STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

KASHA BRUNSON,

Respondent.

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) Case No. 11-1261

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LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

MARIA COLINA,

Respondent.

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) Case No. 11-1262

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases on May 19, 2011, in Fort Myers, Florida, before Susan B. Harrell, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUES

The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.

PRELIMINARY STATEMENT

On February 9, 2011, Lawrence D. Tihen, as superintendent for the Lee County School District (School District), issued a Petition for Termination of Employment, recommending to Petitioner, Lee County School Board (School Board), that the employment of Respondent, Kasha Brunson (Ms. Brunson), be terminated. The Petition for Termination of Employment alleged that Ms. Brunson violated School Board Policies 5.02 and 5.29 and that Ms. Brunson failed to adequately supervise students on a bus, which is misconduct in office and just cause for termination. Ms. Brunson requested an administrative hearing.

On February 9, 2011, Lawrence D. Tihen, as superintendent for the School District, issued a Petition for Termination of Employment, recommending to the School Board that the employment of Respondent, Maria Colina (Ms. Colina), be terminated. The Petition for Termination of Employment alleged that Ms. Colina failed to control the students on her bus pursuant to section 1006.10(3), Florida Statutes (2010);1/ violated Florida Administrative Code Rule "6A-3.017(2)3.f., h, i.m., and y.[1]";

and violated School Board Policies 5.02 and 5.29. Ms. Colina requested an administrative hearing.

The School Board suspended Respondents' employment without pay on March 8, 2011. Both cases were forwarded to the Division of Administrative Hearings on March 11, 2011, for assignment to an Administrative Law Judge to conduct the final hearing. The cases were consolidated by Order dated March 21, 2011. The final hearing was scheduled for April 26, 2011. The School Board filed a Motion for Continuance of Hearing on April 11, 2011. The motion was granted, and the final hearing was rescheduled for May 19, 2011.

At the final hearing, the School Board called the following witnesses: Christine Christensen, Shannan Pugh, Catherine Reese, and Robert Morgan. Petitioner's Exhibits 1, 2, 3, and 6 through 10 were admitted in evidence. Petitioner's Exhibits 4 and 5 were not admitted in evidence. Ms. Brunson testified in her own behalf, and Ms. Colina testified in her own behalf.

Respondents' Exhibits 1 through 10 were admitted in evidence. The Transcript of the final hearing was filed on June 8,

2011. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On June 16, 2011, the School Board filed Petitioner's Unopposed Motion for Extension of Time to file Proposed Recommended Orders. The motion was granted, and the time for filing

proposed recommended orders was extended to July 15, 2011. The parties timely filed their proposed recommended orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations.

2. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations.

3. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor

   
   

   job performance, which could result in suspension without pay or termination of employment, could be investigated, and

   a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides:

   [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record.

   
   

4. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats.

5. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level.

6. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they

   
   

   were to keep the students separated, and they both assumed the students had been involved in an argument.

7. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing.

   Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open.

8. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson.

   T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina.

9. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor

   Ms. Colina saw T.T. sit next to C.E.

   
   

10. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work

    
    

    site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up."

11. In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on

    December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students.

12. Bus drivers are given 15 minutes each morning and

    
    

    15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus.

13. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the

    
    

    students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students.

    Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated.

14. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials

    
    

    changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store.

15. From late October 2010 to December 7, 2010,

    
    

    Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse.

    Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being

    separated.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

17. The School Board has the burden to establish the allegations in the petitions for termination of employment by a

    
    

    preponderance of the evidence. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996).

18. Ms. Brunson, a bus attendant, and Ms. Colina, a bus driver, are educational support employees as defined by section 1012.40(1)(a), Florida Statutes.

19. The School Board alleges that Ms. Brunson failed to adequately supervise the students on the bus, and such failure constitutes misconduct in office pursuant to

    section 1012.33(6)(b) as defined by Florida Administrative Code Rule 6B-4.009(3). Section 1012.33(6)(b) and rule 6B-4.009(3) relate to instructional staff and not educational support employees such as Ms. Brunson.

20. Section 1012.40 provides that educational support employees may be terminated for reasons stated in the collective bargaining agreement. The SPLAC agreement provides that educational support employees can be dismissed for just cause. Just cause is not specifically defined in the SPLAC agreement, but a reading of Provision 7.10 of the SPLAC agreement allows for discipline for misconduct and poor job performance.

