STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

ROY B. DENSON,

Respondent.

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) Case No. 06-4995

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 14, 2007, in Fort Myers, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.

PRELIMINARY STATEMENT

On November 9, 2006, James W. Browder, Ed.D., superintendent for the School District of Lee County (School District), issued a Petition for Termination of Employment (Petition) against Respondent, Roy B. Denson (Mr. Denson), recommending to the Lee County School Board (School Board) that Mr. Denson's employment with the School District be terminated for alleged violations of Subsection 1012.33(6)(b), Florida Statutes (2006)1; Florida Administrative Code Rule 6B-4.009(3); and School Board Policies 2.7 and 4.10.

Mr. Denson requested an administrative hearing. On December 5, 2006, the Petition was heard by the School Board, who voted to suspend Mr. Denson without pay pending the outcome of an administrative hearing to be conducted by the Division of Administrative Hearings. The Petition and request for an administrative hearing were forwarded to the Division of Administrative Hearings on December 8, 2006, for assignment of an Administrative Law Judge. The case was originally assigned to Administrative Law Judge R. Bruce McKibben, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

The parties entered into a Joint Pre-hearing Stipulation, stipulating to certain facts contained in Section E of the Joint

Pre-hearing Stipulation. Those facts have been incorporated into this Recommended Order to the extent relevant.

At the final hearing, Petitioner called Erik Craig Baker as its witness. Petitioner's Exhibits 1 through 15 were admitted in evidence. At the final hearing, Mr. Denson testified in his own behalf and called Dale A. Maybin and Brian William Kearney as his witnesses. Respondent's Exhibits 1 through 10 were admitted in evidence.

The one-volume Transcript was filed on February 23, 2006.

The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Mr. Denson first became employed with the School District in May 1992 as a helping teacher at a behavioral school. He was transferred to attending the disciplinary room and remained in that position until 1996, when he resigned to take a position at a juvenile prison. The new job fell through, and he became reemployed with the School District in 1997. He remained employed with the School District until May 30, 2005, when he resigned to work in the private sector as an air- conditioner technician. In April 2006, Mr. Denson became employed with the School District as a bus driver. Pursuant to the Support Personnel Association of Lee County Collective

   Bargaining Agreement (SPALC Agreement), Mr. Denson is an annual contract employee.

2. On or about July 31, 2006, at approximately 1:28 p.m., Mr. Denson was driving school bus number 533 south on

   Southeast 8th Place in Cape Coral, Florida. He was doing a dry run or practice run of the school bus route for which he had bid to make sure that he could make the trip in the time allotted.

   There were no students in the bus. Neither the horn nor the radio on the bus was functional.

3. A maintenance crew was working at a residence located at 3138 Southeast 8th Place in Cape Coral. A black Ford F150 truck with a trailer belonging to the lawn maintenance company was parked on the side of the road, blocking the road. As a result, Mr. Denson could not pass the truck with the school bus he was driving.

4. Erick Baker, one of the lawn maintenance workers, was at the trailer putting up some equipment and putting on a backpack, wand-type weed sprayer containing Ortho Weed-B-Gone, a chemical weed killer. The wand of the sprayer is about two feet long and is activated by pressing a trigger. Mr. Denson signaled with his hands for someone to move the truck.

   Mr. Baker signaled to Mr. Denson, suggesting that he was not the driver and to wait a moment.

5. Mr. Baker began to walk toward the house while spraying weeds. Mr. Denson opened the bus door and yelled that he needed to have the truck moved so he could proceed with his route.

   Mr. Baker continued to spray the weeds. Mr. Baker may have not heard Mr. Denson because one worker was operating a leaf blower and another was operating a riding lawn mower. Mr. Denson then exited the bus and approached Mr. Baker, who had his back to Mr. Denson.

6. Mr. Baker, with the sprayer wand in his hand, turned toward Mr. Denson. The wand was pointed in the direction of Mr. Denson's face, approximately six to 12 inches away from Mr. Denson's eyes and mouth. Mr. Denson felt threatened, knocked the sprayer away, and struck Mr. Baker in the head. Mr. Baker never sprayed Mr. Denson with the chemicals in the sprayer.

7. Mr. Denson claims that he struck Mr. Baker in self- defense, stating that when Mr. Baker turned around, Mr. Denson told him he needed to get the sprayer out of his face and that Mr. Baker replied that he would "spray Mr. Denson's ass."

   Mr. Baker denies saying that he would spray Mr. Denson. Mr. Baker's testimony is more credible.

8. The two men fell to the ground with Mr. Denson on top of Mr. Baker. Mr. Denson hit Mr. Baker in the forehead again.

   Mr. Baker never struck Mr. Denson. Another worker with the maintenance crew grabbed Mr. Denson and pulled him off

   Mr. Baker. Mr. Denson returned to his bus and used his cell telephone to contact the Transportation West Zone Office of the School District to report the incident. Mr. Baker called the police to report the incident. After the altercation, Mr. Baker told Mr. Denson that he should have sprayed Mr. Denson.

9. Officer B. W. Kearney of the Cape Coral Police Department was dispatched to the scene. Officer Kearney completed an Incident/Investigation Report, indicating that he was dispatched to a battery. In the report, Officer Kearney stated that Mr. Denson admitted punching Mr. Baker; however, Mr. Denson felt he acted in self-defense. Officer Kearney noted that Mr. Baker had no visible injuries and declined medical attention. Mr. Baker did not press charges, and Mr. Denson was not arrested.

10. In response to Mr. Denson's call, Dale Maybin, assistant supervisor of the Transportation West Office, reported to the scene of the incident where he spoke with Officer Kearney. Mr. Maybin later submitted an Investigation Request form along with a written statement to the Department of Professional Standards and Equity.

