even if they were late. Respondent's supervisors discussed these matters with him that day, and a record was made of the counseling on April 7, 1988.

    
    

    1988-89

    
    

13. Before students returned for the next school year, all bus drivers hired for the 1988-89 term attended a meeting. In the future, the school bus drivers were told, they should report to the route manager for their district in an emergency or if, for some other reason, they would be unable to appear for work. Rather than making arrangements themselves, they were advised, they should let the route manager contact a substitute.

    
    

14. On the morning of October 12, 1988, at quarter of seven, Clarice Rehberg, the route manager for the Bay High School District (which is not the district in which Mr. Alford's route was located) received a telephone call from Mr. Alford, who said that he was in Pensacola, and that his car had broken down.

    He also told her that school bus No. 340 was in the shop for repair, so that a substitute driver would need another bus.

    
    

15. Finally, he let her know that the first scheduled pickup was to have been five minutes earlier at the cemetery on 17th Street. Despite Ms. Rehberg's prompt action, school children on all three runs to Mosley and Hiland Park were late for school that day. At all pertinent times, school bus drivers, including substitutes, were required to make a pre-trip inspection, which sometimes takes fifteen minutes, before driving a school bus in the morning.

    
    

16. The following morning at about five o'clock Ms. Rehberg received a second telephone call from Mr. Alford, who again reported that he was calling from Pensacola. He said that he had called Harvey Childress in hopes that Harvey would substitute for him that morning, but that Harvey told him that he was already driving. As the "barn book" reflected, Ms. Rehberg had already scheduled Mr. Childress to drive Mr. Alford's route, morning and afternoon, just as he had done the day before. It was just as well Ms. Rehberg had the foresight to arrange for Mr. Childress to drive that afternoon because Mr. Alford never showed up.

    
    

17. On Thursday, October 13, 1988, at about eight o'clock in the morning, Mr. Enterkin, who also drove a school bus for the Bay County School Board, spotted Mr. Alford and two friends in a car waiting at a stop sign. During the ensuing conversation, Mr. Alford told Mr. Enterkin that he was taking the rest of the week off. He also said something about having to go to Pensacola because he could not get the lights fixed on his new car.

    
    

18. On Thursday afternoon, Mr. Alford telephoned Mr. Conway, the new supervisor of transportation, telling him that he was at a service station in Pensacola waiting for money to be wired to fix his car.

    
    

19. On October 14, at about eight o'clock in the morning, Mr. Alford called and said that he was ready to go back to work. Mr. Conway asked him to come see him before he reported for any further duties as a bus driver. Missing a three o'clock appointment the following Tuesday, Mr. Alford appeared in Mr. Conway's office at three o'clock on Wednesday, saying that he must have gotten the days mixed up. The conversation between the men was short, to the point, and unpleasant. Mr. Conway suspended Mr. Alford with pay. On October 26, 1988, the school board suspended him without pay. The present proceedings followed.

    
    

    CONCLUSIONS OF LAW

    
    

20. Substantially affected by his suspension and proposed termination, respondent Alford requested a formal administrative hearing, and the school board referred the request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987).

    
    

21. Petitioner is entitled to continued employment, absent good cause for termination. The courts equate good cause with "failure ... to meet the criteria of Chapter 231, Fla. Stat." Von Stephens vs. School Board of Sarasota County 334 So.2d, 890, 894 (Fla. 2nd DCA 1970). At least as regards teachers, the court in Sherburne vs. School Board of Suwanee County, 455 So.2d 1057 (Fla. 1st DCA 1984) adopted the same definition, making particular reference to Section 231.02, Florida Statutes, (1985), which required that appointees be of good moral character. See also Greene vs. School Board of Hamilton County, 44 So.2nd 500, (Fla. 1st DCA 1984) and Foreman vs. Columbia County School, 429 So.2nd 383 (Fla. 1st DCA 1983).

22. Chapter 231 provides that members of the district administrative staff may be suspended or dismissed for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude." Section 231.36(6)(b), Florida Statutes (1986 Supp.) Proof of one or more of these grounds would establish good cause for the School Board to take action against respondent.

    Von Stephens vs. School Board of Sarasota County, 334 So.2d 890 (Fla. 2nd DCA- 1970).

    
    

23. The specifications here do not allege gross insubordination, drunkenness, immorality, or commission of a crime involving moral turpitude. Counsel for the school board represented that the rule on which petitioner relies proscribes willful neglect of duty, and the administrative complaint alleges willful neglect of duty. The school board's burden is to prove this ground by a preponderance of the evidence. South Florida Water Management District vs. Caluwe, 450 So.2nd 390, 394 (Fla. 4th DCA 1984). See Department of Corrections vs. Dixon, 436 So.2nd 320, (Fla. 1st DCA 1983); Florida Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So.2nd

412 (Fla. 4th DCA 1974). The school board has met its burden here.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner terminate respondent's employment.

DONE and ENTERED this 3rd day of November, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 3rd day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0634

Petitioner's proposed findings of fact Nos. 1 through 5 and 7 through 18 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 6, it was not clear that he needed approval from anybody other than the substitute at that time.

Petitioner's proposed finding of fact No. 19 is properly a conclusion of

law.

Respondent's proposed findings of fact Nos. 1 through 4, 6 through 9, 15,

16, 23, and 26 have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 5, 28 through 31, and 32 pertain to immaterial matters.

Respondent's proposed findings of fact No. 10, 14, 17 through 20, 22, 27, and 33 relate to subordinate matters.

With respect to respondent's proposed finding of fact No. 11, the evidence did not show any understanding that Mr. Wells had agreed to take the morning run on November 6, 1987.

With respect to respondent's proposed finding of fact No. 12, there was no morning route to Perry, and he supposedly stayed with the car.

With respect to respondent's proposed finding of fact No. 13 the respondent did not give notice he was going to be absent. The hearing officer has not seen a hearing transcript.

With respect to respondent's proposed finding of fact No. 21, the weight of the evidence showed he did not place a call to Ms. Holland on October 12, 1988.

With respect to respondent's proposed finding of fact No. 24, the route was not "covered" on time.

With respect to respondent's proposed finding of fact No. 25, respondent did not tell Ms. Rehberg in advance that he was not going to report for the afternoon run on October 12, 1989.

With respect to respondent's proposed finding of fact No. 34, the evidence demonstrated knowing, intentional disregard of instructions to let people know of impending absences far enough ahead of time for other arrangements to be made.

Respondent's proposed finding of fact No. 35 is properly a conclusion of

law.

COPIES FURNISHED:

Jack W. Simonson

Superintendent of Bay County Schools 5205 West Highway 98

Panama City, Florida 32401

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Franklin R. Harrison

Sale, Smoak, Harrison, Sale McCloy & Thompson

Post Office Drawer 1579 Panama City, Florida 32401

Pamela L. Cooper

Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302

Docket for Case No: 89-000634

Orders for Case No: 89-000634