vs.
Case No. 18-1212
Respondent.
A final hearing was held in this case before Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings by video teleconference on May 8, 2018, in Tallahassee and Miami, Florida.
For Petitioner: Kim M. Lucas, Esquire
The issue in this proceeding is whether Petitioner has just cause to terminate Respondent's employment for an altercation he was involved in that occurred on his bus.
Miami-Dade County School Board (Petitioner or School Board) employed Livingston Wint (Respondent or Wint) as a school bus driver. In October 2017, Respondent engaged in a physical altercation with a middle school student on his bus, a portion of which was videotaped by other students. An investigation was conducted by the School Board and multiple witnesses were interviewed.
On February 20, 2018, Respondent was notified that the superintendent of schools would be recommending to the School Board to suspend Respondent without pay and to initiate dismissal proceedings against him.
On February 21, 2018, Petitioner took action to suspend Respondent without pay and initiate dismissal proceedings against him for just cause, including but not limited to, violations of School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; 4213, Student Supervision and Welfare; and 8600, Transportation, in accordance with sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida Statutes (2017).
Taking exception to this proposed course of action, Respondent requested an administrative hearing regarding his dismissal from employment. The final hearing was held before the undersigned on May 8, 2018.
Petitioner presented the testimony of Respondent and Susan Detmold, district director for Transportation Operation.
Petitioner's Exhibits 1 through 6, 15, and 16 were admitted into evidence. Petitioner provided a video of portions of the altercation on the bus. No students from the bus testified, nor did the male student who was involved in the altercation.
Petitioner relied instead on the video clips to establish what occurred during the incident.
Respondent called no witnesses, but testified on his own behalf. Respondent's Exhibits 1 through 3 were admitted into evidence.
The Transcript was filed with the Division of Administrative Hearings on July 9, 2018. Both parties' proposed recommended orders were timely filed and considered by the undersigned in the preparation of this Recommended Order.
References to the Florida Statutes are to the 2017 version, unless otherwise stated.
Based on the evidence credited by the undersigned at the hearing, the undersigned makes the following findings of material and relevant fact:
Wint has been employed by the School Board as a school bus driver for approximately 15 years.
There was no evidence presented that Wint had been disciplined for any prior instances of misconduct as a bus driver.
Wint is covered as an employee under the Collective Bargaining Agreement of the American Federation of State, County, and Municipal Employees, Local 1184 (CBA), which provides that rights thus reserved exclusively to the School Board and the Superintendent . . . include . . . separation, suspension, dismissal and termination of employees for just cause. Pet.
Ex. 1, § 3.
School Board Policies 4210, 4210.01, 4213, and 8600 were entered as exhibits and apply to Wint's employment.1/
Pet. Exs. 2–5. The School Board issued a Handbook for School Bus Drivers and Bus Aides (Handbook) for the 2017-2018 school year, which applies to Respondent's employment. The Handbook was admitted into evidence.2/ Pet. Ex. 6.
School Bus Incident on October 10, 2017
To summarize, on October 10, 2017, Wint was transporting a large group of middle school students on his school bus. Due to a disruption by one of the students, Wint felt it was necessary to pull the bus over.
Wint stopped the bus and went to the back to confront a 13-year-old, 8th-grade male student who had intentionally and unnecessarily opened the bus's emergency window, setting off the
bus alarm.3/ A video of segments of the confrontation was recorded by students and entered into evidence. Pet. Exs. 15 and 16.
Petitioner's Exhibit 16 is video coverage of the first part of the physical altercation between Wint and the male student.
Petitioner's Exhibit 15 is video coverage of the second part of the physical altercation, after both had moved back down the bus aisle to return to their respective seats on the bus.4/
With respect to the details, the incident unfolded as follows: while the bus was in motion, the male student left his assigned seat without permission, went to the back of the bus, and opened the emergency exit window, causing the bus's audible alarm to sound.5/
Wint was required to immediately stop the bus to address the emergency alarm going off. Instead of directly calling dispatch as stated in the Handbook, Wint went to the back of the bus to confront the student, order him back to his assigned seat, assess the situation, and determine the best course of action. Pet. Exs. 15 and 16; Pet. Ex. 6, § 10.06(c).
