STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5887

)

ZELMA GOSS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 14, 1990, in St. Augustine, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Michael K. Grogan

Timothy B. Strong Attorneys at Law 2065 Herschel Street

Post Office Box 40089 Jacksonville, FL 32203

For Respondent: Thomas W. Brooks

Attorney at Law

Post Office Box 1547 Tallahassee, FL 32302

STATEMENT OF ISSUES

The issue is whether Zelma Goss should be dismissed from her position as a school bus driver for the St. Johns County School Board for the reasons stated in the Formal Petition of Charges.

PRELIMINARY STATEMENT

This case and a related case, DOAH No. 90-5886, were heard in the same hearing to avoid duplication of testimony; however, separate Recommended Orders are entered in each case. The transcript of the combined hearing was filed on January 28, 1991. The parties' proposed findings of fact and conclusions of law were filed on February 8, 1991. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Zelma Goss has been employed as a bus driver by the School Board of St. Johns County since November 1975. During that time, she has had an unblemished record of performance as a bus driver.

   
   

2. At about 3:15 p.m. on August 27, 1990, Ms. Goss was completing her afternoon bus route when she heard Debra Sapp call for help over the radio.

   
   

3. Ms. Sapp ordinarily does not drive a bus because she was the Route Specialist. On this day, the first day of school, Ms. Sapp had to pick up a bus load of students who had been returned to Ketterlinus Middle School because of severe misbehavior on the bus.

   
   

4. Ms. Sapp had to stop the bus one time to separate two boys. A few minutes later the bigger boy returned to the front of the bus and began beating the smaller boy with his fists. Ms. Sapp stopped the bus and tried to stop the fight. She was unable to separate the boys, and as the beating continued she radioed for help and requested assistance from the Sheriff's Department. A couple of minutes later she again radioed for help.

   
   

5. After there was no response from other drivers, Ms. Goss contacted Ms. Sapp and asked if she could help.

   
   

6. After she finished her route, Ms. Goss went to the location of Ms. Sapp's bus and noticed that there were a number of school administrators and law enforcement officers present and that the students on Ms. Sapp's bus were hanging out the windows, yelling obscenities and otherwise acting completely out of control.

   
   

7. Ms. Goss, who was familiar with these students because she had transported them during previous years, got on the bus and attempted to gain control of the students' behavior. She succeeded in calming all of the students down except Joe Bailey, who refused her directions and would not come to the front of the bus to sit.

   
   

8. Joe Bailey was removed from the bus by a Deputy Sheriff and instructed to behave. At approximately 4:00 p.m., Ms. Sapp said that she believed that they could proceed to transport the students home and Ms. Goss volunteered to drive. Ms. Sapp went back and sat toward the back of the bus. Joe Bailey was put back on the bus by a Deputy Sheriff and instructed to behave.

   
   

9. Ms. Goss had had problems with several of the students on the bus in the past, particularly with Joe Bailey. Ms. Goss' reporting of Bailey's misconduct had resulted in his being suspended from school in the past.

   
   

10. The bus route continued uneventfully until Ms. Goss reached the corner of D and 5th Street, at which point the students began to stand up and holler when they saw a brown pickup truck nearby.

    
    

11. The truck was driven by a former student, Jason Schofield, who had been a troublemaker.

    
    

12. At this point in time, the bus was stopped at the stop Joe Bailey normally exited. Because she was keeping her eye on Mr. Schofield's truck, Ms. Goss did not notice as she pulled away from that stop that Joe Bailey had not gotten off. While she was discussing this matter with Ms. Sapp and stating that

    Mr. Bailey could get off at the next stop, Ms. Goss noticed Mr. Schofield's truck pulling in behind the bus, tires squealing, having come out so fast that he cut off a white car following the bus.

    
    

13. At the next stop, Ms. Goss and Ms. Sapp told Joe Bailey several times to get off the bus. As Mr. Bailey finally moved to leave the bus, he called Ms. Goss a bitch, struck Ms. Goss firmly in the back of the head, and quickly ran off the bus. As she was struck, Ms. Goss instinctively threw up her hands in protection and noticed Bailey making obscene gestures at her and calling her names. Bailey walked in front of the bus, across the road and, standing on the left edge of the road, continued to make obscene gestures and comments at Ms. Goss and dropped his pants, "mooning" her.

    
    

14. As she started the bus moving forward, Ms. Goss turned the steering wheel quickly to the left and then immediately back to the right in an instinctive reaction to get Bailey's attention. This movement of the steering wheel lasted approximately two seconds. At the same time, Ms. Goss was yelling out of the window to Bailey that she intended to press charges against him. Ms. Sapp described the motion of the bus by saying, "it went forward very wiggly." The bus quickly crossed the middle line by eight to ten inches and returned to the right lane.

    
    

15. Ms. Goss did not steer the bus at Bailey, nor did she intend to strike him with the bus. Furthermore, the bus never came anywhere near hitting Bailey and did not pose any real danger to him.

    
    

16. As Ms. Goss was continuing to the next stop, Ms. Sapp began screaming in the back of the bus, "Don't stop." Ms. Goss stopped the bus at the next stop anyway and, as she opened the door, Jason Schofield came up to the driver's window on the left hand side of the bus and began beating on the side of the bus.

    
    

17. Schofield said to her, "Lady, what is your problem?" Ms. Goss stated that she did not have a problem and did not say anything else to him.

    
    

18. Mr. Schofield returned to his truck and pulled out around the bus, speeding through the stop signal before all of the students had completely crossed the road in front of the bus.

    
    

19. Ms. Goss completed the bus run and returned to where she had left her

    bus.

    
    

20. In discussing the situation with representatives of the

    administration, Ms. Goss admitted swerving the bus, but she did not state that she had swerved the bus at Bailey or in an effort to strike Bailey.

    
    

21. For his actions that day, Joe Bailey was expelled for the entire school year.

    
    

22. Two students and a passenger in Schofield's truck told their versions of what occurred that day. All three were simply unbelievable and their stories were entirely lacking in credibility. Their testimony is rejected. The passenger's story is impossible and clearly false.

    
    

23. The only two people actually on that bus who were credible witnesses were Ms. Goss and Ms. Sapp. Neither testified that Ms. Goss actually swerved the bus at Joe Bailey in any manner which placed him in any danger.

24. St. Johns County School Baord Rule 6Gx 55-8.06 provides: Responsibilities of School Bus Driver

    It shall be the responsibility of the school bus driver under the regulations of the School Board to perform all duties as follows:

    
    

    (11) Relationship to other personnel

    
    

    (c) Pupils

    (1) The bus driver shall be responsible for the safety of the pupils on his bus and shall be constantly on the alert for

    any condition that would endanger their safety.

    
    

25. The primary emphasis of the School Board's policy on transportation of students is ensuring the safety of the students.

    
    

26. A bus driver's primary responsibility is to maintain the safety of the students.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

28. The burden of proof in proceedings such as these requires that the School Board prove its allegations by a preponderance of the competent, substantial evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).

    
    

29. Goss is charged with misconduct in office, willful neglect of duty, endangering the safety of students, and intentional and reckless operation of a School Board vehicle. See the Formal Petition of Charges, paragraph #8.

    
    

30. The conduct of noninstructional employees is measured against the same standards as instructional employees in regard to allegations of misconduct and willful neglect of duty. Rutan v. Pasco County School Board, 435 So. 2d 399 (Fla. 2d DCA 1983); Smith v. School Board of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981. Further, the Smith court permitted an exception to this standard when it said,

    
    

    If the Board wishes to articulate policy which sets different standards of conduct for its

    administrative employees than for its instructional personnel, it is not precluded from doing so as long as there is a record foundation in support of that policy.

    
    

    Smith, supra at 185.

31. The School Board has articulated policy which sets different standards for allegations of misconduct, willful neglect of duty, endangering the safety of students, and intentional and reckless operation of a School Board vehicle as these terms are applied to school bus drivers. The School Board has clearly articulated by Rule 6Gx 55-8.06 the standards of conduct to be applied to school bus drivers. Ms. Goss received thorough training in the procedures she was to follow to ensure compliance with these policies and standards.

    
    

32. Rule 6Gx 55-8.06 supplements the rule definition of misconduct in office as established for teachers in Rule 6B-4009(3), Florida Administrative Code. Violation of the rules, policies, and procedures of the School Board constitutes misconduct by a noninstructional employee. Additionally, the concept of "willful neglect of duty" is further articulated by the School Board where, as here, it has established specific duties by rule and policy and it has clearly articulated to the noninstructional employee the expected scope of duties.

    
    

33. In this case, the School Board has simply failed to carry its burden of proof that Ms. Goss engaged in any of the violations alleged. She is not guilty of misconduct in office, willful neglect of duty, endangering the safety of students, or intentional and reckless operation of a School Board vehicle. At worst, Ms. Goss merely suffered a two second lapse in what has been almost sixteen years of exemplary service. At no time was the safety of any student endangered or threatened. Clearly no injury occurred. Ms. Goss should be exonerated.

    
    

34. In light of the seriousness of the allegations and the momentary lapse of judgment, it is however concluded that the period of time during which Ms. Goss has been suspended without pay should stand as a more than adequate penalty. Ms. Goss should be immediately reinstated to her position.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Johns County enter a Final Order

exonerating Zelma Goss from the alleged misconduct and immediately reinstating her to her position as a school bus driver.

DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th

day of February, 1991.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5887

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, School Board of St. Johns County

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1);

   4-6(24-26); 8(2); and 11(21).

2. Proposed findings of fact 7, 9, 10, 12-16, 23-28, and 32 are subordinate to the facts actually found in this Recommended Order.

3. Proposed findings of fact 1, 2 and 29 are unnecessary.

4. Proposed findings of fact 17, 18, 20-22, and 30 are unsupported by the credible, competent and substantial evidence.

5. Proposed findings of fact 19 and 31 are irrelevant.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Zelma Goss

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2&5); and 3-17(6-20).

COPIES FURNISHED:

Michael K. Grogan Timothy B. Strong Attorneys at Law 2065 Herschel Street

Post Office Box 40089 Jacksonville, FL 32203

Thomas W. Brooks Attorney at Law

Post Office Box 1547 Tallahassee, FL 32302

Otis A. Mason, Superintendent St. Johns County School Board

40 Orange Street

St. Augustine, FL 32084

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005887

Orders for Case No: 90-005887