STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NOS. 96-2297

) 96-3146

GEORGE JAMES BOCK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on September 5, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Arthur S. Hardy, Esquire

Matthews, Hutton and Eastmoore 1777 Main Street, Fifth Floor Post Office Box 49377 Sarasota, Florida 34230

For Respondent: Charles L. Scalise, Esquire

West Russell Snuder, P.A.

355 West Venice Avenue Venice, Florida 34285

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Petitioner School Board should terminate Respondent's employment because of the alleged misconduct outlined in the letters of Termination dated April 2, 1996 and May 6, 1996.

PRELIMINARY STATEMENT

By letters dated April 2, 1996 and May 6, 1996, Thomas H. Gaul Superintendent of Schools for Sarasota County, advised the Respondent herein, George James Bock, that he intended to recommend to the School Board of Sarasota County that Respondent be terminated from employment because of alleged misconduct. The misconduct alleged included Respondent's smoking near a fuel pump at the Board's bus compound, as to the first letter, and his failure to run his bus route on time causing parents to transport their children, as to the second letter. Respondent demanded formal hearing as to both alleged incidents, and the cases were referred to the Division of Administrative Hearings where they were consolidated for hearing.

At the hearing, the Board presented the testimony of Margaret L. Sams, a bus route coordinator for the Board; Respondent, George J. Bock; Wendell M.

Prior, lead mechanic for the Board; and Francis E. Girard, the Board's business manager of transportation. Petitioner also introduced Petitioner's Exhibits 1 through 14 and 16 through 20. Petitioner's Exhibit 16 for Identification was offered but not admitted.

Respondent testified in his own behalf and presented the testimony of Marcia L. Strickland, a pre-school teacher's aide at Englewood Elementary School; and James E. Miles, Joann M. Wass, and Mark E. Wass, current or former school bus drivers for the Petitioner. Respondent also introduced Respondent's Exhibits A through F. The undersigned also officially recognized the Revised Collective Bargaining Unit Collective Bargaining Agreement entered into between the Board and the Sarasota Classified/Teachers Association which, the parties agreed, was the agreement in effect at the time of the alleged incidents herein and, therefore, pertinent to the issues herein,

No transcript of the proceedings was furnished. Subsequent to the hearing, counsel for both parties submitted Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, School Board of Sarasota County, (Board), operated a system of school busses to transport students to and from the public schools operated by and within the county. The Respondent, George James Bock, was employed by the Petitioner as a school bus driver and was assigned to drive bus number 9101.

   
   

2. Sometime in January 1996, but prior to January 10, while in the process of picking up children at Englewood Elementary School for the purpose of transporting them to their homes at the end of the school day, Respondent had trouble getting his bus started when it was parked near the school and the children were aboard. He was, at the time, observed by Marcia Strickland, a pre-school teacher's aide, whose job it was to see the children onto the buses in the afternoon after school. Ms. Strickland saw Respondent get up out of his driver's seat, and she got onto the bus to see if he needed any help. She saw Respondent go to the back of the bus and do something she could not see and then return to his seat. When he thereafter tried to start the bus it started and he drove off. Respondent and Ms. Strickland did not have a conversation during this period which lasted about a minute, nor did she see him attempt to use his radio.

   
   

3. On the morning of January 12, 1996, Respondent had the usual responsibility to pick up students attending Venice Middle School and transport them to school. When they had been delivered without incident, he had some time to spare before he was to pick up the elementary school children to be transported to their school, Englewood Elementary. In the interim between runs, it was his practice to drive the empty bus to the old K-Mart parking lot near Venice where he would park his bus in the company of other school bus drivers who were also between runs, and he did so on this particular day. The middle school run went off without difficulty, however, during the run a buzzer went off in the bus several times. This was not an unusual occasion as it frequently happens when the bus passes over a bump in the road at US highway 41 as he deadheads from the first to the second run.