Wint went to the back of the bus and confronted the male student. The altercation started when the male student rose up slightly out of the bus seat and punched Wint in the stomach several times. This evidence was uncontradicted. No other
testimony or documents were offered to rebut this evidence. (These initial moments of the confrontation are not on the videos.)
The first part of the cellphone video is shot from an elevated angle from the rear bus seat and starts by showing the two locked up, struggling in the back of the bus. Wint has his hands on the male student pulling him up forcefully and attempting to push the male student back up the aisleway to the front of the bus where his seat was located, and away from the other students.
The male student pulled free from Wint's grasp and started up the aisleway. However, he turned around immediately and tried to shove Wint. Another male student interceded and restrained the male student by temporarily putting him in a headlock. When this occurred, Wint held back in the aisleway near the rear of the bus, watching and collecting himself.
After the initial confrontation in the back of the bus, the second cellphone video picks up the action from a different angle (shooting from the middle of the bus towards the back). Several other students intervened to keep Wint and the male student separated.
The male student tried to start up the altercation again and attempted to break through several students to get back
at Wint. Wint is standing cornered in the back of the bus with his back to the emergency exit.
While all this is going on, there is general pandemonium inside the bus with the other 20 to 25 students watching, yelling, or jeering at the scene. Notably, several of the other students appear frightened or alarmed and are very close to the altercation as it unfolds.
The mid-bus cellphone video shows the male student turning around to head back up the bus aisleway. The male student is visibly angry, very upset, and is seen forcefully pounding his fists together defiantly as he walks.
Wint is off camera, but the undersigned reasonably infers that Wint is behind the male student following him back up towards the front of the bus.
As he walks up the aisleway in front of Wint, in an overt display of strong aggression and uncontrollable anger, the male student leans across a bus seat and violently punches a school bus window with his clenched fist.6/ Pet. Ex. 15.
As Wint came down the narrow aisle behind the student and attempted to squeeze past him to continue to the driver's seat, Wint accidentally brushed against the male student.7/
At that point, the video shows the male student rapidly wheel around and the two begin to tussle, hands on each other, in the bus seat.
Wint backs the male student up into the bus seat, closer to the window. Wint has both hands near, but not on, the neck area of the male student. There is no punching or swinging, just restraining and controlling.
The more persuasive and credible evidence does not support the School Board's claim that Wint was intentionally choking the student with a pressure hold around his neck, nor holding the male student around the neck with his hands.
Rather, the more persuasive evidence shows, and the undersigned finds, that Wint is attempting to control and restrain the student by holding him firmly by the collar of his jacket/sweatshirt.8/
At the end, when a female student jumped in to separate the two, Wint abruptly released his hold and headed back to his driver's seat. The cellphone video ends at that point.
Although the evidence was conflicting, it revealed, and the undersigned credits, that Wint had previously notified the Miami-Dade County School District (District) in writing that this particular male student had been repeatedly disruptive on his
bus.
Specifically, Wint complained in writing on or about
October 4, 2017, that the same male student had been improperly opening the window and throwing objects outside the bus. His report was on a standard reporting form required by the School
Board. It is called Student Case Management Referral,
No. 723119. This other reported incident occurred on or about September 29, 2017, several days before the altercation. Resp.
Ex. 1.
The Student Case Management Referral form turned in by Wint was initialed by a District employee on October 4, 2017, just days before this bus incident on October 10, 2017.9/
Susan Detmold is the district director for Transportation Services since 2013.
Detmold viewed the two videos of the altercation between Respondent and the male student. Pet. Exs. 15 and 16.
Detmold opined that it was inappropriate behavior for a bus driver to engage in the behavior exhibited in the videos.
Detmold testified that if a student is not sitting in his assigned seat, then the school bus driver should give warnings and provide a misconduct referral to the District.10/
She also testified that in accordance with State Board Rule, only the school principals have the authority to discipline students.11/
Detmold testified that the Handbook provides drivers with procedures to follow when handling student misconduct on the bus. Pet. Ex. 6, §§ 10.06-10.07, pp. 94-96.