21. Just cause for discipline is a reason which is rationally and logically related to an employee's conduct in the performance of the employee's job duties and "imputes removal or termination for misconduct, some violation of the law, or delict

    
    

    of duty on the part of the officer or employee affected." State ex re. Hathaway v. Smith, 35 So. 2d 650, 651 (Fla. 1948).

22. The School Board has established that Ms. Brunson failed to adequately supervise C.E. and T.T. on December 7, 2010, and, as a result, T.T. went to the front of the bus and sat with C.E. in her seat. The evidence did not establish whether there was sexual contact between the two students. The evidence did establish that when T.T. stood up and C.E.'s head popped up that there was reason to suspect that inappropriate activity had occurred. The excuse of doing paperwork is not sufficient to relieve Ms. Brunson of her responsibility to supervise C.E. and T.T. and to make sure that the students remained separated.

23. The School Board has established that Ms. Brunson's failure to adequately supervise the students is misconduct and, as such, constitutes just cause for discipline.

24. The School Board alleges that Ms. Colina violated section 1006.10(3), Florida Statutes, which provides that a school bus driver "shall control students during the time students are on the school bus." The School Board alleges that Ms. Colina violated rule 6A-3.0171 and, specifically, that she violated the following provisions of rule "6A-3.017(2)(e)3.f, h,

    i.m. and y.[1]"; however, it is clear that the citation to these provisions is incorrect. The Petition for Termination of

    
    

    Employment describes the provisions of rule 6A-3.0171, which were alleged to be violated as follows:

    To study and observe all laws and rules of the State Board and the school relating to the service of transportation; to ascertain and ensure that transported students observe all rules prescribed by law and by the state and local board; to maintain order and discipline, under the direction of the school principal, on the part of every passenger; to require all passengers remain seated and to keep aisles and exits clear; and to report immediately to the director or supervisor of transportation, school principal or other designated officials misconduct on the part of any student while on the bus or under the driver's immediate supervision.

    
    

    It is clear that the Petition for Termination of Employment is referring to rule 6A-3.0171(2)(g)3.f., h., i., m., and y.(I). Because the responsibilities of a school bus driver, which were allegedly violated, were described by using the language contained in the rule, there is no prejudice to Ms. Colina that the wrong rule was cited. The Petition for Termination of Employment adequately put Ms. Colina on notice of the alleged violations. Although the rule requires that the School District adopt statements of policy reflecting the responsibilities of a bus driver as set forth in rule 6A-3.0171(2)(g)3., it is also clear that those provisions of rule 6A-3.0171 describe, at a minimum, the responsibilities of a bus driver.

    
    

25. The School Board has established that Ms. Colina failed to control C.E. and T.T. while they were on the bus on the morning of December 7, 2010, which failure constitutes a violation of section 1006.10(3). The School Board established that Ms. Colina failed to maintain order on the bus and that she failed to keep the students in their seats. These violations constitute just cause for discipline. The School Board did not establish that Ms. Colina failed to notify her supervisor of misconduct. The evidence showed that Ms. Brunson immediately notified the supervisor, Mr. Maybin. Thus, there was no reason for Ms. Colina to also call Mr. Maybin.

26. The School Board also alleges that Ms. Brunson and Ms. Colina violated School Board Policies 5.02 and 5.29. No evidence was presented as to what these policies provided, and

    there was no request that official recognition be taken of these policies. Therefore, it cannot be determined whether Respondents violated School Board Policies 5.02 and 5.29.

27. Respondents argue that they should not be disciplined for failing to supervise C.E. and T.E. because the paraprofessionals, who were supervising C.E. and T.E. at the grocery store when the inappropriate contact occurred in October 2010, were not disciplined. The incidents are not analogous. The October incident involved two paraprofessionals who were supervising seven students who were located in various

    
    

    areas of a grocery store and who were moving about the grocery store. In the instant case, there were two adults supervising two students who were on a small school bus. There is no excuse for lack of supervision in the instant case.

28. Both Respondents' long employment with the School Board and their excellent performance evaluations should be taken into consideration in disciplining them. Additionally, the evidence did not establish that any sexual activity took place between C.E. and T.T. while on the bus on December 7, 2010. The appropriate penalty should be a suspension without pay from March 8, 2011, to January 1, 2012.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and

Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012.

DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902

Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966

Lois Tepper, Interim General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Gerard Robinson, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Lawrence D. Tihen

Interim Superintendent of Schools Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

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: 11-001261TTS

Orders for Case No: 11-001261TTS