STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Jack Taylor, as Acting ) Superintendent of Lee County ) School District, )

)

Petitioner, )

)

vs. ) Case No. 97-1386

)

Harrison Thomas, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing on April 29, 1997, in Tallahassee, Florida. The parties, attorneys for the parties, witnesses, and court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: John M. Hament

Kevin J. Hubbart

Kunkel Miller and Hament Suite 970, 1800 Second Street

Sarasota, Florida 34236

For Respondent: Harry A. Blair

Harry A. Blair, P.A. 2138-40 Hoople Street

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue is whether Petitioner should terminate Respondent's employment with the Lee County School District for just cause.

PRELIMINARY STATEMENT

By Petition for Suspension Without Pay and Benefits Pending Termination of Employment dated January 17, 1997, Petitioner alleged that Respondent, whom Petitioner employed as a bus driver, carried a loaded firearm on a school bus owned by Petitioner.

Respondent disputed the material facts and demanded a formal hearing.

At the hearing, Petitioner called five witnesses and offered into evidence 19 exhibits. Respondent called one witness and offered into evidence eight exhibits. All exhibits were admitted except Petitioner Exhibits 5, 11, 12,

and 17.

The court reporter filed the transcript on May 19, 1997.

FINDINGS OF FACT

1. Petitioner is the acting superintendent of schools for the Lee County School District. References to "Petitioner" shall include Petitioner's predecessors and the Lee County School Board.

2. Petitioner originally hired Respondent as a school bus driver in September 1974. Respondent worked in this

   capacity for Petitioner for the ensuing 23 years, except for the 1988-89 school year. During the time in question, Respondent worked under an annual contract ending June 30, 1997.

3. During the one-year period ending June 30, 1997, Petitioner entered into a contract with Child Care of Southwest Florida, Inc. (Child Care) for the use of school property, including school buses. The purpose of the contract is to establish a program under which Child Care transports and supervises schoolchildren in after-school and summertime daycare programs.

4. Under the contract, Petitioner provides Respondent with school buses and bus drivers. The contract prohibits the operation of the buses by anyone other than drivers "assigned by [Petitioner]." The contract provides that Petitioner shall charge Child Care for the actual costs of operating the buses, the "drivers' hourly salary," and an additional mileage fee. The contract imposes on Child Care the responsibility of carrying motor vehicle liability insurance for Child Care and Petitioner. The contract requires that Child Care "observe all rules and regulations promulgated by the School Board for its operation of school buses."

5. Petitioner's rules prohibit bus drivers from carrying firearms while on Petitioner's property. The employment

   contract between the parties also requires Respondent to abide by all state and local laws and rules.

6. Petitioner assigned Respondent as one of the bus drivers under the Child Care contract for the Christmas break in December 1996. On the morning of December 30, 1996, Respondent carried a loaded .22-caliber pistol onto one of Petitioner's school buses. The pistol was in Respondent's jacket, which he placed beside the driver's seat. Respondent then drove his normal route, picking up children and transporting them to Petitioner's public school that, under the contract, Child Care was operating while school was not in session.

7. After finishing his morning route, Respondent left the bus at the public school with the loaded pistol still inside the jacket beside the driver's seat. Late in the afternoon of the same day, Respondent reboarded the bus, allowed the schoolchildren to reenter the bus, and drove his normal route. The loaded pistol remained in the jacket on the bus throughout the afternoon route.

8. Although not charged with the personal use of Petitioner's property, Respondent did not return the school bus after he completed his afternoon route. Instead, he transported his own children to the residence of his estranged wife where Respondent threatened the woman with the pistol. After threatening the woman, Respondent drove the school bus,

   while still armed with the loaded pistol, to Petitioner's bus lot, where Respondent parked the bus and was apprehended by police, who found the loaded pistol beside the driver's seat, but no longer in a jacket.

9. Respondent knew throughout the day of December 30, 1996, that he was in possession of a loaded firearm while operating Petitioner's school bus.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

11. Petitioner has the burden of proof. The parties agree that the issue is whether Petitioner has just cause to terminate Respondent. They disagree as to the standard of proof. The standard is a preponderance of the evidence, but the findings would be no different if the standard were clear and convincing evidence.

12. Section 790.115(2)(a) and Rule 6A-3.017(2)(e)(3)c prohibit the carrying of firearms on school buses or other school board property.

1. Respondent violated the law by carrying a loaded firearm on the school bus and onto the school bus lot. The evidence demonstrates that Respondent was aware at all times that he had the weapon on the bus. Even Respondent cannot

   seriously contest that he was aware of the presence of the weapon following the altercation with his estranged wife.

2. Respondent's main defense is that Respondent was not in the employment of Petitioner on December 30, 1996. Judging from the contract between Petitioner and Child Care, Petitioner paid Respondent because Petitioner charged Child Care for Respondent's "hourly salary." In any event, Petitioner assigned Respondent to drive the bus under the Child Care contract, and Respondent remained under the normal rules governing Petitioner's bus drivers.

3. Carrying a loaded firearm on a school bus is a serious offense. Respondent has a record of discipline for the personal use of school buses. Petitioner has just cause to terminate Respondent's employment contract.

RECOMMENDATION

It is

RECOMMENDED that the Lee County School Board enter a final order terminating the employment contract of Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1997.

ROBERT E. MEALE

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 24th day of June, 1997.

COPIES FURNISHED:

John M. Hament Kevin J. Hubbart

Kunkel Miller and Hament

1800 Second Street, Suite 970

Sarasota, Florida 34236

Harry A. Blair

Harry A. Blair, P.A. 2138-40 Hoople Street

Fort Myers, Florida 33901

Jack Taylor, Acting Superintendent Lee County Public Schools

2055 Central Avenue

Fort Myers, Florida 33901-3988

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001386

Orders for Case No: 97-001386