The Handbook states that school bus drivers can stop the bus if the behavior is a serious one. Drivers will
immediately contact their Dispatch Office by two-way radio and provide them with details of the situation. Drivers are to await the aid of the field operations specialist or school police.
Pet. Ex. 6, § 10.06(c), p. 94.
Wint disregarded this guideline in the Handbook and testified that he stopped the bus, went to the back of the bus to confront the student, but did not call Dispatch for school police until after the physical altercation with the male student had ended.
The Handbook states in accordance with Florida Administrative Code Rule 6A-3.0171, State Board Rule, it is the responsibility of the bus driver [t]o maintain order and discipline, under the direction of the school principal, on the part of every passenger. Pet. Ex. 6, § 2.03(i), p. 13.
The videos show, and the undersigned finds, that Wint attempted, by his actions, to maintain order and safety on the bus in the face of a very unruly, aggressive, and violent male student who was putting the safety of the bus, the bus driver, and other students at risk. Pet. Exs. 15 and 16.
The Handbook states, in pertinent part, the school bus driver is responsible for the safety of the children in his/her care. A driver should place the safety, health, and well-being of his/her passengers above everything else while they are on the bus. Drivers shall maintain a professional attitude. Drivers
should be patient, firm, fair, and friendly. Pet. Ex. 6,
§ 2.05(e), p.15.
The Handbook also states, in part, the school bus drivers will make a reasonable effort to deal with infractions of the rules of student conduct and will, to the best of their ability, maintain order and good behavior by students on their buses. Pet. Ex. 6, § 2.05(o), p. 17. The videos show, and the undersigned finds, that Wint attempted during this incident to maintain order and safety on the bus. Pet. Exs. 15 and 16.
The Handbook states, in pertinent part, the school bus drivers must not touch or put [their] hands on students. Pet. Ex. 6, § 2.06(a), p. 21. The videos show that Wint did indeed lay his hands on the student, but the undersigned finds that this was done to restrain and control a very unruly and violent student, who presented a safety risk to the operation of the bus and other students on the bus. Pet. Exs. 15 and 16.
The Handbook states, in pertinent part, school bus drivers will not physically discipline . . . any student. Pet. Ex. 6, § 10.07(d), p. 96. The videos do not show that Wint physically disciplined a student. Rather, he justifiably attempted to control a violent, angry, and uncontrollable student who placed his safety and the safety of other students at risk. Pet. Exs. 15 and 16.
Ultimate Findings of Fact
Under the facts outlined herein, the undersigned finds that Wint's actions and conduct during this incident conformed with sections 1006.10 and 1012.45, Florida Statutes.
The undersigned finds that the School Board's rules, policies, and Handbook provisions proscribe conduct authorized or required by sections 1006.10 and 1012.45 for a bus driver dealing with an unruly and violent student in an emergency situation. To the extent they do so, they are invalid and not controlling.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2018).
Petitioner alleges that Respondent's conduct violated several rules and policies that establish standards of conduct for bus drivers namely, rule 6A-3.0171, Responsibilities for School Districts for Student Transportation; sections 1006.10 and 1012.45; School Board Policies 4210 (Standards of Ethical Conduct), 4210.01 (Code of Ethics), 4213 (Student Supervision and Welfare), and 8600 (Transportation); and the Handbook for the 2017-2018 school year.12/
Petitioner is required to prove its allegations and its proposed disciplinary action against Respondent by a preponderance of the evidence. § 120.57(1)(j), Fla. Stat.
The preponderance of the evidence standard requires proof by the greater weight of the evidence or evidence that more likely than not tends to prove a certain proposition. In this case, that proposition would be whether or not there is sufficient evidence to establish just cause to terminate Respondent. See Gross v. Lyons, 763 So. 2d 276, 280 n.1
(Fla. 2000).
A hearing at the Division of Administrative Hearings before an Administrative Law Judge is a de novo hearing. This means that evidence must be presented at the administrative hearing and credited by the Administrative Law Judge to justify the action contemplated by the agency. See generally
§ 120.57(1)(j),(k), Fla. Stat. (All proceedings conducted under this subsection shall be de novo.)