   
   

4. The weather was inclement on the day in question and appears to have been quite wet. Respondent did not leave his bus while it was in the parking lot nor did he speak with any of the other drivers. When it became time for

   Respondent to leave the K-Mart lot for his second run, he was unable to get the bus started. He attempted to do so for several minutes but the bus would not start. He checked all doors and exits of the bus to insure none of them were insecure but all was well. He also checked to insure the bus was in neutral and it was. Notwithstanding all he tried, Respondent was unable to get the bus started. Finally, he discovered a problem with a lock on the back door which he tried to fix unsuccessfully, and he attempted to call in to his dispatcher by radio to advise that because of his problem he would be late on his run, but his efforts to raise central or other drivers were also unsuccessful.

   
   

5. Respondent ultimately got the bus started, but by that time he was late and only one child was still waiting for pick-up. He subsequently determined that some of the parents of the students who ordinarily rode on his bus made the pick-up and took the children to school when it appeared he would be late.

   
   

6. Each bus driver is furnished with a pre-trip log book which he or she is required to fill out regarding each trip. The book for Respondent's bus on January 12, 1996, and for every school day in January 1996 prior to that date reflects every item marked OK for both the morning and afternoon runs, and no item is identified as having been a problem. The page is signed by the Respondent. Respondent indicates he didn't make any notations in the log book about the door buzzer going off because there were no problems at 6:45 AM when he filled out the log. The problem with the buzzer normally did not prevent him from starting the bus except for one time approximately two weeks previously. This must have been the incident referred to by Ms. Strickland.

   
   

7. Though Respondent did not make any entries in the bus log regarding this problem he did fill out an incident report regarding it and a driver's repair request regarding the problem. The incident report bears the improper date of January 10, 1996, but this was explained by Respondent as being merely his error when he filled out the report on January 12. This explanation is accepted. The bus was checked out by Wendell Prior, a lead mechanic with the School Board's Taylor Ranch compound from which Respondent operates. Mr. Prior also conducts monthly safety inspections of the busses assigned to his shop and corrects problems reported to him. He is certified as an ASE certified mechanic and has attended several schools to keep his skills current.

   
   

8. Mr. Prior, along with an assistant mechanic, thoroughly checked out the Respondent's report regarding the buzzer on bus 9101 which reportedly caused the bus not to start. He also checked the radio which Respondent had reported as faulty. Neither Prior or the other mechanic was able to duplicate Respondent's problem or find any defect which would prevent the bus from starting. They saw no foreign material and found no evidence of attempted repairs. Mr. Prior also checked out the bus' battery system and found it to be working properly. As a result of all his efforts to find something wrong or recreate the problem allegedly experienced by Respondent, Mr. Prior could find no defects and he has made no repairs to the bus buzzer system since that time. Prior also tried out the radio, which is one of the more powerful bus radios used in the system, and though he was unable to reach central dispatch, he was able to reach other busses clearly. He could find no problem with the radio.

   
   

9. Though it may seem improbable, there is no major inconsistency between the testimony of Mr. Bock and that of Mr. Prior. Other bus drivers testifying for the Respondent indicated that the area where the buses congregate during the hiatus between runs is a difficult area for radio reception. These drivers have been able to reach other busses in the area but not the central dispatch radio from that site. In addition, Mr. Wass, formerly a school bus driver and an

   individual with extensive experience in engineering and automotive electrical systems, has also experienced problems with the back door of the school bus he drove which prevented the bus from starting. He determined that the back door cut-off latch frequently moves while the bus is in motion, and when the bus is subsequently turned off, it cannot be restarted with the latch in that position. He has also experienced intermittent circuitry problems with his bus which was aggravated by wet weather.

   
   

10. Taken together, the evidence indicates with regard to this allegation that in fact Respondent was late for the second run to Englewood Elementary School because of mechanical or electrical problems with his bus which were intermittent and beyond his control. His failure to contact central dispatch so that alternative arrangements could be made to transport his students was occasioned by his failure to raise central by radio due to a blind spot for transmission at the location where he was parked and unable to start the bus.

    To be sure, he probably could have relayed a notification to central through another bus driver, which ability to do so was indicated by the other drivers. However, Respondent claims he tried and was unable even to reach another driver. Respondent was charged with a failure to make the run on time, not a failure to call in to central. Petitioner's allegations that interim stops at the shopping center were not authorized is irrelevant to the issue herein. In any case, the evidence tends to indicate that such practice was wide-spread among the drivers and was accepted by the system managers.

