STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WARREN HAYWARD, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0970
) SCHOOL BOARD OF FRANKLIN COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 18 and 19, 1988, in Apalachicola, Florida.
The Petitioner was represented by Van Russell, Esquire. The Respondent was represented by Robert Woolfork, Esquire.
INTRODUCTION
The Respondent, the School Board of Franklin County (hereinafter referred to as the "School Board"), informed the Petitioner, Warren Hayward, Sr., by letter dated February 13, 1986, that his employment with the School Board had been terminated as of February 4, 1986. By letter dated February 28, 1986, Mr. Hayward requested an administrative hearing concerning his termination from employment.
At the formal hearing the School Board presented the testimony of Allen Dempsey, Sherman Lloyd Alford, Matthew Cramer, William Thomas Jenkins, Mr.
Hayward, David Conrad Meyer, Gloria Tucker and Donna Ward. The School Board also offered 5 exhibits, which were marked as "Respondent's" exhibits and accepted into evidence.
Mr. Hayward presented the testimony of Earnest Carter Houseman, Willie L. Speed, Sr., Clifford Williams and Daniel White. Mr. Hayward also testified on his own behalf. Mr. Hayward offered 9 exhibits, which were marked as "Petitioner's" exhibits and accepted into evidence.
Official recognition of Sections 234.111 and 316.159, Florida Statutes, and the Florida Drivers' Handbook was taken.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
ISSUE
Whether the Petitioner, Warren Hayward, Sr., should be disciplined as an employee of the School Board?
FINDINGS OF FACT
The Petitioner, Warren Hayward, Sr., began employment as a school bus driver with the School Board sometime in either 1980 or 1981. At all times pertinent to this proceeding, Mr. Hayward was a bus driver for the School Board.
At the time that Mr. Hayward began his employment as a bus driver with the School Board, he was given a copy of the School Bus Driver's Handbook by Mr. David Conrad Meyer, the Supervisor Director of Transportation of the School Board.
Mr. Meyer was Mr. Hayward's immediate supervisor. Mr. Meyer also Supervised the other seven school bus drivers who worked for the School Board. Mr. Meyer was responsible for evaluating the eight school bus drivers and insuring their compliance with the law concerning the operation of school buses. Mr. Meyer had driven a school bus from 1972 until 1979 and has been Director of Transportation since 1979.
On the morning of December 4, 1985, Mr. Hayward stopped at one of the regular stops on his route along Bay City Road in Apalachicola, Franklin County, Florida. There was a dirt turn around road off of Bay City Road which Mr. Hayward drove the bus around and up to the pavement of Bay City Road where he stopped the bus to pick up students.
After stopping the bus that morning, Allen Dempsey, Lloyd Alford and William Thomas Jenkins, who were all friends, entered the bus with a few other students. Allen and Lloyd were in the ninth grade and Billy was in the seventh grade at the time of the incident. They all attended Apalachicola High School. The last three students to enter the bus were Allen, followed by Lloyd and then Billy.
Students had been directed in the past that the first five seats of the bus were to be used only by elementary school students. On occasion, other students were required to sit in the first five seats as a disciplinary precaution. Other than those exceptions, the older students, including Allen, Lloyd and Billy had been instructed not to sit in the first five seats of the bus.
Upon entering the bus on December 4, 1985, Allen, Lloyd and Billy proceeded to the middle to rear portion of the bus. Before Allen or Billy could get into a seat, Mr. Hayward began moving the bus. Mr. Hayward started the bus without warning and without insuring that all of the students were in their seats. When the bus first moved it jerked.
When the bus began to move, Billy fell backwards into the seat and hit his head against the inside of the outer wall on the side of the bus. Lloyd, who had taken the seat across the aisle from Billy and had witnessed Billy fall, asked him if he was okay. Billy said that he was a little dizzy.
As a result of the fall, Billy eventually had a knot on the back of his head. Billy did not suffer an permanent injuries, however.
After Billy told Lloyd that he was little dizzy, Lloyd stood up and yelled toward Mr. Hayward that "you are suppose to wait until we are seated before taking off--you made Billy fall and hurt himself" or words to that effect.
In response to Lloyd's comment, Mr. Hayward stopped the bus, got up out of his seat and stood in the aisle next to his seat. Mr. Hayward replied, in effect, that "you could have used one of the first five seats; I only have to wait until you are past the first five seats." Mr. Hayward then sat down and proceeded on his route.