Further, a de novo administrative proceeding is intended to formulate and determine action by the agency, not simply to review proposed action taken earlier. Beverly Enters.-
Fla., Inc. v. Dep't of HRS, 573 So. 2d 19 (Fla. 1st DCA 1990).
Petitioner is the duly-constituted governing body of the District pursuant to article IX, section 4, Florida Constitution, and sections 1001.20 and 1001.33, Florida Statutes, with the statutory authority to adopt rules governing personnel matters pursuant to section 1001.42(5).
Notably, however, any rules providing for the appointment, compensation, promotion, suspension, and dismissal of employees are subject to the requirements of chapter 1012.13/
Just cause for discipline or terminations for cause permits 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. rel. Hathaway v. Smith, 35 So. 2d 650
(Fla. 1948). See also Comprehensive Care Corp. v. Katzman, 2010
U.S. Dist. LEXIS 77121 (Mid. Dist. Fla. 2000)(using the word dereliction to replace delict).
The superintendent of Miami-Dade County Public Schools has the authority, under appropriate circumstances, to recommend that an employee be terminated for just cause under section 1012.40 and the applicable CBA.
Section 2.03(i) of the Handbook (Pet. Ex. 6) states, in accordance with rule 6A-3.0171, it is the responsibility of the bus driver [t]o maintain order and discipline, under the direction of the school principal, on the part of every passenger.
Section 2.05(e) of the Handbook (Pet. Ex. 6) specifically states that the school bus driver is responsible for the safety of the children in his/her care. A driver should place the safety, health, and well-being of his/her passengers above everything else while they are on the bus.14/
Based on the facts which the undersigned credits, Respondent's behavior, as exhibited in the videos, was due to his responsibility and authority to control a violent and disruptive male student and protect the safety, health, and well-being of other student passengers.
Section 2.05(o) of the Handbook (Pet. Ex. 6) specifically states that the school bus drivers will make a reasonable effort to deal with infractions of the rules of student conduct and will, to the best of their ability, maintain order and good behavior by students on their buses.
Based on the facts which the undersigned credits, Respondent's behavior, as exhibited in the videos, was due to his intent, and obligation, to restore order, safety, and discipline on the bus as required and authorized by sections 1006.10 and 1012.45. Pet. Exs. 15 and 16.
Section 2.06(a) of the Handbook (Pet. Ex. 6) specifically states that school bus drivers must not touch or put their hands on students. However, based on the male student's disruptive conduct, Respondent found it immediately necessary to take action and make physical contact with the male student to defend himself, gain control of the bus, and protect other students. The undersigned concludes that his actions conformed to sections 1006.10 and 1012.45. Pet. Exs. 15 and 16.
Section 10.06(c) of the Handbook (Pet. Ex. 6) states that school bus drivers can stop the bus if the behavior is a serious one. Drivers will immediately contact their Dispatch Office by two-way radio and provide them with details of the situation. Drivers are to await the aid of the field operations specialist or school police.
However, based on the facts that the undersigned credits, Respondent was not able to immediately call dispatch, since he first had to reasonably control and restrain a very unruly and disruptive student in an emergency situation caused by the male student triggering the exit window alarm while the bus was moving. This course of action was immediately necessary to deal with an emergency, to reasonably control the male student, and to protect the other students on the bus. §§ 1006.10 and 1012.45, Fla. Stat.
Section 10.07(d) of the Handbook (Pet. Ex. 6) specifically states that school bus drivers will not physically discipline any student. Respondent did not violate this provision because his actions did not constitute discipline of the male student. See Williams v. Cotton, 346 So. 2d 1039 (Fla. 1st DCA 1977).
The policies and Handbook cited by the School Board are, in effect, rules as contemplated by chapter 120. They are school board or agency statements of general applicability that
implement, interpret, or prescribe law or policy or describe the procedure or practice requirements of an agency. § 120.52(16), Fla. Stat.
Applicable Statutes
There are two unique Florida Statutes pertaining to the responsibilities and authority of school bus drivers. Both are applicable and probative and useful in deciding the proper disposition of this case.
