STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1221

)

FAYE NORRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 4, 1981, in St. Petersburg, Florida, and on June 11, 1981, in Clearwater, Florida.

The following appearances were entered: George M. Osborne, Esquire, St.

Petersburg, Florida, appeared on behalf of Petitioner, School Board of Pinellas County; and James B. Loper, Esquire, Tampa, Florida, appeared on behalf of Respondent, Faye Norris.

By letter dated April 2, 1981, the Superintendent of Schools notified Respondent that she was being suspended without pay from her employment with the School Board of Pinellas County, Florida, effective that same date, and that he would recommend to the School Board approval of that suspension, and dismissal. On April 15, 1981, Respondent requested a hearing, and copies of the two letters were filed with the Division of Administrative Hearings on April 29, 1981.

Thereafter, the parties requested that the hearing be held on an expedited basis in order that it could be completed before the end of the school year. Because the request for an expedited hearing was granted, the hearing was conducted although the parties failed to comply with the undersigned's May 20, 1981, Order requiring a prehearing stipulation setting forth, inter alia, the legal and factual issues involved in this cause.

Similarly the parties waived their rights to present opening or closing arguments at the hearing in this cause and did not exercise their rights to file post-hearing memoranda of law or proposed findings of fact and conclusions of law in the form of a recommended order.

Petitioner presented the testimony of Robert H. Wallace Waneta M. Wallace, Dr. Jerry C. Spears, Tina Eatman, Deborah Eatman, Robert Worrall, Jared Rigby, Deana Fuller, Robert Williams, Jimmy M. Carlyle, June E. Schrader, Elaine Hunt, Christina Ross Hunt, Gail Edith Morrison, Dawn Garland, Lisa Hubbell, Stephen Banks, Walter Gary Bond; Parris Lilly, Jr.; John Walker; Walter M. Allison, III; and Mitchell J. Kitchen. Petitioner's Exhibits 1 through 10 were admitted into evidence. The Respondent, Faye Norris, testified on her own behalf and presented the testimony of Walter Pownall; Parris Lilly, Jr.; and Beverly Robinson. Although Respondent offered her Exhibits 1 through 7, only Respondent's Exhibits 5, 6 and 7 were admitted in evidence.

FINDINGS OF FACT

1. Respondent, Faye Norris, was employed by the School Board of Pinellas County as a bus driver in approximately September, 1978.

   
   

2. While transporting children during the 1980-81 school year, Respondent frequently failed to completely stop at stop signs, drove at an excessive rate of speed for conditions, drove in excess of the applicable speed limit, and drove so fast turning corners that children almost slid off their seats and the bus left the road and drove across lawns. On a number of occasions, Respondent drove so fast that when she reached a bus stop, the bus did not stop until it had partially passed the bus stop. When loading children, Respondent frequently began to drive away from the stop before the children were seated, and on one occasion, a child was thrown to the rear of the bus. Respondent was "clocked" by grandparents of children on her bus, driving the bus at fifty-five miles per hour during rush-hour traffic in a thirty-five-mile per hour zone. Respondent regularly made fast starts and drove at an excessive rate of speed in the school yard at Norwood Elementary School and on one occasion almost ran over a teacher walking across the playground area. Frequently while Respondent was loading or unloading children she failed to activate the flashing lights on the bus and failed to extend the sidearm. On one occasion, Respondent stopped at a convenience store to make a telephone call. She left the door of the bus open and the engine running. The bus, which was full of children at the time had an automatic transmission.

   
   

3. Some of the children on Respondent's bus were nervous about riding with her because of her speeding; and Lisa Hubbell, one of those children requested Respondent to drive more slowly because she was afraid. Parents of children riding the bus became frightened about the safety of their children. Mrs. Eatman contacted employees of the School Board on numerous occasions to complain about Respondent's driving habits, and Mrs. Robert Wallace contacted the School Board on two occasions. Jimmy M. Carlyle and Gail Edith Morrison principals at two of the schools to which Respondent transported children, received numerous telephone calls from parents complaining about Respondent's driving. Carlyle spoke to Respondent and cautioned her about speeding.

   
   

4. Mitchell J. Kitchen, a route coordinator employed by the Petitioner, received telephone complaints about Respondent's excessive speed and discussed Respondent's driving with her on several occasions. Parris Lilly, Jr., a route supervisor, received complaints regarding Respondent's driving from principals, teachers, and citizens. He counseled Respondent on several different occasions.

   
   

5. On March 27, 1981, Dr. Jerry C. Spears was driving through the residential neighborhood near his home when Respondent's bus came speeding toward him in his lane, and he had to drive off the street in order to avoid a head on collision. He began chasing Respondent's bus, which continued speeding and running stop signs. The bus was occupied by children. When Respondent stopped to load more children, Dr. Spears approached the bus to talk to the driver. Respondent slammed the door on his arm. Dr. Spears immediately contacted the Superintendent of Schools.

   
   

6. Also on March 27, 1981, Respondent drove her morning route picking up children and transporting them to their schools without using the caution lights on the bus. The alternator was not working properly, and she was afraid that the bus was going to stall. Although she knows that school board policy requires that malfunctioning safety equipment be reported immediately and that the bus be driven no further, she failed to report that she was having a problem

   with the bus stalling until after she had driven a distance of approximately ten miles through downtown St. Petersburg during rush hour traffic.