11. Mr. Denson was informed via certified letter dated August 7, 2006, from the superintendent that he was being

    suspended with pay pending the outcome of the School District's investigation into the matter.

12. In accordance with Section 7.09 of the SPALC Agreement, a predetermination conference was scheduled with Mr. Denson for October 26, 2006, to review the allegations and to give Mr. Denson an opportunity to respond. Mr. Denson was

    advised of the conference via certified letter dated October 11, 2006, from Dr. Gregory K. Adkins, executive director of Human Resources and Employee Relations. The letter included a copy of the School District's investigative file.

13. The predetermination conference took place as scheduled and was attended by Mr. Denson and Suzan Rudd, Island Coast FEA Service Unit director. Mr. Denson and Ms. Rudd were given an opportunity to address the allegations.

14. Subsequent to the predetermination conference, a determination was made that probable cause existed to discipline Mr. Denson for his conduct. A certified letter dated

    October 30, 2006, was sent to Mr. Denson, advising him of the probable cause determination. The letter also advised that a recommendation would be made to the superintendent that

    Mr. Denson be terminated from his employment with the School District.

15. By letter dated November 8, 2006, Robert J. Coleman, Esquire, advised the School Board's attorney that he had been retained to represent Mr. Denson.

16. A Petition for Termination of Employment (Petition) was prepared, and a copy was forwarded to Mr. Denson's attorney on November 9, 2006. The Petition advised that the matter of Mr. Denson's termination was scheduled to be heard by the School Board on December 5, 2006.

17. On November 13, 2006, Mr. Denson's attorney forwarded a letter to the School Board's attorney requesting a formal administrative hearing regarding the matter of Mr. Denson's termination.

18. On December 5, 2006, the Petition was heard by the School Board. At that time, Mr. Denson was suspended without pay pending the outcome of a hearing to be conducted by the Division of Administrative Hearings.

19. The School Board has a "zero" tolerance policy for threats of violence made by staff of the School District as set forth in Policy 2.71. The School Board has also adopted Policy 4.10, requiring employees of the School District to be in compliance with state and federal laws and with certain ethical standards. School District Administrative Regulation 2.61(1) provides:

    All employees are expected to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students. All employees are expected to meet the specific standards as described in the Employee Handbook(s), negotiated contracts, the Principles of Professional Conduct for the Education Profession in Florida as described by State Board of Education Rule, and all local State and federal laws.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57, and 1012.33(6)(a), Fla. Stat.

21. Mr. Denson is a school bus driver and is considered to be an "educational support employee," as that term is defined in Subsection 1012.40(1)(a), Florida Statutes. The superintendent of the School District has the authority to recommend to the School Board that an educational support employee be suspended and/or dismissed from employment. § 1012.27, Fla. Stat. The School Board has the authority to terminate and/or suspend without pay educational support employees. §§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.

22. An educational support employee can be terminated only for the reasons set forth in the collective bargaining agreement which governs such an employee. § 1012.40(2)(b), Fla. Stat. The SPALC Agreement is the collective bargaining agreement governing Mr. Denson's employment with the School District.

    Section 7.09 of the SPALC Agreement provides that "[a]ny discipline during the contract year, that constitutes a reprimand, suspension, demotion, or termination shall be for just cause."

23. The SPALC Agreement does not define the term "just cause" nor does it provide for a progressive discipline plan. The School Board has construed just cause for purposes of discipline pursuant to the SPALC Agreement in the same manner as that phrase is used in Section 1012.33, Florida Statutes, relating to instructional staff. Subsection 1012.33(1)(a), Florida Statutes, provides: "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." See Lee County School Board v. Simmons, Case No. 03-1498 (DOAH July 15, 2003) (adopted in toto by Final Order dated August 12, 2003). See also Lee County School Board v. Kehn, Case No. 04-1912 (DOAH February 21, 2005) (adopted in toto by Final Order dated March 10, 2005).

24. Florida Administrative Code Rule 6B-4.009(3) defines "misconduct in office" as a violation of the Code of Ethics and of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida, which is so serious as to impair the individual's effectiveness in the

    school system. Florida Administrative Code Rule 6B-1.001 required Mr. Denson to seek to use his best professional judgment and integrity and to strive to achieve and sustain the highest degree of ethical conduct.

25. The School Board has alleged that Mr. Denson is guilty of misconduct in office by committing battery on an individual by striking him in the head and has the burden of establishing that allegation by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996).

26. The School Board has established by a preponderance of the evidence that Mr. Denson did commit a battery on Mr. Baker and that the battery was not committed in self-defense. Even if Mr. Denson had established that his first swing at Mr. Baker was committed in self-defense, his self-defense theory disappeared when he continued to strike Mr. Baker while he was down and the sprayer wand had been knocked away. Mr. Denson's actions are in violation of School Board Policy 2.71, which prohibits threats of violence. His actions are also in violation of School Board Policy 4.10, which requires Mr. Denson to be in compliance with state laws, and School District Administrative Regulation 2.61, which requires Mr. Denson to exemplify conduct that is lawful and professional.

27. The School Board has established by a preponderance of the evidence that the commission of the battery by Mr. Denson

constituted just cause for his dismissal from employment with the School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that just cause exists for termination of the employment of Mr. Denson and dismissing Mr. Denson from his employment as a school bus operator with the School District.

DONE AND ENTERED this 18th day of April, 2007, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 18th day of April, 2007.

ENDNOTE

1/ All references to the Florida Statutes are to the 2006 version.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

Robert Dodig, Jr., Esquire School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901

Dr. James Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3988

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

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: 06-004995

Orders for Case No: 06-004995