Section 1006.10, entitled "Authority of school bus drivers and district school boards relating to student discipline and student safety on school buses," obligates bus drivers to take the following action to protect their bus passengers:
The school bus driver shall require order and good behavior by all students being transported on school buses.
The school bus driver shall control students during the time the students are on the school bus
If an emergency should develop due to the conduct of students on the bus, the school bus driver may take such steps as are immediately necessary to protect the students on the bus.
School bus drivers shall not be required to operate a bus under conditions in which one or more students pose a clear and present danger to the safety of the driver other students, or the safety of the bus while in operation.
Another similar provision of the Florida Education Code applies. Section 1012.45 is, entitled "School bus drivers; requirements and duties." It outlines the authority possessed by bus drivers:
(2) Each school bus driver has the authority and responsibility to control students during the time students are on the school bus pursuant to section 1006.10
If an emergency should develop due to the conduct of students on the bus, the school bus driver may take such steps as are immediately necessary to protect the students on the bus.
School bus driver shall not be required to operate a bus under conditions in which one or more students pose a clear and present danger to the safety of the driver or other students, or the safety of the bus while in operation.
These state laws are controlling and prevail over the School Board’s rules, policies, or Handbook. Said another way, to the extent a school board rule, policy, or Handbook provision enlarges, modifies, or contravenes the provisions of
sections 1006.10 and 1012.45, or are unpromulgated rules, they are invalid and unsustainable. §§ 120.52 (8) and 120.57(1)(e), Fla. Stat. See also Dep't of Envtl. Reg. v. Manasota-88, Inc., 584 So. 2d 133 (Fla. 1st DCA 1991).
In analyzing and carefully applying these two key statutes, the undersigned concludes that Respondent’s conduct on the bus on October 10, 2017, complied with both, and any action
he took and conduct on his part was authorized and/or required under both statutes.
In short, these two statutes, sections 1006.10 and 1012.45, controlled over the rules, policies, and Handbook provisions cited by the School Board, and his actions and conduct that day did not violate these controlling and preemptive statutes.
Applicable Case Law
In addition to these specific statutes relating to the conduct and authority of school bus drivers, there is a fairly significant body of case law addressing the use of reasonable physical force by a teacher or other staff member, including bus drivers.
One Florida case, cited by several other courts around the nation, addresses the authority of Florida teachers to control unruly students in the classroom.
In the seminal case of Williams v. Cotton, 346 So. 2d
at 1039, the district court considered a civil lawsuit naming a teacher, Williams, as a defendant for certain injuries received by one of his students during a classroom altercation. The district court examined former section 232.27, Florida Statutes, which required teachers to control their pupils and keep good order in the classroom.
As background, the case revealed that the student, Cotton, was unruly, boisterous, and was disturbing the other students. After repeated requests by the teacher to quiet down and take a seat, Williams and the student engaged in a physical confrontation necessitated, according to the teacher, by his attempt to restore order in his classroom. Apparently, Cotton was physically injured during this confrontation and sued.
Although the primary issue in the case was whether the evidence supported the jury’s verdict of liability, the district court felt it necessary to discuss the extent of a teacher’s authority and duties in Florida. The court commented that teachers have the power and clear duty under the law to control their classroom and restore order. Of particular interest is the following quote from the court:
This statute (F.S. 232.27), in authorizing – in fact requiring – a teacher to keep good order in his classroom necessarily implies a power to the teacher to use reasonable physical force (not amounting to corporal punishment) to do so. Without such reasonably implied power, the requirement to keep good order would be meaningless.
The Cotton case was subsequently cited by the Supreme
Court of Nebraska in Daily v. Bd. of Educ., 588 N.W. 2 813
(Nebraska 1999). Although the Daily decision dealt with the issue of what did or did not constitute corporal punishment in a
school setting, it cited and emphasized the Cotton court’s
comments:
The Florida court found that a Florida statute requiring teachers to keep good order in the classroom necessarily implies a power to the teacher to use reasonable physical force (not amounting to corporal punishment) to do so. The court found that without such reasonably implied power, the requirement to keep good order would be meaningless.
