STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF VOLUSIA COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8269

)

JAMES GRAVELDING, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 7, 1992, in Deland, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Deborah S. Crumbley, Esquire

Thompson, Sizemore & Gonzalez

109 North Brush Street Suite 200

Tampa, Florida 33602

For Respondent: Thomas J. Pilacek, Esquire

601 South Lake Destiny Road Maitland, Florida 32751

STATEMENT OF THE ISSUE(S)

1. May Respondent's annual contract as non-instructional personnel (school bus driver) for the 1991-1992 school year be lawfully terminated by Petitioner School Board?

   
   

2. Does Respondent retain any rights to renewal of his annual employment contract under the circumstances of this case?

PRELIMINARY STATEMENT

Respondent, an annual contract employee of Petitioner for the 1991-1992 school year was notified by Petitioner in a November 7, 1991 letter that he was suspended with pay on November 6, 1991 and that sequential recommendations for suspension without pay would be proposed on November 12, 1991 and for dismissal on November 26, 1991. The parties are agreed that for purposes of any award, de facto termination of Respondent occurred on November 7, 1991.

Respondent exercised his option under an AFSCME collective bargaining agreement to invoke Section 120.57(1), F.S., in lieu of any other forum or proceeding. The Petitioner School Board referred the case to the Division of Administrative Hearings.

Upon due notice, formal hearing was convened on July 7, 1992. Petitioner School Board presented the oral testimony of Duane Bussie, who, at all times material, was the School Board's Chief Personnel Officer; Barbara Ivey, the School Board's Southeast Area Transportation Supervisor; Don Crawford, Operations Administrator for the School Board's Transportation Department; and John Hossfield, Director of Plant Services with the School Board. Petitioner had 17 exhibits admitted in evidence out of 20 offered. Petitioner's proffer of other matters is preserved at pages 88-97, and 134 of the transcript, but Petitioner's Exhibits 14, 15, and 16 have not been admitted or considered.

Respondent testified on his own behalf and had two exhibits admitted out of two offered.

A transcript was filed August 10, 1992. Petitioner filed a proposed order on September 4, 1992, the findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S. Respondent filed no posthearing proposals.

FINDINGS OF FACT

1. Respondent, James Gravelding, was hired by Petitioner School Board in February 1989 as a school bus driver.

   
   

2. With the exception of tenured teachers, all School Board employees, including those employees covered under the AFSCME collective bargaining agreement, are employed on an annual contract basis for a period not exceeding one year. At all times material, Respondent was an annual contract employee covered under the AFSCME agreement. Neither Respondent's employment contract nor the collective bargaining agreement provide any recourse for an employee who is not reappointed for a succeeding school year. The School Board has absolute discretion to reappoint or not reappoint any annual contract employee by a new annual contract at the end of each school year/contract term.

   
   

3. Respondent was first employed on annual contract from February 1989 to June 1989. That annual contract and succeeding annual contracts covered the 1989-1990 school year, the 1990-1991 school year, and the 1991-1992 school year.

   
   

4. During the course of his 1991-1992 annual contract, on November 7, 1991, Respondent was recommended for termination. The reason for the termination recommendation was Respondent's alleged violation of School Board policy with regard to the reporting of accidents. The charging document specifically stated:

   
   

   This action was necessitated by your failure

   to follow School Board Transportation Procedures in general, and Procedure (504.1)(6.B.) (Reporting of Accidents) in particular.

   
   

5. Petitioner School Board's policy at (504.1) (6.B.) (Reporting of Accidents) is published in the "School Bus Drivers and Aides Handbook" and provides:

   6.B. REPORTING OF ACCIDENTS:

   
   

   Drivers of school board vehicles will be required to report all accidents, violations, citations occurring in school board vehicles,

   suspensions, and/or revocations of driver license. Failure to report or inaccurate reporting shall be grounds for termination of employment. Accidents in a board owned vehicle must be reported at the

   time of the accident to the transportation department and in accordance with Florida Statute 316.065: "The driver of a vehicle involved in an accident resulting in injury to or death of any persons or property damage, shall immediately by the quickest means of communication, give notice of the accident to the local police department, if such accident occurs within a municipality; otherwise, to the office of the county sheriff of the nearest office or station of the Florida Highway Patrol.

