STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

v. ) CASE NO. 90-5886

)

PHILIP BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 14, 1990, in St. Augustine, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Michael K. Grogan Timothy B. Strong

Attorneys at Law 2065 Herschel Street

Post Office Box 40089 Jacksonville, FL 32203

For Respondent: Thomas W. Brooks Attorney at Law

Post Office Box 1547 Tallahassee, FL 32302

STATEMENT OF ISSUES

The issue is whether Philip Brown should be dismissed from his position as a school bus driver for the St. Johns County School Board for the reasons stated in the Formal Petition of Charges.

PRELIMINARY STATEMENT

This case and a related case, DOAH No. 90-5887, were heard in the same hearing to avoid duplication of testimony; however, separate Recommended Orders are to be entered in each case. The transcript of the combined hearing was filed on January 28, 1991. The parties' proposed findings of fact and conclusions of law were filed on February 8, 1991. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Philip Brown was employed as a school bus driver by the School Board of St. Johns County in July 1989.

2. On August 27, 1990, the first day of the school year, Mr. Brown experienced difficulty with students assigned to his bus at Ketterlinus Middle School. Students were throwing paper, sitting in the aisles, drinking beverages on the bus, and making racial slurs at Brown. One student was removed from the bus and another had to be removed temporarily for discussion with Assistant Principal Ron Russell.

3. After getting the students sufficiently calmed down to begin transporting them home, Brown left Ketterlinus and began his route. The students resumed misbehaving during the trip, throwing paper and yelling loudly at each other. After approximately ten minutes, Brown determined that the students were sufficiently disruptive to warrant returning them to the school, so he turned

   the bus around and called in to the transportation office to inform the dispatcher that he was returning to school because the students were rowdy.

4. Debra Sapp, the School Board's Route Specialist, answered the radio when Brown called in and responded "okay" when Brown told her he was returning to Ketterlinus. It took approximately six or seven minutes for Brown to reach Ketterlinus after speaking with Ms. Sapp.

5. At Ketterlinus Brown stopped the bus and ordered the students off the bus.

6. A female student on the bus, who had not been disruptive, asked Brown how the students were to get home, and Brown responded that he did not care how they got home.

7. Brown immediately left the school. The students had no adult supervision and Brown had not made any effort to ensure that the students had adult supervision.

8. A short time after the School Board Route Specialist Sapp received the call from Brown advising that he was returning to the school, Sapp received a call from Assistant Principal Russell, who said that the bus had just dropped the students off and left the school.

9. Ms. Sapp called Brown on the radio and told him that he had to go back to the school and get the students, that he could not leave the students, and that Mr. Russell was there to handle any disciplinary problems.

10. Brown responded to Ms. Sapp and stated that he would not return to the school and that he refused to transport the students.

11. Ms. Sapp then instructed Brown to bring the bus back to the Transportation Department compound and that someone else would complete his routes. Brown complied with this instruction.

12. St. Johns County School Board Rule 6Gx 55-8.06 provides: Responsibilities of School Bus Driver

    
    

    It shall be the responsibility of the school bus driver under the regulations of the School Board to perform all duties as follows:

    
    

    * * *

    
    

    (3) Transported pupils

    
    

    * * *

    
    

    To maintain order and discipline, under the direction of the principal, on the part of any pupil passenger.

    To permit a child to leave the bus only at a regular stop except upon written request of the parent or guardian or at the direction of the principal.

    
    

    * * *

    
    

    (11) Relationship to other personnel

    
    

    * * *

    
    

    (c) Pupils

    The bus driver shall be responsible for the safety of the pupils

    on his bus and shall be constantly on the alert for any condition that would endanger their safety.

    The bus driver shall assume a responsibility for the control of pupils as delegated to him by the principal. He may not:

    
    

    * * *

    Put a child off the bus at any other than the regular stop except

    upon written permission of the parent or the principal, provided, that should an emergency develop due to the conduct of pupils on the bus, the bus driver may take such steps as are reasonably necessary to protect the pupils on the bus.

13. The primary emphasis of the School Board's policy on transportation of students is ensuring the safety of the students.

14. The primary responsibility of the school bus driver is to ensure the safety of everyone on the bus.

15. During his employment with the School Board, Brown received training on safety and proper procedures as required by the Department of Education.

16. Ida Bowman, the School Board's Safety Training Specialist, trains the school bus drivers and is responsible for conducting the training that is required by the Department of Education.

17. During the training that is conducted by Ms. Bowman, drivers are told the procedure to be followed in a situation in which they return to the school because of disruptive students.

18. During the training that is provided by Ms. Bowman, drivers are told that if they return to the school with disruptive students and there is nobody there waiting for them, they are to contact the Transportation Department again and the Transportation staff will arrange to have someone meet the bus.

19. During the training sessions that are conducted by Ms. Bowman, drivers are told that the students are the drivers' responsibility from the time that they get on the bus until they are safely delivered home and that drivers are not to leave the students unattended.

20. Brown attended the classes in which Ms. Bowman discussed the above procedures to be followed when returning students to the school.

21. Dwaine Fisher, the School Board's Director of Transportation, received complaints prior to November 27, 1990, concerning Brown's failure to follow School Board procedures and complete his duties as a bus driver.

22. Fisher had received three previous complaints about Brown's failure to follow School Board procedure concerning transportation of students.

23. Brown had been reprimanded in the past for leaving students because his actions affected the safety of the students since there was no one there to supervise the students.

24. Fisher had instructed Brown that when he returned students to the school because of discipline problems, he was to get with an administrator when he got back to the school.

25. From his previous experience, Brown knew that it was improper to drop students off at school if there was no adult supervision.