    
    

11. As a result of the Respondent's failure to pick up the elementary school children on time on January 12, 1996, on January 15, 1996, the parent of one of the children on the run in issue wrote a letter to Mr. Girard, the supervisor of all official transportation for the school system, complaining of the Respondent's failure to make the pick up on time. This mother, who provided transport for several of the stranded children that morning, claimed to have found the bus parked in the K-Mart parking lot, and when she sounded her horn, Respondent rose up from one of the middle seats on the bus and went to the driver's seat. The following day, the principal at Englewood Elementary School wrote to Mr. Girard complaining of the failed pick-up on January 12, and raised the question of whether Respondent had been sleeping, citing other instances of Respondent's inappropriate performance of his duties, none of which are relevant to the issues herein.

    
    

12. Because of these complaints, on March 18, 1996, Mr. Girard forwarded a memorandum to Gerald Padfield, the Board's Supervisor of Personnel, informing him that a decision had been reached to proceed with disciplinary action consistent with the terms of the union contract. In his letter, Mr. Girard cites several prior actions taken with regard to the Respondent and which includes two previous letters of instruction, a verbal and a written reprimand, and a three-day suspension. Respondent contends that the two letters of instruction were not disciplinary action, but were imposed to correct improper performance on his part. The three day suspension was brought to arbitration upon Respondent's filing of a grievance. While grounds for discipline were found to exist, the three-day suspension was reduced to a one day suspension.

    It should also be noted that Mr. Girard's letter contains several inaccuracies as to dates of incidents and/or corrective action. For the most part, however, the document demonstrates that the Board has followed a course of progressive discipline in its dealings with the Respondent.

    
    

13. Respondent's Exhibit C is a document which outlines in detail the disciplinary history of the Respondent and which includes the formal actions previously cited. In addition, however, there is evidence of other incidents

    involving Respondent concerning which incidents complaints were received by the Board and for which non-disciplinary action was taken by administration personnel. These instances of uncharged activity by the Respondent have no bearing on the instant determination of whether Respondent committed the offenses alleged in the cases in issue but were admitted solely for the purpose of establishing that the Board had followed a policy of progressive discipline in its dealings with the Respondent. Mr. Bock is a member of the classified bargaining unit represented by the local teacher's union which has entered into a collective bargaining agreement with the Board. Article XXII of that agreement provides for the use of progressive discipline except in emergency or flagrant violation situations. Pertinent hereto is the agreement definition of progressive discipline which calls for termination as the next step after suspension with or without pay.

    
    

14. On March 5, 1996, Marge Sams, a safety facilitator with the Board's transportation department, located at the Taylor Ranch bus compound, while in a conversation with another bus driver, observed Respondent smoking a cigarette while he was standing in front of a school bus which was parked by a fuel pump. She could tell Respondent was smoking by the movement of his hand to his mouth and a puff of white which appeared immediately thereafter. She started out the door to tell him not to smoke there when he threw the cigarette to the ground and crushed it out with his foot. He came toward her, and when she started to ask him not to smoke near the fuel pumps, he barely acknowledged her and passed by her out the other door to where he met two other people.

    
    

15. A permitted smoking area is located just outside the bus office building at which a picnic table and benches are located. A butt can is located on the table for the use of smokers. While this smoking area is in the general vicinity of the fueling pumps, it is not located adjacent to the pumps and does not create a safety hazard as would smoking at the pumps. Located at the pump service island where Respondent was seen smoking is a reasonably large, easily readable blue and white sign which clearly indicates that no smoking is permitted at the pump during fueling operations, by order of the state fire marshal. These signs were in place on March 5, 1996. The pump just below and to the side of the aforementioned sign bears the indication that it contains diesel fuel. It should also be noted, however, that next to the building, just outside the office, at some point in time, was located an open flame space heater.

    
    

16. Ms. Sams' observation of the Respondent on March 5, 1996 was, by her own admission, very brief and she was not paying close attention to him. It was the puff of white smoke which caught her attention and caused her to go outside right away. Ms. Sams does not know what Respondent was doing at the pump at the time. His job during that period was to wash busses and he might have been doing that. However, she is very sure that at the time she observed the respondent smoking at the pump island, there were other busses fueling there.