   
   

6. Respondent had received a copy of and was aware of the foregoing policy.

   
   

7. On October 21, 1991, Respondent was driving his usual morning route in a substitute school bus, starting from the New Smyrna Beach school bus terminal. He left the terminal at 6:15 a.m. to pick up and deliver approximately 51 high school students. At approximately 6:45 a.m. he had all of the high school students loaded on the bus. At that time, he made a left- hand turn at the intersection of Indian River Boulevard and Route One, hitting a child who was chasing the bus by running in the inside turn lane. Either the child's foot or leg was injured at that time. It was not yet daylight, and Respondent did not see the child before or after the accident. Respondent felt no "bump" and was unaware that the accident had occurred. However, at that time, he was aware of a number of students standing in the back of the bus, looking out the window. These students only sat down after about ten minutes. No one immediately reported the accident to Respondent.

   
   

8. At approximately 7:00 a.m., (fifteen minutes after the accident and five minutes after the children sat down) Respondent completed delivery of the high school students to New Smyrna Beach High School. As they exited the bus, one student reported to Respondent that he thought Respondent had run over a child's foot at the Indian River Boulevard and Route One intersection. Although Respondent's testimony wobbled on whether or not other students concurred with the spokesman who made the oral accident report to Respondent, the portion of Respondent's testimony to the effect that several students concurred in the oral report and his prior admission that several students concurred in the oral report are accepted here.

   
   

9. Respondent testified that he had assumed that the students were kidding about the accident and told them so. He made this assumption despite the fact that he had never been lied to by the students involved and despite the fact that Respondent regarded the spokesman as a pretty good kid. Respondent further admitted there were no indicators of dishonesty in the students' report. He simply felt the accident report to him by a few students when he stopped at New Smyrna Beach High School approximately fifteen minutes after the accident occurred could not be true because if it had been true, the majority of the

   other students should have said something to him at the precise time of the accident.

   
   

10. After the high school students exited his bus, Respondent drove behind the high school and tried to call his supervisor, Barbara Ivey, who was based in Daytona. He overheard someone else calling her and discovered she was out that day on leave. Standard procedure was for a substitute supervisor to be on duty. Respondent made no further attempts to report the alleged accident to that supervisor or to anyone else until much later, despite the fact that at all times material he had a working radio in his bus and knew that a dispatcher was on duty to take all radioed calls from drivers.

    
    

11. Respondent also did not go into the high school to make a report to the high school principal or to contact School Board administrators by telephone. Respondent merely went on to complete his next two bus runs.

    
    

12. Respondent completed his pickup and delivery of elementary students at approximately 7:50 a.m. He did not go into the elementary school to make a report to the elementary school principal or contact School Board administrators by telephone.

    
    

13. At approximately 8:00 a.m., Respondent began his pickup of middle school children. Either while still on his middle school run or after completing his middle school run and while on his way back to the New Smyrna Beach school bus terminal, a dispatcher contacted Respondent by radio and asked him to telephone Mr. Crawford, Operations Administrator for the School Board's Transportation Department. No reason for this request was given by the dispatcher to Respondent, but in fact, Mr. Crawford had heard about the alleged accident from other sources and was trying to determine which bus was involved. Respondent did not report the alleged accident to the dispatcher when he received this notice to call Mr. Crawford. Respondent never went into the middle school to make an accident report to the principal or to contact School Board administrators by telephone.

    
    

14. After he returned to the New Smyrna Beach school bus terminal, where there were no supervisors, Respondent consulted some older bus drivers and relied on their suggestion to make out an accident report form. When he could not find an accident report form, he made a very cursory explanation of events on a "suggested complaint form."

15. Respondent's explanation on the "suggested complaint form" read only: student told me while unloading at High School

    that a kid was chasing Bus thru (sic) intersection

    of Indian River Blvd. and Route 1. I had no knowledge of this

    
    

16. Respondent then placed the suggested complaint form in the interoffice mail at the New Smyrna Beach school bus terminal so that the form was received by his supervisor, Mrs. Ivey, in her Daytona office the next morning when she reported back to work. It is conceivable that the form arrived in her office the afternoon of the accident, but there is no clear proof to that effect. Respondent conceded that if one were certain that an accident had actually occurred, this method would not be the quickest way to report it.

    
    

17. Only at that point, after putting the "suggested complaint form" in the interoffice mail, at approximately 9:00 a.m., did Respondent telephone Mr.

    Crawford from the New Smyrna Beach school bus terminal. The entire content of this conversation is in dispute, but it is abundantly clear that Respondent never volunteered any information to Mr. Crawford to the effect that he may have accidently hit a student with his bus, injuring the student. Respondent then went home.