Finally, in Daniels v. Gordon, 503 S.E. 2d 72 (Ga.
Dist. Ct. of Appeals 1998), Cotton was cited again for the
proposition that the use of reasonable physical force may be appropriate under some situations that arise when a teacher seeks to restore order and regain control of the classroom. See also Peterson v. Baker, 504 F.3d. 1331 (11th C.A. 2007).
In short, sections 1006.10 and 1012.45 are clear that a school bus driver is obligated to take reasonable steps to control the students on his bus and is authorized to take such steps as are immediately necessary to protect the students on the bus. §§ 1006.10(4) and 1012.45(4), Fla. Stat. This is exactly what the bus driver did. He met force with force to control a violent student and prevent increasing chaos and danger on the bus, and protect himself and the other students.
Based on a careful review of the credible facts and applying the applicable statutes, the undersigned concludes that Respondent did not violate sections 1006.10 and 1012.45, the
controlling law. In fact, the physical action he took to protect himself and the other students from a violent and unruly student was not only authorized, but required, by the statutes under the circumstances.
There can be no real dispute that Respondent was confronted with an emergency caused by a student who triggered the bus alarm while the bus was in operation and moving. The student became violent in a confined space while pandemonium broke out inside the bus.
Had Respondent done nothing and allowed the situation to escalate, he would have been accused of ignoring his obligations under the controlling statutes.
Under these unique circumstances, and the emergency confronting the bus driver, the undersigned concludes that there is not just cause to terminate Respondent’s employment. To do so would be contrary to the law.
Since his conduct and actions complied with the controlling statutes, there was no violation proven and no just cause to terminate him.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County immediately reinstating Respondent, Livingston Wint, to his position as school bus driver
and provide him with back pay and other accumulated benefits since his suspension.
DONE AND ENTERED this 8th day of August, 2018, in Tallahassee, Leon County, Florida.
ROBERT L. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2018.
1/ Since they are part of the record, it is generally not necessary to repeat or restate them in this Recommended Order.
2/ Likewise, since it is part of the record, it is not necessary to repeat or restate portions of it in this Recommended Order.
3/ No emergency, real or imagined, existed which would have justified the student's actions.
4/ Each video shows a segment of the confrontation, and at a different angle. However, there are portions of the confrontation that were not recorded, particularly the initial moments of the confrontation at the back of the bus.
5/ Wint had complained to school administration about this particular male student's disruptive behavior on previous occasions. As a result, school security had assigned the student to a seat closer to the front of the bus, presumably so Wint could keep a closer eye on him.
6/ The undersigned reasonably infers from these facts that Wint observed this aggressive conduct because he was following the male student back up the bus aisle towards the front of the bus. He is close to other students when this occurs.
7/ It is notable that as Wint tried to pass, he did so calmly and without shoving the male student or acting aggressively. Since the situation had calmed down, Wint was simply heading back to his driver's seat.
8/ No medical evidence was presented to support a finding that the male student was choked or injured. The male student was not called during the hearing, nor were any bus students called as witnesses for the undersigned to observe or question.
9/ The form persuades the undersigned that Wint had, along with verbal complaints, taken reasonable steps to resolve the student's disruptive behavior. Wint understandably had a heightened sense of needing to take control to quell the repeated problems caused by this male student and to provide for the safety of the bus operation and his bus students.
10/ As found previously, the undersigned concludes that this was done by way of the Student Case Management Referral form filed by Wint prior to the incident.
11/ Based on the undersigned's review of the video evidence, the undersigned does not believe Wint's physical contact or hands on the male student on the bus constituted discipline. Rather, it was necessary and appropriate action he took to protect himself and other students from the unruly and angry male student.
12/ These laws, policies, and the Handbook provisions are set forth in detail in the applicable statutes and documents admitted by the parties, and do not generally require repeating here.
13/ This would include section 1012.45, which spells out, as explained herein, the duties of school bus drivers.
14/ These two sections of the Handbook appear to be consistent with the law.
Kim M. Lucas, Esquire
Alberto M. Carvalho, Superintendent Miami Dade County Public Schools
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
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.