    
    

17. In her capacity of safety facilitator at the Taylor Ranch compound Ms. Sams is responsible for setting policy, and though she is not sure, she believes the policy against smoking is written down. It is a matter of judgement and compliance with the general orders of the state fire marshal. Though she was unwilling to define what is a safe distance from a pump to smoke, in this case she observed the respondent smoking in an area immediately contiguous to where two other busses were being fueled, well within 15 to 20 feet of them, and she is satisfied that is not safe. Mr. Bock does not deny smoking at the time and place alleged in the charging letter, but does deny ever smoking during fueling operations.

18. Based on her observation of Respondent on March 5, 1996, Ms. Sams drafted a written memorandum to Mr. Girard, the Board's bus business manager, reporting what she had observed. While she admits that memorandum does not reflect fuel was being dispensed at the time and agrees such a comment should have been included, she is sure fuel was being dispensed. It is so found. It is also found that many drivers and compound personnel smoke at the picnic table outside the bus office, even while fuel is being dispensed at the pump and neither Respondent nor Mr. Prior has ever heard anyone say anything about that.

    
    

19. When Mr. Girard received the report of Respondent's late pick-up on January 12, 1996, he immediately caused the allegation to be looked into. Based on the report that Respondent had had bus trouble, Mr. Girard, the same day as the incident, also had that looked into, and when nothing wrong could be found with the bus, he released it for the afternoon run.

    
    

20. According to Mr. Girard, when a bus driver has problems with his run, he is supposed to radio in or call by phone to bus central so that children are not left standing at a bus stop. He admits that from time to time communications problems exist in that certain areas of the county are dead areas for radio transmissions. In addition, some of the buses have smaller radios than others and do not have adequate power to reach central from all areas serviced. Respondent's bus, however, had one of the bigger radios which should have been able to reach central. Other evidence of record, however, has confirmed the existence of dead areas, and, conceivably, Respondent was in such an area when he was unable to get the bus started. However, he could have called another bus and requested his message be relayed, or he could have used a phone line to call in. He did neither even though the Board's policy on calling in was discussed with Respondent prior to January 12, 1996 and at the time he was advised he should lay over on school board property. This information is contained in a written memorandum dated May 3, 1993 from the Board's director of transportation to all bus drivers. However, neither the failure to call in nor the layover at an unauthorized location was charged.

    
    

21. As a result of the smoking incident, when added to Respondent's prior record, on January 30, 1996, Mr. Girard advised Respondent in writing that a meeting was scheduled to discuss this matter on January 31, 1996. However, the meeting was rescheduled for February 7, 1996 at Respondent's request. When the meeting was held, Girard and Respondent discussed what disciplinary action would be taken consistent with the progressive discipline policy called for in the collective bargaining agreement.

    
    

22. The Respondent's disciplinary file with the Board reflects a Memorandum of Instruction administered on January 22, 1991 and a Letter of Instructions issued on December 12, 1991. These documents clearly indicate on their face that they are not disciplinary, however. Nonetheless, Respondent was also administered a verbal reprimand on February 3, 1992, followed by a written reprimand administered on April 7, 1992. In addition, Respondent was administered a three day suspension in the latter part of 1995 for smoking on his bus. Respondent grieved this action and the matter went to arbitration where the arbitrator's Decision and Award dated August 27, 1996 upheld the imposition of a suspension but reduced the term from three days to one day. Because of the Respondent's disciplinary record, Mr. Girard recommended termination of Respondent's employment to the superintendent who accepted that recommendation.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

24. In the two charging letters which form the basis for this action, the Board cites Respondent's failure to make his pick-up run for Englewood Elementary School on January 12, 1996 on time, and his improperly smoking next to a fuel pump while fuel was being dispensed on March 5, 1996.

    
    

25. In its evidence presented and argument regarding the pick-up incident, Petitioner refers to the fact that Respondent did not call in when he found his bus would not start, and his parking during the layover in an unauthorized parking place. However, though each may be a violation of either a Board employee rule or policy, neither was charged in the charging document. The only action by Respondent relating to discipline is his failure to make the run on time.