26. The duties of Ms. Sapp, the School Board's Route Specialist, include setting up routes, handling any problems that come up with the routes or the drivers, giving the drivers instructions on new stops and changes to their routes, talking to the public concerning routes, and instructing drivers on various routes to take.

27. The Route Specialist has the authority to direct drivers where to go.

28. The School Board's Director of Transportation does not have to confirm instructions given to drivers by Ms. Sapp.

29. Ms. Sapp, as the Route Specialist, had the authority to tell Brown to return to the school to transport the students.

30. Brown's refusal to comply with Sapp's instruction to return to the school was viewed as insubordination by the School Board's Department of Transportation.

31. During a meeting held on August 28, 1990 in the office of Robert Braden, the School Board's Director of Human Resources and Management Training, which meeting was attended by Mr. Braden, Mr. Brown, Mr. Fisher, Assistant Superintendent of Operations David Toner, and Union Representative Claudia Brunke, Brown admitted that he dropped the students off without adult

    supervision, left the school, and refused to return to the school when directed to do so by Ms. Sapp.

32. If the situation that took place on August 27, 1990, occurred again, Brown acknowledged that he would not comply with a directive of the Route Specialist unless formally approved by the Director of Transportation.

33. Messrs. Toner, Braden, and Fisher recommended to the Superintendent that Brown be dismissed because on August 27, 1990, he left the students at Ketterlinus Middle School unattended, refused to wait for an administrator at the school, and refused to follow direct orders from the Route Specialist to go back and transport the students.

34. No other driver for St. Johns County School Board has engaged in conduct similar to the conduct in which Brown engaged on August 27, 1990.

35. Based upon Brown's actions, the Superintendent suspended the Respondent and recommended his termination.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

The burden of proof in proceedings such as these requires that the School Board prove its allegations by a preponderance of the competent, substantial evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); Dileo

v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).

Brown is charged with misconduct in office, gross insubordination, willful neglect of duty, endangering the safety of students, failure to comply with School Board procedure concerning transporting of students, and requiring students of disembark without completing the assigned route. See the Formal Petition of Charges, paragraph #8.

The conduct of noninstructional employees is measured against the same standards as instructional employees in regard to allegations of misconduct and gross insubordination or willful neglect of duty. Rutan v. Pasco County School Board,

435 So. 2d 399 (Fla. 2d DCA 1983); Smith v. School Board of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981). Further, the Smith court permitted an exception to this standard when it said

If the Board wishes to articulate policy which sets different standards of conduct for its administrative employees than for its instructional personnel, it is not precluded from doing so as long as there is a record foundation in support of that policy.

Smith, supra at 185.

The School Board has not articulated policy which sets different standards for allegations of gross insubordination, but it has clearly done so as these terms are applied to school bus drivers in regard to misconduct, willful neglect of duty, endangering the safety of students, failure to comply with School Board procedure concerning transporting of students, and requiring students to disembark without completing the assigned route.

The School Board has clearly articulated by Rule 6Gx 55-8.06 the standards of conduct to be applied to school bus drivers. Brown received thorough training in the procedures he was to follow to ensure compliance with these policies and standards. Despite the articulated policies and procedures, Brown failed to conform his conduct to them. Specifically, he violated the policies by failing to act responsibly for the safety of the pupils on his bus. He failed to follow procedures for transporting students and he required the students to leave the bus without completing his assigned route and without the immediate supervision of an appropriate adult. These actions specifically violate Rule 6Gx 55- 8.06(11)(c)1 and 2c.

Further, these rules supplement the rule definition of misconduct in office as established for teachers in Rule 6B-4009(3), Florida Administrative Code.

Violation of the rules, policies, and procedures of the School Board constitutes

misconduct by a noninstructional employee. Additionally, the concept of "willful neglect of duty" is further articulated by the School Board where, as here, it has established specific duties by rule and policy and it has clearly articulated the expected scope of duties to the noninstructional employee.

Brown knew what was expected of him and he knowingly failed to carry out his duties as they related to the incident in question. Brown is guilty of misconduct and willful neglect of duty under the facts and law of this case. There is no record foundation for application of a different standard for consideration of gross insubordination. Rule 6B-4.009(4), Florida Administrative Code, defines "gross insubordination" to be "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." It is concluded that Ms. Sapp's order to Brown to return to the school and transport the students was reasonable in nature. Ms. Sapp has the proper authority to give that order. Brown refused the order. However, his refusal was not constant or continuing. It is concluded that Brown is not guilty of gross insubordination.

Brown's reprimands during the preceding school year constitute aggravating factors which are also considered in the recommendation made herein.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Johns County enter a Final Order terminating Philip Brown from his employment as a school bus driver.

DONE and ENTERED this day of February, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

day of February, 1991.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Copies furnished: (See next page)

Copies furnished to:

Michael K. Grogan Timothy B. Strong Attorneys at Law 2065 Herschel Street

Post Office Box 40089 Jacksonville, FL 32203

Thomas W. Brooks Attorney at Law

Post Office Box 1547 Tallahassee, FL 32302

Otis A. Mason, Superintendent St. Johns County School Board

40 Orange Street

St. Augustine, FL 32084

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Case No. 90-5886

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5886

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact

Submitted by Petitioner, School Board of St. Johns County

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4-15(12-23); 17(24); 18(25); 25-30(6-11); and 31-40(26-35).

   
   

2. Proposed findings of fact 19-24 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 1, 2 and 16 are unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Philip Brown

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3-5(2-4).

2. Proposed findings of fact 2, 6-9, and 14-17 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 10, 11, and 18-21 are irrelevant.

   
   

4. Proposed findings of fact 12 and 13 are unsupported by the competent, substantial evidence.

Docket for Case No: 90-005886

Orders for Case No: 90-005886