STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4679

)

JEAN GAILLARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 19, 1994, in West Palm Beach, Florida, before Suzanne F. Hood, duly-designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lee M. Rosenberg, Esquire

Palm Beach County School Board Office of General Counsel

3318 Forest Hill Boulevard

West Palm Beach, Floirda 33406

For Respondent: Wanda L. Stimpson, Business Agent

Fireman & Oilers Local 1227 Post Office Box 449

Boynton Beach, Floirda 33435 STATEMENT OF THE ISSUE

The issue presented is whether Respondent Jean Gaillard should be suspended without pay and/or terminated from employment with the Palm Beach County School Board for misconduct in office and willful neglect of duty by failing to follow proper procedures while operating a school bus at a railroad crossing.

PRELIMINARY STATEMENT

By letter dated June 27, 1994, the Palm Beach County Superintendent of Schools notified Respondent, Jean Gaillard (Respondent), of a finding of probable cause to immediately suspend him with pay from employment as a school bus driver. This letter also informed Respondent of the Superintendent's intent to recommend on July 20, 1994, that the Palm Beach County School Board (Petitioner) suspend Respondent without pay and/or dismiss him from employment. The Superintendent charged Respondent with misconduct in office and willful neglect of duty by failing to follow proper procedures while operating a school bus at a railroad crossing.

By letter dated July 11, 1994, Respondent requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether Petitioner should be suspended without pay and/or terminated from his employment.

On July 20, 1994, Petitioner gave Respondent an opportunity to respond to the charges against him. Subsequently, Petitioner voted to suspend Respondent without pay and to dismiss him from employment.

On October 19, 1994, a formal hearing was held in West Palm Beach, Florida.

Pursuant to Rule 60Q-2.008, Florida Administrative Code, the undersigned determined that Respondent's business agent, Wanda Stimpson, was qualified to represent Respondent. Official recognition was taken of relevant portions of Chapters 230, 234, and 316, Florida Statutes.

Petitioner presented the testimony of: (1) James F. Matheson; (2) Dawn Owen; (3) Bonnie Gordon; (4) Marvin Waxberg; and (5) Robert Riley. Petitioner also presented five exhibits all of which were accepted into evidence without objection. Respondent testified on his own behalf and presented the testimony of one witness, Ethleen Page. Respondent did not present any exhibits as evidence.

The transcript of the hearing was filed with the Division of Administrative Hearings on November 9, 1994. Petitioner filed proposed findings of fact and conclusions of law on November 18, 1994. To date, Respondent has not filed a proposed recommended order. Specific rulings on Petitioner's proposed findings of fact are contained in the Appendix attached hereto.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are made:

1. At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract.

   
   

2. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4).

   
   

3. Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227.

   
   

4. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit.

   
   

5. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track.

   
   

6. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus.

   It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed.

   
   

7. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday.

   
   

8. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard.

   
   

9. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train.

   
   

10. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces.

    
    

11. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip.

    
    

12. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department.

    
    

13. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes.

    
    

14. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so.

    
    

15. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses.

    
    

16. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

18. Petitioner has the burden of proving, by a preponderance of the evidence, that cause exists to terminate Respondent's employment. 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).

    
    

19. Section 316.1575, Florida Statutes, provides in pertinent part as follows:

    
    

    1. Any person walking or driving a vehicle and approaching a railroad-highway grade crossing under any of the circumstances stated in this section shall stop within 50 feet but not less than 15 feet from the nearest rail of such rail- road and shall not proceed until he can do so safely. The foregoing requirements apply when:

       1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;

       2. A crossing gate is lowered or a human flagman gives or continues to give a signal of the approach of passage of a railroad train;

          * * *

    2. No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad-highway grade crossing while the gate

       or barrier is closed or is being opened or closed.

       
       

       Section 316.1575, Florida Statues.

       
       

20. Pursuant to Section 232.28, Florida Statutes, school bus drivers have the necessary authority to control pupils and must exercise that authority to preserve order and good behavior on the bus.