At no time on December 4, 1985, did Mr. Hayward inquire about Billy's fall or go back to where Billy was seated to check on him. Nor did Mr. Hayward report the incident to Mr. Meyer or any other person.
At the time of the incident there were approximately fifteen students on the bus.
None of the students, including Billy, reported the incident of December 4, 1985, to anyone at school that day.
On the evening of December 4, 1985, Billy reported the incident to his Mother when he arrived home. After inspecting the knot which had appeared on Billy's head, Billy's parents, Lloyd and Billy went to the home of the principal of Apalachicola High School, Mr. Fox, and reported the incident.
Mr. Fox sent the Jenkins family and Lloyd to see Ms. Gloria Tucker, the Franklin County Superintendent of Schools. Ms. Tucker met with them and observed the knot on the back of Billy's head. Ms. Tucker told Billy's parents that, if they wished to make a complaint, they would have to do so in writing the next morning. She also told them that she would contact Mr. Meyer and inform him that they wanted to make a complaint.
After the Jenkins family and Lloyd departed, Ms. Tucker called Mr. Meyer and reported the incident to him. Mr. Meyer had not been told of the incident until this time. She directed Mr. Meyer to take the statements of the Jenkins family and the other students and to look into the matter.
On the morning of December 5, 1985, Mr. Fox asked Allen, Lloyd, Billy and Matthew Cramer to write a statement describing the incident of the day before. Matthew Cramer was a student who was already on the bus on December 4, 1985, when Billy entered the bus. Matthew witnessed the incident of December 4, 1985. All of the students and Billy's parents filed statements. Because the statements were given on December 5, 1985 all of the students, except Billy, dated their reports as of that date. Billy dated his statement December 4, 1985, the date of the incident as opposed to the date he made the statement.
At some point shortly after the incident, Billy was seen by a physician and his head was x-rayed.
Mr. Meyer sent a letter dated December 9, 1985, to Mr. Hayward informing him that a complaint concerning the December 4, 1985, incident had been received and that it would be reported to the School Board at the regularly scheduled meeting on December 11, 1985. A copy of the written statements made by the students and Billy's parents was attached to the letter. Mr. Hayward, who received the letter and statements, was also told that he could respond if
he wished. No response to this letter or the complaint was made by Mr. Hayward at that time.
Billy's parents and other parents attended the School Board meeting on December 11, 1985. Because of concerns expressed by the parents for the safety of students riding Mr. Hayward's bus and concern for Mr. Hayward's safety, Ms. Tucker directed Mr. Meyer to ride with Mr. Hayward on his bus route.
By letter dated December 12, 1985, Ms. Tucker informed Mr. Hayward that the Board had authorized her to commission an investigation concerning the incident of December 4, 1985, and other alleged incidents, and that J. Patrick Floyd, Esquire, Ms. Tucker's attorney, would conduct the investigation. Ms. Tucker also informed Mr. Hayward that the School Board had Suspended him with pay until the January, 1986, meeting of the School Board.
Mr. Floyd conducted an investigation of the December 4, 1985, incident and other incidents, and submitted a written report to Ms. Tucker before the January 16, 1986, School Board meeting. At no time, however, did Mr. Floyd talk to Mr. Hayward. Ms. Tucker also discussed the report with Mr. Floyd.
Based upon Mr. Floyd's report and based upon Ms. Tucker's understanding of other incidents involving Mr. Hayward's operation of his bus, Ms. Tucker recommended to the School Board that Mr. Hayward be terminated as an employee.
Mr. Floyd's report was presented to the School Board at its January 16, 1986, meeting. A copy of the report was also provided to Mr. Hayward.
By letter dated January 17, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Floyd's report and Ms. Tucker's recommendation had been presented to the School Board meeting of January 16, 1986, and that the School Board would consider the report and recommendation at its February 4, 1986, meeting. The letter indicated that Mr. Hayward could attend the meeting to discuss the report and to present witnesses and other evidence.
By letter dated January 30, 1986, Mr. Hayward responded to the School Board through his counsel.
In a memorandum dated February 3, 1986, Ms. Tucker informed the School Board that she could not attend the School Board meeting of February 4, 1986, and restated her recommendation that Mr. Hayward's employment be terminated.
