STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

JOSEPH SIMMONS,

Respondent.

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) Case No. 03-1498

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 26, 2003, in Fort Myers, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, Jr., Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33916 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.

PRELIMINARY STATEMENT

On March 25, 2003, the Lee County School Board (School Board) served a Petition for Termination (Petition) on Respondent, through which it sought to terminate Respondent's employment as a school bus driver. By letter dated April 4, 2003, Respondent timely contested the charges against him and requested a hearing. On April 28, 2003, the School Board referred the matter to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing requested by Petitioner.

On May 12, 2003, the School Board filed a motion to amend its Petition. That motion was granted by Order dated May 21, 2003.

On June 25, 2003, the School Board filed a motion to proceed on the original Petition. That motion was treated as a motion to amend the Amended Petition, and was granted on the record at the outset of the hearing.

The hearing was held on June 26, 2003. At the hearing, the School Board presented the testimony of Joe Howard, a supervisor in the School Board's transportation department and Respondent's direct supervisor; and Georgianna McDaniel, the School Board's director of human resources. The School Board's Exhibits 1 through 5, 7, 8, and 12 through 15, were received into evidence.

Respondent did not appear at the hearing and therefore did not present the testimony of any witnesses or introduce any exhibits.

Official recognition was taken of Section 1012.67, Florida Statutes (2002). Official recognition was also taken of the docket sheet in State of Florida v. Joseph Simmons, Case No. 03- 375CF in the Circuit Court in and for Lee County pursuant to Section 90.202(6), Florida Statutes.

No Transcript of the hearing was filed with the Division.

In accordance with Rule 28-106.216, Florida Administrative Code, the parties were given ten days from the date of the hearing to file their proposed recommended orders (PROs). Respondent did not file a PRO. The School Board's PRO was timely-filed and was given due consideration by the undersigned in preparing this

Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made:

1. The School Board is the governing body of the local school district in and for Lee County, Florida.

2. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000.

3. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement").

4. On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives.

5. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail.

6. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter.

7. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case.

8. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County.

9. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony.

10. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003.

11. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges.

12. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver.

    Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law.

    Mr. Howard considers compliance with the law to be a paramount duty of a bus driver.

13. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances

    surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent.

14. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her.

15. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest.

16. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail.

17. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing.

18. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest.

19. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding.

20. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.

    CONCLUSIONS OF LAW

    
    

21. The Division has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.40(2)(c), Florida Statutes. (All references to Sections and Chapters are to the 2002 compilation of the Florida Statutes.1 All references to Rules are to the current version of the Florida Administrative Code.)

22. The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board,

    678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

    
    

    School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen

    
    

    v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

23. Section 1012.40(2)(b) provides that educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."

24. The SPALC Agreement provides that "[a]ny absence from duty without leave may subject the employee to termination or other appropriate discipline." SPALC Agreement, at Section

    9.011. Accord Section 1012.67 ("Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the district school board.").

25. The School Board met its burden to prove that Respondent was absent without leave starting on January 27, 2003. In view of the fact that Respondent's absence was the result of his arrest and subsequent imprisonment for serious crimes, termination is the appropriate remedy. See Miami-Dade County School Board v. Holmes, DOAH Case No. 02-2820, 2002 WL 31780251 (Dec. 10, 2002) (recommending termination of a school board employee who was absent without leave as a result of her

    incarceration); Stokes v. Choice, DOAH Case No. 89-2022, 1990 WL 749365, at *5 (Jan. 2, 1990) (rejecting school board employee's argument that his incarceration was not "willful" and therefore not a violation of the predecessor to Section 1012.67 because the employee "willed the series of acts which set in motion the chain of events which eventually resulted in his incarceration").

26. The SPALC Agreement further provides that "[a]ny discipline . . . shall be for just cause." SPALC Agreement, at Section 7.094. This provision is a separate and distinct basis for discipline than Section 9.011 of the SPALC Agreement relating to absence without approved leave.

27. The School Board construes "just cause" in Section 7.094 of the SPALC Agreement in the same manner as

    that phrase is used in Section 1012.33 relating to instructional staff. That statute provides in pertinent part that:

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

    Section 1012.33(1)(a). See also Rule 6B-4.009 (defining the terms used in Section 1012.33(1)(a)).

28. In light of the determination above that the School Board can terminate Respondent under Section 9.011 of the SPALC

Agreement based upon his absence without approved leave, it is not necessary to determine whether the School Board can also terminate Respondent for "just cause" under Section 7.094 of the SPALC Agreement based upon the fact that he was arrested for several felonies.2

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment.

DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.

ENDNOTES

1/ The events giving rise to this proceeding occurred after January 1, 2003, which was the effective date of the substantial reorganization of the Education Code enacted through Chapter 2002-387, Laws of Florida. The 2002 compilation of the Florida Statutes includes the reorganized Education Code in Chapters 1000 through 1013.

2/ The events surrounding Respondent's arrest were not proven at the hearing. Although the arrest report/probable cause affidavit was received as part of the School Board's investigative file (Exhibit 1, at 11-16), the statements and details in the report/affidavit regarding Respondent's conduct are hearsay to the extent they are being offered for their truth, which they clearly are. See Reichenberg v. Davis, 2003 WL 21297232, at *1 (Fla. 5th DCA June 6, 2003); Harris v. Game & Fresh Water Fish Comm'n, 495 So. 2d 806, 808-09 (Fla. 1st DCA 1986). Because those hearsay statements were not corroborated by other testimony or evidence (such as the testimony of the arresting officer or Respondent's girlfriend), they cannot serve as a basis for a finding of fact. See Sections 120.569(2)(g) and 120.57(1)(c). Indeed, Respondent's statements at the pre- determination conference (Exhibit 3, at 21), which would qualify under the admission or statement against interest exceptions to the hearsay rule, contradict the details in the arrest report/probable cause affidavit. As a result, any "just cause"- based discipline under Section 7.094 of the SPALC Agreement would have to be based upon the mere fact that Respondent was arrested for several felonies. In light of Mr. Howard's serious concerns regarding Respondent's continued effectiveness as a bus driver because of his arrest, the arrest alone may be sufficient to constitute "misconduct in office." See Rule 6B-4.009(3) (defining "misconduct in office" as a violation "which is so serious as to impair the individual's effectiveness in the school system"); Rule 6B-1.001(3) (incorporated by reference into Rule 6B-4.009(3), and requiring individual to "strive[] to achieve and sustain the highest degree of ethical conduct" so as to "maintain[] the respect and confidence of one's colleagues, of students, of parents, and of other members of the community"). And cf. Section 1012.45 (requiring school bus drivers to be "of good moral character").

COPIES FURNISHED:

J. Paul Carland, II

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Joseph Simmons

1512 Palmetto Avenue

Fort Myers, Florida 33916

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Honorable Jim Horne, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. John W. Sanders, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3916

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 03-001498

Orders for Case No: 03-001498