STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs.

THERESA A. VELEZ,

Respondent.

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) Case No. 10-6472

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 24, 2010, in Largo, Florida, and on September 30, 2010, by telephonic conference call before Susan B. Harrell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

For Respondent: Talmadge Andrews, Qualified Representative Shop Steward, PCS

Chapter FPS Union

2536 13th Avenue, South

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Theresa A. Velez (Ms. Velez), violated Pinellas County School Board (School

Board) Policy 4140A(9a), "Failure to perform duties of the position"; School Board Policy 4140A(23), "Failure to comply with Board policy, State law, or appropriate contractual agreement"; and Section 2.02 of the Pinellas County Schools Transportation Department Bus Driver's Handbook (Handbook), and, if so, whether a one-day suspension without pay is warranted.

PRELIMINARY STATEMENT

By letter dated April 19, 2010, the Superintendent of Pinellas County Schools notified Ms. Velez that she was being suspended for one day without pay for violations of School Board Policies 4140A(9a) and 4140(23) and Section 2.02 of the Handbook. Ms. Velez requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on July 28, 2010.

On August 12, 2010, Ms. Velez filed a letter, requesting that Talmadge Andrews, her union representative, be designated as a qualified representative to represent her in this proceeding. By Order dated August 16, 2010, Mr. Andrews was accepted as a qualified representative.

The final hearing was commenced on September 24, 2010, and was reconvened on September 30, 2010.

At the final hearing, the School Board called the following witnesses: Ms. Velez, Wanda Gibson, James McBride, Valencia

Walker, and Joseph Terry Knipp. Petitioner's Exhibits 2 through 11 were admitted in evidence.

At the final hearing, Ms. Velez did not call any witnesses. Respondent's Exhibits 1 through 4, 5A through 5I, 6A through 6C, and 7 were admitted in evidence.

The two-volume Transcript was filed on October 11, 2010. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. The School Board filed its Proposed Recommended Order on October 21, 2010. As of the date of this Recommended Order, Ms. Velez had not filed any post-hearing submittal.

FINDINGS OF FACT

1. On January 18, 2000, Ms. Velez became a full-time bus driver for the School Board. In the 2009-2010 school year, she was a relief driver. As a relief driver, Ms. Velez would take the routes of other bus drivers, who were off from work or sick, or when there was a bus breakdown. She was paid 85 cents more per hour than the regular drivers.

2. On February 22, 2010, she was driving Route 622. The bus driver position for that route was vacant,1 and Ms. Velez and other relief drivers would drive the route when assigned to do so. Route 622 leaves from Clearwater Intermediate after

   4:00 p.m., when the students are released from the school. