STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6873

)

RAYMOND HENDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Brooksville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 7, 1991, and finished the following day. The Division of Administrative Hearings received the hearing transcript on June 12, 1991. After grant of a stipulated motion for extension of time to file proposed recommended orders, the parties filed proposed recommended orders on July 2, 1991. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: John T. Jaszczak, Esquire

Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue Tampa, Florida 33606

For Respondent: Sally C. Gertz, Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUES

Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?

PRELIMINARY STATEMENT

By specific notice of charges dated September 11, 1990, petitioner alleges that respondent "reportedly used profane language in front [of] and/or directed at students while driving a school bus for the Hernando County School Board . .

. repeatedly operated the bus . . . in an unsafe and/or improper manner . . . continually failed to utilize and/or follow proper procedures and practices in handling students . . . [and] failed to properly control the students . . . so as to insure proper seating [,] discipline and safety." The specific notice of charges also alleged "[n]umerous and repeated complaints by students, parents and law enforcement officials . . . numerous investigations and conferences," a

suspension "without pay for safety problems in the 1989-90 school year," and an "unacceptable" "attitude towards departmental management, students and others." An appendix to the specific notice of charges sets out "supporting details." Respondent's Exhibit No. 10.

FINDINGS OF FACT

1. After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988.

   
   

   1987-1988

   
   

2. After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id.

   
   

3. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392.

   
   

4. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256.

   
   

5. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state:

   
   

   Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do.

   
   

   Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b).

   
   

6. On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396)

   
   

7. Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too.

8. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave.

   
   

9. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home.

   
   

10. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order.

    
    

11. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4.

    
    

12. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277.

    
    

    1988-1989

    
    

13. Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene.

    
    

14. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.)

    
    

15. Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108.

    
    

16. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street.

    
    

17. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway.

18. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection.

    
    

19. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student.

    
    

20. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops.

    
    

21. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident.

    
    

    Two Minutes

    
    

22. Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423.

    
    

23. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning.

    
    

24. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show.

    1989-1990

    
    

25. When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago.

    
    

26. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530.

    
    

27. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens.

    
    

28. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver.

    T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked.

    
    

29. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429.

    
    

30. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502.

    
    

31. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A.

    
    

32. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436.

33. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496.

    
    

34. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id.

    
    

35. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly.

    T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson.

    
    

36. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.

    
    

    CONCLUSIONS OF LAW

    
    

37. Since the Hernando County School Board referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

    
    

38. Chapter 231, Florida Statutes (1989) 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 disciplinary action against respondent. See Von Stephens vs. School Board of Sarasota County, 334 So.2d 890 (Fla. 2nd DCA 1970); Sherburne vs. School Board of Suwanee County, 455 So.2d 1057 (Fla. 1st DCA 1984); and Greene vs. School Board of Hamilton County, 444 So.2d 500 (Fla. 1st DCA 1984).

    
    

39. None of the specifications here are properly construed to allege gross insubordination, drunkenness, or commission of a crime involving moral turpitude. In this case, therefore, the School Board must prove immorality, misconduct in office, incompetency or willful neglect of duty. The School Board's burden is to prove one such ground by a preponderance of the evidence. South Florida Water Management District vs. Caluwe, 459 So.2d 390, 394 (Fla. 4th

    DCA 1984). See Department of Corrections vs. Dixon, 436 So.2d 320 (Fla. 1st DCA 1983); Florida Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

    
    

40. In demonstrating a basis for disciplinary action, petitioner cannot rely only on misconduct or neglect as to which petitioner has already taken final agency action. But respondent's speeding and his failure to inspect the bus lights may properly be considered in aggravation, because petitioner has proven other incidences of misconduct in office, including violations of local school board policies, among which are those adopted in conformity with Rule 6A- 3.017(1)(d)(2)(g), Florida Administrative Code. Petitioner has proven just cause to terminate Mr. Henderson's employment as a school bus driver.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner dismiss respondent as a school bus driver.

DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 12th day of August, 1991.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11,

12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62,

63, 66, 67 and 68 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988.

With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn."

With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus.

With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans.

Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing.

Petitioner's proposed finding of fact No. 65 is not supported by citation to the record.

With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking."

Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13,

14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37

and 39 through 44 have been adopted, in substance, insofar as material.

Respondent's proposed finding of fact No. 7 is a proposed conclusion of

law.

With respect to respondent's proposed finding of fact No. 12, she testified

she was the only black.

With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children.

With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house.

With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided.

With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently.

COPIES FURNISHED:

John T. Jaszczak, Esquire

Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350

324 S. Hyde Park Avenue Tampa, FL 33606

Sally C. Gertz, Esquire

118 North Monroe Street Tallahassee, FL 32399-1700

Dr. Daniel L. McIntyre, Superintendent Hernando County School Board

919 U.S. 41 North

Brooksville, FL 34601

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. 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 90-6873

RAYMOND HENDERSON,

Respondent.

/

ORDER

THIS CAUSE came on for Rehearing before the School Board of Hernando county, Florida, on the Recommended Order of Robert T. Benton, II, Hearing Officer, after due Notice to the Respondent, Raymond Henderson, and the Respondent and his attorney being present and afforded an opportunity to be heard, and after due consideration, it is hereby

ORDERED that the Recommended Order of the Hearing officer entered in these proceedings under date of September 12, 1991, and filed in the office of the Division of Administrative Hearings in Tallahassee, Florida, be and the same is hereby accepted, adopted and approved, except as follows:

Paragraphs one (l) and two (2) of the Recommended Order are hereby deleted because Florida Statutes 231.36 applies to school staff personnel and not to bus drivers. In lieu thereof the following is substituted:

Florida Statute 230.23(5)(f) provides that members of the District School Board may suspend or dismiss school employees.

Adequate proof has been found to justify the dismissal of Respondent as a school bus driver and employee of the School Board of Hernando County, Florida.

DONE AND ORDERED at Brooksville, Florida, this 10th day of December, 1991.

SCHOOL BOARD OF HERNANDO COUNTY, FLORIDA,

Paul Clemons, Chairman

Leland P. McKeown, Member

Diane Rowden, Member

Susan Cooper, Member

Docket for Case No: 90-006873

Orders for Case No: 90-006873