    
    

18. About 10:00 a.m., the dispatcher summoned Respondent from his home to the terminal where he met with various School Board administrators, including Mr. Crawford, and an officer of the Edgewater Police Department, who informed Respondent he had been involved in a hit and run. Only after this conversation did School Board administrators have a chance to interview the Respondent or go to the hospital to interview the injured child.

    
    

19. The purpose of the School Board's accident report policy is to ensure the safety of school children and to permit immediate response and investigation of accidents by the School Board and by law enforcement for purposes of criminal/traffic prosecutions and defense of civil liability/damages actions.

    
    

20. The radio dispatcher system was instituted during Respondent's period of employment so there would be communication with the buses all of the time that school buses were in service. Administrators are on call 24 hours a day in the event a serious problem occurs and can be "beeped" by the bus dispatcher.

    
    

21. Respondent was aware at all times that his bus radio was available for just the type of emergency situation as occurred on October 21, 1991. During the preceding school year (the 1990-1991 school year), while Respondent was driving a school bus, one of his child passengers was injured and another child passenger reported the injury to Respondent. On that occasion, Respondent immediately pulled the bus over and reported the accident by radio to the dispatcher.

    
    

22. When the School Board investigated the October 21, 1991 accident, no points were assessed against Respondent either by a point system adopted under School Board policy or under a point system adopted by the State of Florida. Respondent also was not prosecuted by the authorities for any traffic infractions or for injury to the child. The record is barren of any information as to whether or not any civil liability or damages were assessed against Respondent or the School Board as a result of this accident.

    
    

23. Subsequent to the October 21, 1991 accident, Respondent was not processed through a Safety Committee review of a graduated point system established under (505)I, (505)II, (505)IV, (505)V, (505)VI and (504.1) (6.D. and F.) of the School Board "Support Services Policies." However, it was not shown that those policies superseded policy (504.1)(6.B.) (Reporting of Accidents) which specifically requires termination of employees for failures and inadequacies of accident reporting. There is no School Board policy that mandates graduated disciplinary actions in place of mandatory termination under (504.1) (6.B.) (Reporting of Accidents). The AFSCME collective bargaining agreement does not require graduated discipline before dismissal.

    
    

24. School Board Policy (505)II utilizes language identical to the termination policy of (504.1) (6.B.). Moreover, the job of school bus driver is one in which driving constitutes an essential part of the job duties, and Policy (505)VI B. provides, in pertinent part:

    
    

    When an employee of the school district is terminated as a driver, the committee shall

    determine whether driving constitutes an essential part of the employee's job duties. If driving

    is an essential part of the job duties 'termination as a driver' shall result in termination of the employee's employment with the school district. . .

    
    

25. Prior to the 1991-1992 contract period, Respondent had not had an exemplary employment history with the School Board, even though all concerned admitted he was a technically proficient school bus driver. He almost had not been recommended for re-employment for the 1991-1992 school year due to marginal performance. The problems experienced by the administration in connection with Respondent involved a history of actual violations and of numerous unproven complaints against him for unprofessional behavior, violation of smoking, drinking, and dress policies, and a prior minor preventable accident.

    Respondent had conferenced repeatedly with administrators and had always promised improved behavior and policy compliance. Prior to the date of accident herein, he had cleared up all his prior deficiency points through in-service training, recertification, and riding evaluations by safety officers. However, previously, on March 28, 1991, as a condition of rehiring him on annual contract for the 1991-1992 school year, the School Board had required him to do certain things and had specifically warned him in writing that any further proven policy violations of any type would result in termination.

    
    

26. On November 7, 1991, after investigation of the October 21, 1991 incident was completed, Respondent was terminated from his 1991-1992 annual contract. See Finding of Fact 4, supra.

    
    

27. Respondent was not offered an annual contract for the 1992-1993 school year.

    
    

    CONCLUSIONS OF LAW

    
    

28. This cause has presented some peculiar, perhaps unique, problems with regard to jurisdiction and as to which burden of proof is appropriate for application herein, if jurisdiction applies.

    
    

29. Section 447.401, F.S., provides, in pertinent part:

    
    

    Each public employee and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance procedure

    shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties;...However, an arbiter or other neutral shall not have the power to add to, subtract from, modify, or alter the terms of the collective bargaining agreement...