    
    

26. In his defense to the allegation Respondent cited an inability to get the bus started after the layover as the basis for his not making the pickup on time. Petitioner had the bus immediately checked over thoroughly by a qualified mechanic when the Respondent's report of malfunction was received and relies heavily on the fact that its mechanic could find nothing wrong with the bus that would have cause the condition Respondent reported. However, a former driver, who has good credentials in the subject matter, indicated he had also had the identical problem experienced by Respondent and gave a plausible explanation for it. This explanation, the voluntary movement of a latch due to the motion of the bus, was not disproved by the Board's mechanic.

    
    

27. In addition, several drivers indicated, and the Board's witness concurred, that there are several "dead" areas within the geographical location of the bus routes in which it is impossible to raise central by radio. In that case, the Board urges, a driver should radio a fellow driver for relay of the message to central so that school children will not be left waiting at the bus stop. No doubt that is true and an excellent idea. In addition, it may be required. However, that misconduct was not charged, and the commission of that offense does not justify finding Respondent guilty of the offense charged, that is, improperly or unjustifiably failing to pick up children on his run on time, which has not been proven.

    
    

28. With regard to the smoking incident, however, the story is quite different. In this case the evidence supports a finding that Respondent was smoking at a pump while fueling operations were going on at the island. To be sure, Ms. Sams' recollection of the sequence of events was not clear, and it is also true that she did not include in her memo to Mr. Girard that she had seen fueling going on at the time and place she saw Respondent smoking. However, notwithstanding Respondent's counsel's characterization of her testimony as conflicting and contradictory, she is not at all unsure of what she saw, and her testimony, along with the collateral evidence on the issue, clearly indicates that though Respondent was not fueling the bus on which he was working while he was smoking, there were other buses being fueled at the same and adjacent islands. This constitutes the offense charged.

    
    

29. The collective bargaining agreement between the Board and the union provides for progressive discipline. Respondent contends that because the letter describing prior discipline which was introduced into evidence at the

    hearing was inaccurate it should not be used to justify termination, which is the most severe form of punishment allowed. However, though the letter was somewhat inaccurate and imprecise as to specific details, the basics were correct and described specific prior incidents of misconduct for which discipline was administered to Respondent by the Board. Further, the fact that a three day suspension was reduced to a one day suspension when Respondent grieved the action did not indicate a lack of offense and discipline. To the contrary, the arbitrator's decision upheld the basis for action but merely diminished the quantum of the punishment imposed.

    
    

30. Respondent's counsel contends that the insufficiency of the evidence to finding Respondent guilty of either offense; the Board's failure to enforce its rules against smoking and against parking in unauthorized areas during layovers; and the lack or proximity of Respondent's prior misconduct are bases for not imposing discipline against him. As to the January 12, 1996 offense involving the unjustified failure to pick up the children on time, it has been found and concluded that the evidence of that offense is insufficient. As to the smoking offense, however, it has been found and concluded that the action took place and constitutes an offense. Clearly Respondent's argument that the prior offenses are not in sufficiently close proximity to the instant offense in issue is without merit. That no prior disciplinary action has been taken for smoking in the fueling area, even if shown, is not relevant to the instant situation. Consequently, termination is legally and factually appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Sarasota County reject the recommendation of the Superintendent regarding the alleged incident on January 12, 1996 and dismiss the charge, but accept the Superintendent's recommendation regarding the allegation of inappropriate smoking and enter an order terminating the employment of George James Bock with the Board.

DONE and ENTERED this 2nd day of October, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996.

COPIES FURNISHED:

Arthur S. Hardy, Esquire Matthews, Hutton and Eastmoore Post Office Box 49377 Sarasota, Florida 34230

Charles L. Scalise, Esquire West Russell Snyder, P.A.

355 West Venice Avenue Venice, Florida 34285

Thomas H. Gaul, Superintendent Sarasota County School Board 1960 Landings Boulevard

Sarasota, Florida 34231-3331

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick General Counsel Department of Educatin

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002297

Orders for Case No: 96-002297