At its February 4, 1986, meeting, the School Board decided to terminate Mr. Hayward as an employee of the School Board. This decision was reached after allowing counsel for Mr. Hayward to respond to the allegations concerning Mr. Hayward's operation of his school bus.
In a letter dated February 13, 1986, counsel for the School Board informed Mr. Hayward and his counsel that Mr. Hayward had been terminated from employment by the School Board and informed them of Mr. Hayward's right to request an administrative hearing to contest the decision.
In a letter dated February 28, 1986, Mr. Hayward requested an administrative hearing to contest his termination from employment by the School Board.
Mr. Hayward had started his bus in motion before all students on the bus were seated on other occasions before the December 4, 1985, incident.
Several other complaints concerning Mr. Hayward's operation of his bus had been received in writing by Mr. Meyer prior to the December 4, 1985, incident. Mr. Meyer only investigated reports if the complaining party made a written report of the incident. No written complaints concerning the operation of a bus have been received by Mr. Meyer concerning any other driver. Two written complaints have been received about another driver but those complaints did not concern the safe operation of a school bus.
One complaint received by Mr. Meyer was from Ms. Donna Ward, a secretary at Chapman Elementary School. The complaint concerned an incident witnessed by Ms. Ward on May 26, 1981. Ms. Ward heard persistent horn blowing outside the school and went outside of the front of the school to investigate. It was raining and the circular drive used to pick up children by parents and the school bus drivers was full of waiting cars and buses. Mr. Hayward's bus was out on the street near the entrance of the driveway and Mr. Hayward was blowing the horn. The cars in front of him could not move, however. Nor was the area exclusively for use by the school buses. Mr. Hayward had been told to arrive early to avoid difficulty getting his bus to the pickup point within the driveway. He had also been told that the driveway at the school was available for use by parents and not just school buses.
After blowing the horn for approximately four to five minutes, Mr. Hayward drove the bus to the exit of the driveway. Mr. Hayward then began to back the bus into the driveway in front of another bus parked at the curb. As he did so, students began exiting the building. Ms. Ward grabbed one student who ran behind Mr. Hayward's backing bus and pulled him back onto the sidewalk. No one was behind the bus giving Mr. Hayward directions as he backed the bus into a school grounds area congested with students and vehicles.
Mr. Hayward's actions in backing the bus were not safe.
At some point along Mr. Hayward's bus route along Bluff Road, the road crosses a railroad track. Mr. Hayward must cross the tracks once on his way out Bluff Road, turn around after picking up students and cross the tracks again on his way back. On one occasion, Mr. Hayward failed to stop at the crossing on his way out Bluff Road even though the warning lights were flashing. On his way back along Bluff Road, Mr. Hayward did stop the bus but failed to open the doors of the bus before crossing the tracks.
On another occasion, Mr. Hayward slowed the bus at the railroad crossing but did not stop until he was already on or very near the tracks and observed a crane moving on the tracks. Mr. Hayward then slammed on the brakes and backed the bus up. The sudden stop of the bus caused an elementary student to hit and bloody her nose.
The warning lights on Bluff Road which Mr. Hayward had to cross malfunctioned on a number of occasions. On one occasion, the light malfunctioned while Mr. Meyer was riding with Mr. Hayward. Mr. Hayward followed safe procedures on this occasion. Although the lights did malfunction on occasion, they also worked properly on other occasions.
Mr. Hayward has received two driving citations and accumulated six points on his driving record. These citations were associated with his driving of his personal automobile and not a school bus. On May 4, 1983, Mr. Hayward
was cited for faulty brakes and received two points. On this occasion, Mr. Hayward was unable to stop his car because his brakes failed. He drove into the wall of a store. Mr. Hayward had the brakes repaired approximately two weeks before this incident.
On June 15, 1984, Mr. Hayward was cited for speeding and received four points.
None of the other seven school bus drivers of the School Board have received driving citations during the past seven years.
Except for a few students in Carrabelle, no black students ride the school bus in Franklin County. This is because, although black students make up approximately thirty-five percent of the student population, they all live within one mile of their schools and only students who live more than one mile from their schools are provided bus transportation. Therefore, the route driven by Mr. Hayward included stops for only white students.
Mr. Hayward was the only black bus driver ever employed by the School Board.