    
    

30. In response to this requirement, the School Board herein negotiated with AFSCME, Respondent's union, a 1989-1991 collective bargaining contract, which provides, in pertinent part:

    
    

    1. An employee may be disciplined only for just cause. ... The employee's right of appeal

       shall include either a Chapter 120 hearing conducted by a Department of Administration Hearing Officer or the grievance procedure included herein.

    2. Disciplinary actions shall include, but not necessarily in this order, the following:

       1. Oral reprimand

       2. Written reprimand

       3. Demotion

       4. Suspension without pay

       5. Dismissal

       
       

31. At all times material to this case, that contract remained in full force and effect due to a negotiated and agreed extension thereof.

    
    

32. Respondent herein selected a Chapter 120.57(1), F.S., formal hearing before a hearing officer of the Division of Administrative Hearings in lieu of any grievance procedure. Both parties have consistently operated on the assumption that "Department of Administration," as used in the AFSCME collective bargaining agreement, and "Division of Administrative Hearings" are synonymous. Although that is not the case, it should be noted that this same collective bargaining agreement was determined to confer jurisdiction upon the Division of Administrative Hearings in the Recommended Order entered in School Board of Volusia County v. Florio, DOAH Case No. 89-6360 (Recommended Order entered August 20, 1990; date or content of Final Order unknown). Therefore, upon the parties' stipulation and the foregoing authority, it is concluded that the Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

    
    

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

    
    

34. Herein, both parties asserted at formal hearing that the burden of proof herein is "just cause," per the language of the collective bargaining agreement. In its posthearing submittals, the Petitioner School Board has further argued that not only is the burden of proof "just cause," but that the term "just cause" should be interpreted to coincide with Rule 22A-10.0046, Florida Administrative Code, which rule is applicable only to state career service employees, and/or that "just cause" is synonymous with arbitration decisions involving interpretation of "just cause" provisions in collective bargaining agreements and that, somehow, all this is synonymous with a "preponderance of the evidence test," citing Dileo v. School Board of Dade County, supra.; Ferris v.Austin, 487 So.2d 1163 (Fla. 5th DCA 1986) and Florida Dept. of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 fn. 2 (Fla. 4th DCA 1974), citing De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957).

    
    

35. However, it is here recognized and concluded that this proceeding cannot be legitimately used as a vehicle to interpret the collective bargaining agreement, which is the exclusive jurisdiction of the Public Employees Relations Commission (PERC). See, the specific language of Section 447.401, F.S., supra.; HRS v. Allen, DOAH Case No. 91-6197 (Recommended Order entered January 27, 1992; (adopted in toto in Final Order issued February 21, 1992; filed February 27, 1992); and School Board of Pinellas County v. McKenzie, DOAH Case No. 91-2285

    (Recommended Order entered July 12, 1991; Final Order entered August 14, 1991). Cf--School Board of Volusia County v. Florio, supra. It is further concluded that, pursuant to case law and contrary to the parties' assertions, the burden of proof herein is "the preponderance of the competent substantial evidence".

36. Respondent Gravelding was initially charged with and suspended for: failure to follow School Board Transportation

    Procedures in general, and Procedure (504.1)

    (6.B.) (Reporting of Accidents) in particular.

    
    

37. The conduct of non-instructional employees is measured against the same standards as instructional employees in regard to allegations of misconduct and willful neglect of duty. See, Rutan v. Pasco County School Board, 435 So.2d

    399 (Fla. 2d DCA 1983); and 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 a 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.

    
    

38. The School Board's policy with regard to (504.1)(6.B.) (Reporting of Accidents) states:

    
    

    6.B. REPORTING OF ACCIDENTS:

    
    

    Drivers of school board vehicles will be required to report all accidents, violations, citations occurring in school board vehicles, suspensions, and/or revocations of driver license. Failure to report or inaccurate reporting shall be grounds for termination of employment. Accidents in a board owned vehicle must be reported at the time of the accident

    to the transportation department and in accordance with Florida Statute 316.065: 'The driver of a vehicle involved in an accident resulting in injury to or death of any persons or property damage, shall immediately by the quickest means of communication, give notice of the accident to the local police department, if such accident occurs within a municipality; otherwise, to the office of the county sheriff or the nearest office or station

    of the Florida Highway Patrol.' (emphasis supplied).

