STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3254

)

LARRY JACKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by telephone conference call on November 19, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County Schools

301 4th Street Southwest Post Office Box 2942 Largo, Florida 34549-2942

For Respondent: Was not present and was not represented.

STATEMENT OF THE ISSUE

The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.

PRELIMINARY STATEMENT

By letter dated June 10, 1996, Dr. J. Howard Hinesley, Superintendent of the Pinellas County Schools, advised the Respondent herein, Larry Jackson, that Respondent had been suspended with pay effective June 5, 1996, and would be recommended to the School Board for termination of his employment because on May 8, 1996 he had disembarked a school bus with the engine running leaving students on board, to give chase to a student who had used a racial epithet towards him, all in violation of Board policy. Respondent acknowledged receipt of the letter and requested formal hearing. This hearing ensued. At the hearing, Petitioner presented the testimony of Karen Bea Clark, mother of a student who was left on the running bus; Stephanie Erin Clark, Sherry Jane Beltran, and Jennilynn Rachel Greene, all students on the bus at the time of the alleged incident; Michael T. Fleming, Director of Transportation for the Pinellas County Schools; and James

1. Barker, an administrator with the Board's Office of Professional Standards. Petitioner also introduced Petitioner's Exhibits 1 through 7.

   Respondent was not present and did not present any evidence. The Judge delayed the commencement of the hearing for ten minutes beyond the scheduled starting time to afford Respondent additional time to appear. The undersigned's Notice of Hearing, which advised of the date, time and exact location of the hearing, was mailed to the Respondent on August 14, 1996 and was not returned by the Postal Service undelivered notwithstanding several documents mailed to him by the Board's counsel subsequent to the Notice of Hearing were returned undelivered. Counsel for the Board also advised that frequent attempts to contact Respondent by telephone and mail were met with indications the prior address and phone number for Respondent were no longer valid. Respondent still had neither appeared nor had anyone appeared for him by the conclusion of the hearing, approximately one hour after commencement, and it is concluded that Respondent waived his right to attend the hearing and present matters in his own behalf.

   
   

   No transcript was provided nor were any Proposed Findings of Fact submitted by counsel for Petitioner.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver.

      
      

   2. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet.

      
      

   3. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus.

      
      

   4. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident.

      
      

   5. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger."

      
      

   6. When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed

      the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr.

      Fleming considers the proposed action in this case to be appropriate to the circumstances.

      
      

   7. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   9. The Superintendent of the Pinellas County Schools has advised the Respondent of his intention to recommend to the School Board that Respondent be terminated from employment with the Board as a bus driver because of his misconduct, as alleged, which took place on May 8, 1996. The evidence of record, uncontradicted by Respondent who did not appear at the hearing, clearly establishes the allegations and, in addition, establishes the serious nature of the misconduct.

      
      

   10. The Respondent's leaving a loaded school bus with its engine running, merely to chase after a student who called him a name, is an example of egregious misconduct and is a clear violation of the Board's policy which permits termination of employment for misconduct. Even were one to apply a progressive discipline concept to this incident, that concept recognizes the need to disregard utilization of progressive discipline where the misconduct in a particular incident is of so serious a nature as to justify deviation. Such is the case here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board.

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

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(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 December, 1996.

COPIES FURNISHED:

Kieth B. Martin, Esquire Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 34649-2942

Mr. Larry Jackson

1482 Franklin Street, Apt 7

Clearwater, Florida 34615

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools

301 Fourth Street Southwest Post Office Box 2942

Largo, Florida 34649-2942

Frank T. Brogan Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick General Counsel Department of Education The Capitol, PL-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: 96-003254

Orders for Case No: 96-003254