Mr. Hayward was the President of the N.A.A.C.P. for Franklin County during 1984, and had been active in community affairs. Among the activities Mr. Hayward was involved in were the adoption of single-member districts for the School Board. The School Board ultimately approved single-member districting for Franklin County.
None of the members of the School Board who took part in the decision to terminate Mr. Hayward's employment with the School Board were elected to the School Board after single-member districting was adopted.
When Mr. Hayward first applied for his position with the School Board, he was told by Mr. Meyer that there was no vacancy. Mr. Hayward contacted the Franklin County Superintendent of Schools, Ms. Tucker, about what Mr. Meyer told him. After Ms. Tucker spoke with Mr. Meyer, Mr. Meyer gave Mr. Hayward an application and ultimately was hired as a bus driver.
On May 3, 1985, a meeting was held between Mr. Hayward, Ms. Tucker, Mr. Fox, Ms. Rose McCoy, the Principal of Chapman Elementary School and two others. Ms. Tucker scheduled the meeting because of problems voiced by Mr. Hayward concerning the treatment of discipline referrals by the Principals and complaints concerning Mr. Hayward's treatment of students and the two Principals. Mr. Hayward identified four students as discipline problems during this meeting. None of the students involved in the December 4, 1985, incident were named as problem students by Mr. Hayward. Mr. Fox agreed to administer corporal punishment to one of the students named by Mr. Hayward at the meeting and offered to allow Mr. Hayward to witness the punishment. Mr. Hayward declined.
There is a relationship between a school bus driver's ability to manage students and the safe operation of a school bus. A driver must be able to manage students.
The most important consideration for a school bus driver is the safety and health of the driver's student passengers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding. Department of Transportation v. J.W.C. Company, Inc. , 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Therefore, the burden of proof in this proceeding is on the School Board. Because Mr. Hayward's employment is at stake, the evidence to support the charges against Mr. Hayward must be clear and convincing. Ferris v. Turlington,
510 So.2d 292 (Fla. 1987). See also, Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980).
The School Board is authorized to dismiss school employees pursuant to Section 230.23(5)(f), Florida Statutes. The superintendent of schools may recommend dismissal of school employees. Section 230.33(7)(e), Florida Statutes.
Section 234.02, Florida Statutes, provides, in pertinent part, the following:
Maximum regard for safety and adequate protection of health shall be primary requirements which shall be observed by school boards in routing buses, appointing drivers, and providing and operating equipment, in accordance with all requirements of law and regulations of the state board.
In furtherance of the requirement of Section 234.02, Florida Statutes, Rule 6A-3.017(1)(d)2.a., Florida Administrative Code, requires that school bus drivers "study and observe all laws and regulations of the state board of education and the school board relating to the service of transportation."
Among the laws and regulations which school bus drivers are required to observe is Section 234.111, Florida Statutes, which provides the following:
Each school bus shall be brought to a full stop before crossing any railroad track ... and shall not proceed until the driver has clearly observed that it is safe to proceed.
The requirement that a driver bring a school bus to a full stop and not proceed until the driver has clearly observed that it is safe to proceed is also contained in Rule 6A-3.017(1)(d)2.a., Florida Administrative Code. Rule 6A-3.017(1)(d)2.a., Florida Administrative Code, imposes the following responsibility on school bus drivers:
To bring bus to a stop at least fifteen (15) feet from the nearest rail of a railroad grade crossing. The driver shall not proceed across tracks
until after looking carefully in each direction, opening the door and listening for the sound of an approaching train, and determining that it is safe to proceed. The bus door shall be closed before proceeding across the tracks of a railroad.
This requirement is also included in the School Bus Driver's Handbook, page 7. See also, School Bus Driver's Handbook, pages 9 and 18-19.
The evidence in this case proved that Mr. Hayward failed to comply with Section 234.111, Florida Statutes, and Rule 6A-3.017(1)(d)2.o., Florida Administrative Code, on two separate occasions. On one of those occasions, Mr. Hayward's failure to bring his school bus to a full stop before crossing a railroad track resulted in one student bloodying her nose. Mr. Hayward's actions were inconsistent with the requirement of Section 234.02, Florida Statutes, that maximum regard for safety and protection of health be given in the operation of school buses.
