4140(A)(21), "Conduct unbecoming a board employee that brings the district disrepute or disrupts the orderly processes of the District"; and (3) 4140(A)(23), "Failure to comply with Board Policy, State law, or appropriate contractual agreement."
By letter dated February 3, 2010, the Pinellas County superintendent of schools advised Respondent of her recommendation that Petitioner terminate Respondent's employment as a bus driver. Respondent requested a hearing, pursuant to Chapter 120, Florida Statutes (2009),1 to challenge the termination of her employment. The matter was referred to the Division of Administrative Hearings (DOAH) on March 17, 2010, for the assignment of an Administrative Law Judge (ALJ) to conduct the hearing requested by Respondent.
Following discovery, the final hearing was held on July 20, 2010. At the hearing, Talmage Andrews was recognized as Respondent's qualified representative. Petitioner presented the testimony of three witnesses: Jacqueline Jackson-Lee (Respondent), Terry Knipp, and Valencia Walker. Petitioner's Exhibits 1 through 3, 4(d), (e), (f) and (g); 5 through 11 and Exhibit 4(a) through (c) were admitted for the purpose of determining an appropriate penalty, if any. Respondent did not call any additional witnesses. Respondent's proffered exhibits were not admitted into evidence. Following the hearing,
Petitioner was granted an opportunity to file an affidavit from a records custodian to rebut allegations made by Respondent at the hearing. On August 2, 2010, the Affidavit of Brian K. Lowe was filed, attesting to the absence of records relating to any malfunction in the Child Reminder System on Respondent's bus.
Respondent was provided the opportunity to file a written motion, within five working days, seeking to cross-examine the witness signing the Affidavit via telephone testimony. No motion was filed.
The Transcript of the final hearing was filed on August 4, 2010. The parties were given until August 20, 2010, to file proposed recommended orders. Petitioner's Proposed Recommended Order was filed on August 20, 2010. Respondent's proposal was filed under the name of Richard Brandt, who was not qualified as Respondent's representative. This is a violation of Florida Administrative Code Rule 28-106.107. In addition, pages eight through 18 of Respondent's Proposed Recommended Order contain documents that were specifically excluded at the hearing, and page 4 argues facts not in evidence. Therefore, Petitioner's motion to strike Respondent's Proposed Recommended Order is granted. However, the entire file, as well as Petitioner's Proposed Recommended Order, has been carefully reviewed in the preparation of this Recommended Order.
Petitioner is responsible for operating the public schools in Pinellas County School District and for hiring, firing, and overseeing both instructional and non-instructional "educational support" employees.
Respondent has been employed by Petitioner as a regular bus driver and educational support employee, since
April 1989.
On the morning of January 15, 2010, Respondent commenced her morning elementary school route by picking up students to transport them to Eisenhower Elementary School. After completing the run to Eisenhower Elementary School, Respondent did not conduct an interior inspection of the bus, as required. As a result, a six-year-old child was left sleeping on the bus after Respondent left the school. While waiting to depart from the school grounds, the bus engine was not turned off, but, rather, it was left to idle.
Respondent was in a hurry to leave Eisenhower Elementary School because she wanted to use the restroom. Although bus drivers are encouraged to use the restroom at the school, and it is considered a "best practice" to do so, Respondent thought she could cut some time off of her run and preferred to drive to the Mobile service station located at the
corner of U.S. 19 North and Route 590 rather than use the restroom at the school.
Once at the Mobile service station, Respondent stopped the bus parallel to Route 590 and went into the store. The restroom was occupied at the time, requiring her to wait. She testified that while she was waiting, she went out to the bus to close a window and then returned to the service station to use the restroom. Throughout this time period, the child was left unattended on the school bus.
The bus was left positioned near a heavily-traveled area of Pinellas County during rush hour traffic, and the bus was left idling.
Respondent denies that the bus was left idling while the child was unattended. Her denial, however, is not credible. If the engine, in fact, had been turned off as she claims, then the Child Reminder System would have caused the horn to blow, which she admits did not occur. According to Respondent, the reason that the horn did not blow when she turned off the engine was because she was "not 100 percent sure that it worked . . . during the run . . . [because she] could have hit a bump or something like that "
Since 2005, all Pinellas County school buses are equipped with a device called a Child Reminder System. It is a safety device intended to enforce the bus driver's obligation to
inspect his or her bus after each run. Once a bus driver turns off the engine, the horn is activated within 10-15 seconds, which forces the bus driver to walk to the back of the bus and hit a latch to de-activate the noise.
Respondent acknowledged that checking the Child Reminder System is required as part of the pre-trip inspection. Respondent did not report any malfunction the morning of January 15, 2010. She stated that the Child Reminder System worked in the morning. In an effort to support her theory that
the Child Reminder System may have been broken by 8:30 a.m. that same morning, Respondent claims that she has "over and over" turned in notes to the transportation department that the Child Reminder System was broken.