    
    

21. The Florida School Bus Drivers Handbook provides procedures for school bus drivers at railroad crossings. Florida School Bus Drivers Handbook, revised 1990, prepared by FAPT Training Committee in cooperation with Florida Department of Education, Suite 824-D, Florida Education Center, Tallahassee, Florida, p.

    16-17. Generally, the driver must stop within the statutorily required distance from the nearest rail, shift into neutral, open the door and driver's window, and "listen and look in both directions along the tracks for approaching trains." Id., at 16. If lights are flashing at the crossing, the driver must not cross the tracks unless directed to do so by a law enforcement officer.

    Id., at 16. If the crossing has a crossing gate, the driver should not proceed while it is "closed or being opened or closed." Id., at 17. In the latter circumstances, "[t]he driver must never interpret a lack of movement as an indication that the device is either in or out or (sic) order; but must always assume that crossing is dangerous, and must not cross tracks until he has conclusively ascertained that no train is coming." Id., 17. The driver has the ultimate responsibility to insure that the passengers are quiet until the bus crosses the tracks. Id., 17.

    
    

22. Petitioner has proved by a preponderance of the evidence that Respondent violated Sections 232.23 and 316.1575, Florida Statutes, and the procedures set forth in the Florida School Bus Drivers Handbook by: (a) failing to open the school bus door after stopping at the crossing; (b) proceeding across the railroad-highway grade crossing while the signal lights were flashing and the crossing gate was descending; (c) failing to ensure that the students

    were quiet before crossing the tracks; and (d) proceeding across the railroad- highway grade crossing before it was safe to do so.

    
    

23. Respondent testified that he opened the bus door before proceeding to cross the tracks. He also claimed that the signal lights were not flashing and the crossing gate was not descending as he started across. He stated that he attempted to quiet the children. He and his witness, a former school bus driver and current union steward, testified that it was impossible to see down the track unless the bus stopped close enough to the rails for the gate to descend on the bus. The testimony of Respondent or his witness concerning these facts is not persuasive because it is contrary to more compelling eyewitness testimony.

    
    

24. One of Petitioner's primary responsibilities is to ensure the safety and protection of the public "in routing buses, appointing drivers, and providing and operating equipment." Section 234.02, Florida Statutes.

    
    

25. Petitioner must also consider whether a school bus driver is "mentally alert and able to handle a bus with ease." Section 234.091, Florida Statutes.

    
    

26. Petitioner is obligated to adopt rules and regulations for the safe operation of school buses. Section 230.23(8), Florida Statutes.

    
    

27. Petitioner's local rule 2.404 (Exhibit P3) requires school bus drivers, operating school buses on field trips, to follow state laws and local school board regulations concerning safety and the behavior of students.

    
    

28. Petitioner has proved by a preponderance of the evidence that Respondent violated the laws and school board policy set forth above. Therefore, Petitioner has cause to suspend Respondent without pay and to terminate his employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing.

RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida.

SUZANNE F. HOOD, Hearing Officer Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994.

APPENDIX TO RECOMMENDED ORDER 94-4679

The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts.

Petitioner's Proposed Findings of Fact

1. Accepted in substance but modified in Finding of Fact (FOF) Number 1.

2. Accepted in FOF Number 2.

3. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure.

4. Accepted in substance in FOF Number 5.

5. Accepted in FOF Number 6.

6. Accepted in FOF Number 6.

7. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence.

8. Accepted in FOF Number 12.

9. Accepted in FOF Number 12.

10. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27.

11. Accepted in FOF Number 2.

12. Accepted in FOF Number 15-16.

Respondent's Proposed Findings of Fact

Respondent did not file proposed findings of fact.

COPIES FURNISHED:

Lee M. Rosenberg, Esquire

Palm Beach County School District 3318 Forest Hill Boulevard

West Palm Beach, FL 33406-5813

Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449

Boynton Beach, FL 33435

Dr. Monica Uhlhorn Superintendant of Palm Beach

County School District 3318 Forest Hill Boulevard

West Palm Beach, FL 33406-5813

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: 94-004679

Orders for Case No: 94-004679