Another requirement of law that school bus drivers are required to comply with is imposed by Rule 6A-3.017(1)(d)2.1., Florida Administrative Code:
To prepare immediately after every accident involving the bus or a school bus passenger an accident report to be filed with the superintendent.
This requirement is also included in the School Bus Driver's Handbook, page 8. Pursuant to the Handbook, all accidents involving personal injury, "no matter how small" are to be reported.
The evidence proved that Mr. Hayward failed to report the injury sustained by Billy Jenkins on December 4, 1984, which was caused by Mr. Hayward moving the bus before Billy was seated. Although the evidence failed to prove that Mr. Hayward had actual knowledge of Billy's injury, the evidence proved that Mr. Hayward should have known. After Billy fell, one of the students informed Mr. Hayward that he had caused Billy to fall and to hurt himself. Mr. Hayward heard the student's comment because he immediately stopped the bus, stood up in the aisle next to his seat and addressed the student. Mr. Hayward should have asked if anyone had been injured. He did not do so, however.
Also pertinent to this proceeding is the following responsibility imposed on school bus drivers by the School Bus Driver's Handbook, page 11: "To observe that all children are seated before the bus moves." The evidence proved that Mr. Hayward failed to meet this responsibility on December 4, 1984, and on other occasions.
The School Bus Driver's Handbook, page 10, also requires the following:
23. If circumstances make it necessary to back a bus on school grounds, do so with proper signals from a responsible person outside and behind the bus.
The evidence proved that Mr. Hayward failed to comply with this requirement on May 26, 1981, when he backed his school bus into a school driveway congested with other vehicles and children without the assistance of any person outside and behind the bus.
Finally, Rule 6A-3.017(1)(d)2.v., Florida Administrative Code, imposes the following responsibility on school bus drivers:
To maintain as far as practicable by patient and considerate treatment of parents a feeling of security in the safety of students transported.
See also, School Bus Driver's Handbook, page 8. On page iii of the School Bus Driver's Handbook it is recognized that school bus drivers interact with students, parents, school officials and others and that, therefore, drivers must be good public relations persons. It is recognized that Mr. Hayward may have had difficulty in fully implementing these requirements through no fault of his own because of his involvement in attempts to improve his community.
Despite this conclusion, however, Mr. Hayward's behavior in operating his school bus failed to meet the requirement of Rule 6A-3.017(1)(d)2.v., Florida Administrative Code. Mr. Hayward's failure to be sure that students were seated before moving the school bus, his failure to report Billy Jenkins' injury, his failure to always stop at the railroad crossing along his route and his failure to properly back his bus up on May 26, 1981, caused a loss of the feeling of security which parents and school officials must have in a school bus driver.
In defense of Mr. Hayward, counsel for Mr. Hayward has raised a number of arguments in his proposed recommended order. The following is a general summary of those arguments and the reason, if any, for rejecting them:
It is first argued that the School Board failed to meet its burden of proof because only four of the students who were on Mr. Hayward's bus on December 4, 1984, testified and they were all good friends. Although it is generally true that three of the students (Allen, Lloyd and Billy) were good friends, their testimony, the statements which they executed the day after the incident and other evidence (including the fact that Ms. Tucker saw and felt the lump on the back of Billy's head the evening of the incident), when weighed with all the other evidence, was credible and supported the findings of fact made in this Recommended Order.
Additionally, the fact that only four of the students who were on the bus on December 4, 1984, testified proves nothing. If other students could have added anything to the proceeding, counsel for Mr. Hayward could have called those students as witnesses. His failure to do so has had no more influence on the findings of fact reached in this case than the 4 School Board's failure to call those students.
Secondly, it has been argued that the testimony of Allen Dempsey, Lloyd Alford, Matthew Cramer and Billy Jenkins included inconsistent statements. Although there were inconsistencies in the testimony of many of the witnesses in this proceeding, it has been recognized that the events at issue in this proceeding occurred approximately four years or more before the hearing. Based upon the weight of the evidence, the testimony of Allen Dempsey, Lloyd Alford, Matthew Cramer and Billy Jenkins was credible.
Counsel for Mr. Hayward has argued that Billy's failure to report the incident to authorities until the evening of December 4, 1984, is significant. In light of the fact that the injury sustained by Billy was not serious, especially to a seventh grader, and the other evidence in this proceeding, it has been concluded that the failure to immediately report the incident is not a significant factor.