The records from the transportation department do not support her claim. Rather, it is unrefuted that her bus--bus number 20909--was a brand new bus and never once, from the beginning of the 2009 school year through January 15, 2010, did Respondent file a request to repair or otherwise provide notification to the transportation maintenance department that the Child Reminder System was not working.
The greater weight of credible evidence finds that Respondent left her bus idling at the school and at the Mobile service station. As a result, the Child Reminder System was
never activated, causing additional danger to the sleeping child who remained undercover on the bus.
After Respondent left the store, Respondent resumed her route and picked up several middle-school students. The sleeping child was discovered by a middle-school student, who notified Respondent. After several minutes, Respondent called the dispatcher to notify her of the situation. Respondent used her cell phone to call the dispatcher. The dispatcher directed Respondent to return to Eisenhower Elementary School with the child.
Respondent denied that she used her cell phone, instead of the two-way radio, in an effort to avoid publicly broadcasting her error over the radio system. Respondent admitted that she is well aware that the use of a cell phone while driving a bus violates School Board policy and Florida law. Respondent stated that the use of her cell phone "would be easier," because the two-way radio was being used by other callers to report an accident. Respondent implied that its use was safe, because she was not actually driving on U.S. 19, but, rather, a service road adjacent to U.S. 19. Respondent subsequently changed her story, stating that she was not driving, but had pulled her bus to the side of the road.
Respondent's rendition of the facts on this point is also not credible. The Digital Video Recorder (DVR) clearly
showed that the bus was moving while Respondent was speaking with dispatch on her cell phone. It is also evident from the DVR recording that the radio transmission was not in use by speakers discussing an accident as claimed by Respondent.
Respondent's employment is governed by the agreement (2008-2011) between the School Board and SEIU/Florida Public Services Union, Local 1220, an affiliate of Service Employee International Union (AFL/CIO) (hereinafter Agreement).
The Pinellas County Transportation Department produces a "School Bus Driver Handbook” (hereinafter "Bus Driver Handbook"), which describes policies and procedures to be followed by all bus drivers. Respondent received a copy of the Bus Driver Handbook and acknowledged that she received and read
it.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has
jurisdiction over the parties and subject matter of this case, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2010), as well as, School Board Policy 4140(D).
The Superintendent of the School Board has the authority to make recommendations for dismissal regarding School Board employees, pursuant to Subsections 1012.40(2)(c) and 1012.27(5) and Section 1001.51, Florida Statutes.
Petitioner has the authority to dismiss School Board employees, pursuant to Subsection 1001.42(5) and Section 1012.22, Florida Statutes.
Petitioner has the burden of proof in this employee dismissal hearing and must meet that burden by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).
A bus driver is an "educational support employee," as defined by Subsections 1012.40(1)(a) and 1012.01(6)(d), Florida Statutes. Pursuant to Subsection 1012.40(2)(b), Florida Statutes, an educational support employee may be terminated for reasons stated in the collective bargaining Agreement.
The Agreement provides, in relevant part, that "upon completion of the probationary period, employees shall continue from year to year, unless the superintendent terminates the employee for "just cause." The provisions of the School Board Policy 8.25 (now 4140) shall define "just cause."
Pinellas County Schools has defined, by School Board Policy 4140, those offenses which constitute "just cause" for discipline, as well as the range of penalties that may be imposed for committing each offense.
The provisions of School Board Policy 4140--Discipline of Support Staff--alleged to have been violated are as follows:
Discipline of Support Staff: 4140(A)(19), "Failure to correct performance deficiencies"; 4140(A)(21), "Conduct unbecoming a Board employee that brings the district disrepute or that disrupts the orderly processes of the District"; and 4140(A)(24), "Failure to comply with Board Policy, State law or appropriate contractual agreement."
part:
Petitioner's Bus Driver Handbook reads, in pertinent
2.02 DUTIES OF THE DRIVER-Upon completion of each run/trip, drivers are required to (sic) the rear of the bus and return up the aisle while checking each seat for seat for sleeping children, forgotten book bags, lost lunches, or any variety of items. Drivers will complete this check of the bus regardless of whether a bus assistant is assigned to the route. (Note: All 2005 and newer buses will be equipped with a "Child Reminder System” (CRS) that will activate an alarm if the proper procedures are not followed in doing a post run-trip check). (Emphasis in original).
Florida Administrative Code Rule 6A-3.0171(3) reads, in pertinent part:
3. Responsibilities of the school bus operator: . . . (z). To perform a complete interior inspection of each bus after each run and trip to ensure no students are left on board.
Petitioner's Bus Driver Handbook reads, in pertinent
part:
7.09 USE OF CELLULAR TELEPHONE--The use of cellular telephones while driving a Pinellas County School bus is STRICTLY PROHIBITED.
Cellular telephones may be used on a school bus only when the bus is parked. (Emphasis in original).