   
   

7. Bus drivers for the School Board of Pinellas County are required to activate the amber lights on the bus at least two hundred feet prior to the bus stop. Respondent activates those lights, if at all, fifteen feet before each stop.

   
   

8. Walter M. Allison, III, Assistant Director of Transportation for the Petitioner, received complaints regarding Respondent's excessive speed. He told those persons complaining that their complaints needed to be reduced to writing and submitted to him. After receiving letters from several parents of children assigned to Respondent's bus and from Dr. Spears regarding his experience with Respondent, Allison reviewed Respondent's personnel file and scheduled a meeting at Bay Vista Elementary School on April 1, 1981, which meeting was attended by Respondent, a representative of Respondent's union, Mrs. Morrison, and Mr. Allison. The written complaints were reviewed with Respondent at that time. On April 2, 1981, the Superintendent of Schools wrote to Respondent advising her that she was suspended without pay effective April 2, 1981, because of her unsafe driving. He further advised her that he would seek School Board approval of that suspension and additionally would request that she be dismissed from her employment with the School Board of Pinellas County. Pursuant to Respondent's request that she be afforded an opportunity to face her accusers pursuant to a collective bargaining agreement with the School Board, a second meeting was held on April 7, 1981.

   
   

   CONCLUSIONS OF LAW

   
   

9. As set forth in the introductory portion of this Recommended Order, the parties hereto failed to file a pre-hearing stipulation, failed to present legal argument at the hearing, and failed to submit post-hearing memoranda or proposed recommended orders. Two letters between the parties were the only documents transmitted by the Petitioner to the Division of Administrative Hearings with the request that a hearing be conducted pursuant to Chapter 120, Florida Statutes. Neither party has cited nor relied upon any statute or regulation setting forth the authority of the School Board to dismiss the Respondent from employment with or without cause, setting forth any procedures required to be followed before a noninstructional employee can be suspended or dismissed from employment, setting forth any entitlement which Faye Norris might have to continued employment with the School Board, or setting forth any entitlement which Faye Norris might have to a formal hearing conducted by the Division of Administrative Hearings.

   
   

10. The only legal authority cited by the School Board throughout the course of this proceeding involves the School Board's request during the hearing for the undersigned to take official recognition of Chapters 316 and 322, Florida Statutes. Chapter 316 is the Florida Uniform Traffic Control Law, and Chapter 322 regulates drivers' licenses. Clearly, the School Board of Pinellas County has no authority over the enforcement of traffic regulations or over the issuance or revocation of drivers' licenses. Accordingly, those statutes cannot confer the authority for either the conduct of the hearing in this cause or the termination of Respondent from Petitioner's employment.

    
    

11. Chapter 234, Florida Statutes, which has not been cited by either party, does provide some assistance. That chapter regulates the transportation of school children and sets forth the general qualifications for a school bus driver, but is silent regarding conduct by a school bus driver which can form

    the basis for disciplinary action against that driver. However, Section 234.02, Florida Statutes, requires that maximum regard for safety be the primary requirement observed by school boards in appointing bus drivers. Such a mandate from the Legislature would prohibit a school board from permitting one of its buses to be operated in disregard of the safety of the children on that bus.

    Additionally, it is illogical to conclude that under no circumstances can the School Board of Pinellas County discharge a bus driver.

    
    

12. In the case at bar, the School Board has sustained its burden of showing that Faye Norris not only is an unsafe driver but also evinces a total lack of regard for the safety of the children on her bus and of occupants of other vehicles. The action proposed to be taken by the School Board is neither arbitrary nor capricious, but rather is both reasonable and necessary.

    
    

13. The only defenses presented by Respondent are that she has not been involved in an accident during the 1980-81 school year and that she has not had an opportunity to face her accusers. Neither defense possesses any merit. Additionally, Respondent argued throughout this hearing that some unspecified condition of the collective bargaining agreement between Respondent's union and the School Board has been violated. That argument is also devoid of merit since the undersigned has no jurisdiction to hear an action for alleged breach of a collective bargaining agreement. It is interesting to note that Respondent did not argue any legal right to retain her position arising from that agreement either.

Based upon the foregoing findings of fact and conclusions of law, it is, therefore,

RECOMMENDED THAT:

A final order be entered approving the suspension of Faye Norris without pay effective April 2, 1981, and dismissing her from employment with the School Board of Pinellas County, Florida.

RECOMMENDED this 20th day of August, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1981.

COPIES FURNISHED:

George M. Osborne, Esquire

433 Fourth Street North

St. Petersburg, Florida 33701

James B. Loper, Esquire Hamilton & Douglas, P.A. 2620 West Kennedy Boulevard Tampa, Florida 33609

Gus Sakkis, Ph. D.

Superintendent

School Board of Pinellas County 1969 East Druid Road

Post Office Box 4688 Clearwater, Florida 33518

Docket for Case No: 81-001221

Orders for Case No: 81-001221