Additionally, the inconsistencies concerning the date of the incident of December 4, 1984, has been emphasized by counsel for Mr. Hayward. Although it is true that the testimony concerning whether the incident occurred on December
4 or 5, 1984, was not consistent, the weight of the evidence proved that the incident occurred on December 4, 1984.
Thirdly, with regard to other incidents of alleged poor driving, it has been argued that many of the complaints concerning those incidents were uncorroborated hearsay. This argument is correct, in part. To the extent that alleged incidents were raised by hearsay testimony or other hearsay evidence, those alleged incidents have not been proved and no findings of fact concerning those incidents have been made. For example, Respondent's exhibit 2 contains what purports to be a written complaint from a Mrs. Tommy Reese. This complaint constitutes uncorroborated hearsay. Therefore, no findings of fact based upon this complaint have been made.
Findings of fact have been made in this Recommended Order concerning only those incidents for which admissible evidence was presented at the formal hearing. All other alleged incidents have been ignored.
Fourthly, it has been argued in effect that the School Board's initial decision was improperly made for a number of reasons. One of the alleged reasons is that Mr. Meyer, Mr. Hayward's direct supervisor, did not make any recommendation concerning the termination of Mr. Hayward's employment prior to the School Board's decision. Another alleged reason why the School Board's decision was improper is that Ms. Tucker based her decision on the report of Mr. Floyd.
It is true that Mr. Meyer was not asked to make a recommendation to the School Board. It is also true that Ms. Tucker based her initial recommendation in part on Mr. Floyd's report and that Mr. Floyd did not talk to all of the individuals involved. These facts and others cited by counsel for Mr. Hayward, however, overlook the fact that this is a de novo proceeding. The purpose of the hearing was not to perform a review of the School Board's initial action.
Rather, it was to formulate agency action. See Capeletti Brothers, Inc. v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Szkolny v. State Awards Committee, 395 So.2d 1290 (Fla. 1st DCA 1981); and McDonald v.
Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
Generally, why or how the School Board reached its initial decision in this case (except to the extent that procedural requirements are imposed on the School Board) is not at issue in this proceeding. In order for the initial decision of the School Board to become a final decision, the evidence presented during the hearing of this case, and not the information relied upon by the School Board in reaching its initial decision, must support the action of the School Board.
Therefore, even if the evidence presented in the formal hearing proved that the School Board's initial decision was not supported by competent substantial evidence, it would be proper to recommend that the School Board's initial decision should become a final decision if the evidence presented in the formal hearing supports such a decision. The evidence in this proceeding does support such a decision.
In reaching a decision in this case, although Ms. Tucker relied upon Mr.
Floyd's report in making her recommendation, that report played no part in this proceeding. The report is not part of the record in this proceeding nor was it ever offered into evidence.
Fifthly, it has been argued that the evidence proved that Mr. Hayward is a good driver. Evidence supporting a conclusion that Mr. Hayward is a good driver did not, when weighed with all of the evidence, support a conclusion that Mr. Hayward did not operate his school bus improperly on the occasions at issue in this proceeding.
Sixthly, it has been argued that the evidence concerning crossing the railroad was either uncorroborated or contradicted by the testimony of Mr. Houseman and Mr. Meyer. This argument is not supported by the weight of the evidence. The evidence concerning the two incidents when Mr. Hayward failed to properly stop at the railroad crossing which have been found to have occurred was presented by persons who witnessed the events. Their testimony was credible and does not need to be corroborated.
Additionally, the testimony of Mr. Houseman merely involved isolated observations of Mr. Houseman and Mr. Meyer. Neither witness testified that they observed Mr. Hayward every time that he drove his school bus over the crossing or that they had witnessed the events testified to by Matthew Cramer and Billy Jenkins. The only thing that Mr. Houseman and Mr. Meyer proved is that on the few days that they observed Mr. Hayward at the crossing, he properly crossed the railroad tracks.
Finally, it has been argued that Mr. Hayward was terminated by the School Board "because he was a black man trying to make a difference in the community." The weight of the evidence in this case failed to support this argument. Mr. Hayward's involvement in single-member districting for the School Board and with the N.A.A.C.P. and the effect of that involvement proved very little. The evidence simply failed to prove that School Board members took into account his involvement in efforts to win single-member districting or with the N.A.A.C.P. in deciding to terminate his employment.