Petitioner's Bus Driver Handbook reads, in pertinent part:
7.11 NO IDLING Policy Energy Conservation and Emissions Reduction
A. No Idling Policy. As of the 2006-2007 school year, PCS has implemented a "no idle policy for all school buses. As a general rule, buses should be moving whenever the engine is on. The engine should be turned off after arriving at loading or unloading areas. The school bus should not be restarted until it is ready to depart. (Emphasis in original)
Petitioner has proved by a preponderance of the evidence that Respondent violated state law as well as School Board policy, specifically in contravention of School Board policy 4140(A)(24) [as follows]: By failing to comply with Board Policy, State law or appropriate contractual agreement.
(A) By failing to conduct an interior inspection, especially for sleeping children, after completing her run to Eisenhower Elementary School. (B) By using a cell phone while the bus was moving to report the presence of a sleeping child on her bus.
(C) By failing to turn off the engine of the bus at Eisenhower Elementary school or at the Mobile service station, thus preventing the Child Reminder System from engaging.
Petitioner has proved by a preponderance of the evidence that Respondent's multiple violations of School Board
policies and procedures clearly "disrupts the orderly processes of the District," and her less than forthright testimony constitutes "conduct unbecoming a Board employee that brings the district disrepute," which violate policy 4140(A)(21), "Conduct unbecoming a Board employee that brings the district disrepute or that disrupts the orderly processes of the District."
Petitioner has established by a preponderance of the evidence that Respondent violated School Board Policy 4140(A)(19), "Failure to correct performance deficiencies." Since May 2007, Respondent has been disciplined on four occasions due to her failure to follow basic expectations. For example, on May 18, 2007, she inappropriately used her cell phone while the bus was in motion, and she received a conference summary. On February 4, 2009, Respondent did not immediately report damage to her bus, and, on that same day, Respondent did not attend a meeting with her supervisor, both of which resulted in conference summaries. On May 15, 2009, she falsified time sheets, resulting in a letter of reprimand.
The range of penalties for the offenses listed in School Board Policy 4140(A)(24), (21), and (19) ranges from caution to dismissal for violation of School Board Policy 4140(A)(24) and (21) and a conference summary to dismissal for School Board Policy 4140(A)(19).
School Board Policy 4140 states that the "School District generally follows a system of progressive discipline" and that "the severity of the problem or employee conduct will determine whether all steps will be followed, or a recommendation will be made for suspension without pay or dismissal."
When there is a range of penalties, School Board Policy 4140(C) provides that the following aggravating or mitigating circumstances will be considered.
The severity of the offense.
Degree of student involvement.
The danger to the public.
The number of repetitions of the offenses and length of time between offenses.
The length of time since the misconduct.
The number of times the employee has been previously disciplined by the district as well as the type of discipline.
The contributions of the employee.
The actual damage, physical or otherwise, caused by the misconduct.
The deterrent effect of the discipline imposed.
Any effort of rehabilitation by the employee.
The actual knowledge of the employee pertaining to the misconduct.
Attempts by the employee to correct or stop the misconduct.
Related misconduct by the employee in other employment including findings of guilt or innocence, discipline imposed and discipline served.
Actual negligence of the employee pertaining to any misconduct.
Pecuniary benefit or self-gain to the employee realized by the misconduct.
Degree of physical and mental harm to a student, co-worker or member of the public.
Length of employment.
Whether the misconduct was motivated by unlawful discrimination.
Any relevant mitigating or aggravating factors under the circumstances.
Employee's Evaluation
In this case, the employee's misconduct was severe.
The consequences of leaving a six-year-old child on a bus could have been tragic. It is certainly foreseeable that the child could have awakened disoriented and stumbled out of the bus into rush-hour traffic, where the Respondent left the engine idling and vehicle unattended, at the Mobile service station. The reason the buses are equipped with the Child Reminder Systems is to protect against the type of harm which could have been caused by Respondent's actions.
School Board Policy 4140C(1), (2) and (4) are implicated and are aggravating factors. Respondent's response
to her obligation to check the bus was cavalier at best. She said that she "usually" checks her bus, but, on this occasion, she did not even get out of her seat. Within seconds after the last student exited, the bus was rolling. She again did not check the bus when she got to the Mobile service station, but had enough time to run out to the bus to close a window. She also took her time in calling dispatch and casually proceeded to violate another policy by using her cell phone when she did call in the initial violation. Respondent did not take responsibility for her violations, but, rather, attempts to rationalize her actions and distort the facts. These actions implicate School Board Policy 4140(C) as aggravating factors.
Respondent's negligence caused the young first-grade student to ride with middle-school students, which is something the district seeks to prevent. The student was a six-year old first-grader of slight stature, and it is very likely that she was frightened waking up on a bus surrounded by older students. School Board Policy 4140(C) is implicated as aggravating factors.
Respondent is a veteran employee who is well aware of policies and procedures, but seems to ignore them when it is convenient. Her recent disciplinary history includes two conference summaries, a letter of concern, and a letter of reprimand.
The OPS administrator testified that the minimum penalty which would be considered for a bus driver leaving a child on a bus unattended would be a suspension. Certainly, if an employee with a clean record receiveD a suspension, a dismissal is appropriate in this case and is not disproportionate to the offense.
