STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5324

)

LOUISE ROBERTSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on February 8, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Daniel H. Kunkel

Kunkel Miller & Hament

1800 Second Street, Suite 785

Sarasota, Florida 34236

For Respondent: Robert J. Coleman

2300 McGregor Boulevard Post Office Box 2089

Ft. Myers, Florida 33902 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of misconduct in office and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By petition dated August 11, 1993, Petitioner alleged that Respondent, who is a school bus driver, failed to stop at a railroad crossing while transporting students in a bus on April 25, 1993; travelled at an unsafe speed while transporting students in a bus on three days in May 1993; and submitted a charge slip for fuel dated April 25, 1993, which included a bag of chips and a soda purchased by Respondent for her personal consumption. Petitioner later withdrew another allegation involving the unsafe operation of a bus. In the petition, Petitioner seeks the termination of Respondent's employment.

By letter dated August 31, 1993, Respondent demanded a hearing.

At the hearing, Petitioner called four witnesses and offered into evidence no exhibits. Respondent called one witness and offered into evidence three exhibits, which were admitted.

The transcript was filed February 22, 1993. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. During the time in question, Respondent was employed by Petitioner as a school bus driver. She had become a bus driver in October or September, 1991. On August 17, 1993, Petitioner suspended Respondent without pay as a result of the incidents that are the subject of the above-styled proceeding.

   
   

2. On April 25, 1993, while driving an empty school bus to Tampa to pick up students on a field trip, Respondent stopped at a gas station for fuel. Hungry, she found that she had not brought any money with her. She appropriately charged the fuel on the school credit card. But, contrary to Petitioner's policy, she charged a soda and a bag of chips on the same card.

   
   

3. When she returned to Ft. Myers and submitted her charge slip, she forgot to mention the personal items. She did not offer to reimburse Petitioner for the personal charges, which totalled $1.69, until demand was made for this amount.

   
   

4. While returning from Tampa on the same day driving the loaded school bus, Respondent was proceeding west on Tucker Grade Road approaching the intersection with US 41. Failing to notice a marked railroad crossing, Respondent drove the bus over the crossing without stopping, opening the door, and looking and listening for a train, as required to do by Petitioner's policy. A train was in fact approaching, although some distance away.

   
   

5. Evidence offered by Petitioner that Respondent operated her loaded bus at an unsafe speed on three consecutive days in May, 1993, is discredited. Petitioner's sole witness on this matter had repeated clashes with Respondent, for which Petitioner's witness bears at least an equal share of the responsibility. Moreover, Petitioner's witness admitted to changing lanes more than once while operating a loaded school bus to block Respondent's bus from passing when Respondent was trying to service her longer, crosstown route. Petitioner's witness was uncertain as to their relative speeds and only vaguely recalled the incidents allegedly taking place in May.

   
   

6. On March 26, 1993, Respondent received an evaluation for the 1992-93 school year. The evaluation indicated that she had reached an "effective" level of performance for a wide variety of responsibilities. This is the lower of the two possible marks that are satisfactory. Two other marks are available to designate unsatisfactory performance; the better of these is that the task is "inconsistently practiced."

   
   

7. Respondent's evaluation during the 1991-92 school year was about the same, although she received "inconsistently practiced" for attitude and appearance (the latter for failing to wear her uniform).

8. During the 1991-92 school year, Respondent received two evaluations. The first was dated November 15, 1991. She received "inconsistently practiced" for adhering to driving laws and for a safe driving record. The notes mention a "preventable accident" on October 11, 1991, and that Respondent had exceeded the speed limit by 10 miles per hour at one location at an unspecified time. The remaining marks were "effective."

   
   

9. Another evaluation for the 1991-92 school year, which was dated December 13, 1991, contained all "effective" marks.

   
   

10. The charging of a bag of chips and soda has already received more attention than the act and omission merit.

    
    

11. Failing to stop, look, and listen for a train, while operating a loaded school bus, is a very serious offense. Failing even to notice the crossing is not a defense; rather, such an admission raises a question of Respondent's fitness as a school bus driver.

    
    

12. This seriousness of this offense is aggravated by Respondent's record. In a brief career operating a school bus for Petitioner, Respondent has already been involved in a "preventable accident" and has been detected operating her bus at an excess speed.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

14. Section 7.094 of the contract between Petitioner and Respondent provides: "Any discipline during the contract year, including reprimand, suspension, demotion or termination[,] shall be for just cause."

    
    

15. Petitioner has proved that Respondent drove through a marked railroad crossing without stopping, looking, and listening--without even noticing the crossing. The gravity of the offense is magnified by Respondent's record.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Lee County School Board enter a final order terminating Respondent's employment contract.

ENTERED on March 15, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on March 15, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance.

4-5: rejected as unnecessary.

6: adopted or adopted in substance. 7-8: rejected as subordinate.

9-14: adopted or adopted in substance. 15-16: rejected as subordinate.

17: rejected as repetitious. 18: rejected as unnecessary.

19-20: rejected as subordinate.

21-22: adopted or adopted in substance.

23-26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as irrelevant.

Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance.

3: rejected as unsupported by the appropriate weight of the evidence.

4-5: adopted or adopted in substance. 6-7: rejected as unnecessary.

8-10: adopted or adopted in substance.

11-12: rejected as subordinate and irrelevant. 13: rejected as irrelevant.

14-15: adopted or adopted in substance. 16-18: rejected as subordinate.

19: adopted or adopted in substance. 20: rejected as unnecessary.

COPIES FURNISHED:

Acting Superintendent Lee County School Board 2055 Central Ave.

Ft. Myers, FL 33901-3916

Hon. Douglas L. "Tim" Jamerson Commissioner of Education

The Capitol

Tallahassee, FL 32399-0400

Daniel H. Kunkel Kunkel Miller & Hament

Suite 785, 1800 Second St.

Sarasota, FL 34236

Robert J. Coleman 2300 McGregor Blvd.

P.O. Box 2089

Ft. Myers, FL 33902

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.

Docket for Case No: 93-005324

Orders for Case No: 93-005324