    
    

39. Thus, the Volusia County School Board has established as policy that the failure to report or inaccurate reporting of accidents are mandatory grounds for termination of a school bus driver's employment, and that "accurate reporting" shall be composed of two parts, depending on the situation. In all situations, the school bus driver has the duty to report at the time of accident to the School Board's transportation department. In the event of injury or death or property damage, the school bus driver has the duty to report at the time of accident to the School Board's transportation department and immediately

    by the quickest means of communication give notice to the local police department.

    
    

40. Since it is clear that the accident here potentially involved injury, the issues to be resolved are whether Respondent reported it "at the time of accident" to the School Board transportation department and whether he "immediately by the quickest means of communication" gave notice to the local police department. The answer on both issues is that he did not.

    
    

41. Under the circumstances of this case, Respondent had no duty to report the 6:45 a.m. accident to anyone until he was told about it at approximately 7:00 a.m. However, at that point, he had a duty to report the accident to both the School Board Transportation Department and the Edgewater Police Department. He knew he had such a duty and he knew how to fulfill it, that is, by radioing the dispatcher. In so concluding, the undersigned rejects as not credible and as unreasonable Respondent's assertion that the October 21, 1991 incident was somehow different than the incident he had reported through the radio dispatcher the preceding school year because on the earlier occasion he was able to first personally verify that the accident had resulted in a back injury and on the second occasion he was not able to personally verify that a child had been run over.

    
    

42. It was outside ordinarily prudent behavior under the circumstances for Respondent to refuse to report the accident immediately because of some personal unresolved doubt as to whether or not the students who reported the accident to him fifteen minutes after its occurrence were telling the truth. He could easily have reported the incident and the names of the students to the New Smyrna Beach High School principal and let the principal determine the students' truth and veracity while relaying all pertinent information to the School Board transportation department and to police authorities. Such a procedure would not have even delayed his elementary and middle school bus runs. Likewise, it was reckless under the circumstances of this case for Respondent to refuse to

    follow-up on the information given him by the students for approximately two hours just because his regular supervisor was not available. He had many opportunities to report the accident to her substitute supervisor, the dispatcher, or other administrators and did not do so. Moreover, the delayed written report he prepared was inaccurate due to its obvious omissions. It was not the "quickest means of communication," and it was not provided initially to law enforcement.

    
    

43. Respondent's failure to report immediately may not have further endangered the injured student, but it had the potential of subjecting that student to further endangerment. It also clearly frustrated the School Board's legitimate interest in making an immediate investigation to protect itself from civil liability and damages.

    
    

44. The School Board has established by a preponderance of the competent, substantial evidence that just cause existed under the cited policy/rules for termination of Respondent.

    
    

45. Respondent retained no rights to be re-employed under a new annual 1992-1993 contract. However, it is noted that School Board Policy (505)VI provides that:

A person terminated as a driver may be recom- mended by the board for re-employment as a driver of a school-district vehicle after a

twenty four (24) month period subject to review by the Safe Operations Committee.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board of Volusia County enter a Final Order ratifying the termination of Respondent.

DONE and RECOMMENDED this 30th day of December, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 30th day of December, 1992.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-8269

The following constitute specific rulings, pursuant to Section 120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF

1-4. Except as unnecessary, subordinate, or cumulative, the proposals are covered in the preliminary material of the Recommended Order.

5-7. Accepted, except where unnecessary, subordinate, or cumulative.

8. Rejected as unnecessary.

9-10. Accepted, except where unnecessary, subordinate, or cumulative.

11. Substantively accepted but rephrased to more correctly reflect the record and eliminate mere argumentation.

12-14. Accepted, except where unnecessary, subordinate, or cumulative. Inaccuracies corrected.

1. Accepted, except where unnecessary, subordinate, or cumulative. Mere argumentation is also rejected.

   
   

2. Accepted, except where unnecessary, subordinate, or cumulative.

   
   

3. Substantively accepted but rephrased to more correctly reflect the record and eliminate mere argumentation.

4. Rejected as partially unproven and partially unnecessary, subordinate, or cumulative. Mere argumentation is also rejected.

   
   

5. Accepted, except where unnecessary, subordinate, or cumulative.

Respondent's PFOF

Respondent did not submit any PFOF.

COPIES FURNISHED:

Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639

Tampa, Florida 33601

Thomas J. Pilacek, Esquire Maitland Green, Suite 110 601 South Lake Destiny Road Maitland, Florida 32751

Dr Joan Kowal, Superintendent Volusia County School Board

P. O. Box 2118

Deland, Florida 32720

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: 91-008269

Orders for Case No: 91-008269