The fact that only two written complaints had been filed against white school bus drivers failed to prove that the complaints filed against Mr. Hayward which were taken into account in this proceeding were racially motivated. It can no more be assumed that the complaints against Mr. Hayward were racially motivated than it can be assumed that written complaints were generally not filed against white school bus drivers because they were good drivers. The evidence failed to prove either conclusion.
Finally, Mr. Hayward has failed to prove that the suggestion that black children are not "afforded the opportunity of riding the school bus in Apalachicola" has any significance in this proceeding.
Based upon the foregoing it is concluded that Mr. Hayward's employment by the School Board as a school bus driver should be terminated. The incidents Mr. Hayward has been involved in evidence a failure to give maximum regard for safety and adequate protection of health of students in operating school buses.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a Final Order terminating Mr.
Hayward's employment as a school bus driver for the School Board.
DONE and ENTERED this 18th day of May, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0970
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
See 1.
The first sentence is a summary of testimony and not a proposed finding of fact. See 42 and 45. The last sentence is not relevant to this proceeding. The number of black drivers "currently"
employed is not relevant to this proceeding.
3-4 3.
3, 33 and 41. The fourth sentence is not supported by the weight of the evidence.
Not supported by the weight of the evidence.
Summary of testimony and not proposed findings of fact. See 4, 9, 16 and 19. The weight of the evidence proved that the injury took place on December 4, 1985.
14. The first sentence is not Supported by the weight of the evidence.
9 15-17 and 20.
10-11 Not supported by the weight of the evidence.
5. Matthew Cramer was not good friends with the other three individuals.
Not Supported by the weight of the evidence. See 35-37.
14-17 Not relevant.
Not supported by the weight of the evidence.
43. The evidence failed to prove that a
consent decree was entered as a result of Mr. Hayward's effort.
44. The evidence failed to prove,
however, that the fact contained in the first sentence had any effect on the action taken by the School Board against Mr. Hayward. The last sentence is not Supported by the weight of the
evidence.
Hereby accepted. The second sentence is a conclusion of law.
22-25 These proposed findings of fact are irrelevant or not supported by the weight of the evidence.
Summary of testimony and not a proposed finding of fact. See 34. The last sentence is not supported by the weight of the evidence.
Summary of testimony and not a proposed finding of fact. The first paragraph is not supported by the weight of the evidence. The last paragraph is irrelevant.
Hereby accepted.
29 18.
Irrelevant.
Conclusion of law.
32-33 Not supported by the weight of the evidence.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1, 4-5 and 13. The date of the incident was December 4, 1985 and not December 4 or 5, 1985. The last sentence is not supported by the weight of the evidence.
2 6.
3 5 and 7-8.
4 8 and 9. The evidence failed to prove that medical attention was required.
5 10 and 11.
6 12.
7 7.
8 32.
9 7.
10 15-17.
11 18 and 20.
12 22 and 23.
13 23 and 25.
14 35 and 36.
15 46.
16 33. Mr. Meyer received two complaints about one other driver and not complaints about two other drivers.
17 3, 47 and 48.
18 2.
33, 38 and 40. The last sentence is true but not relevant because the evidence failed to prove why Mr. Hayward was placed on disciplinary probation. The next to the last sentence is not supported by the weight of the evidence.
34. The first paragraph was not supported by the weight of the evidence. The evidence concerning this paragraph was hearsay. The fourth paragraph is irrelevant.
24 and 28. The last sentence is not relevant.
22 28 and 29.
23 Hereby accepted.
COPIES FURNISHED:
Van P. Russell, Esquire Watkins and Russell
41 Commerce Street Apalachicola, Florida 32320
Robert Woolfork, Esquire The Murphy House
317 East Park Avenue Tallahassee, Florida 32301
Gloria Tucker, Superintendent Franklin County School Board
155 Avenue E
Apalachicola, Florida 32320
Martin B. Schapp Administrator
319 West Madison Street Room 3
Tallahassee, Florida 32399
| Issue Date | Proceedings |
|---|---|
| May 18, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 02, 1988 | Agency Final Order | |
| May 18, 1988 | Recommended Order | School board acted reasonably when it dismissed bus driver who had failed to comply with laws governing operation of school buses, endangering students. |
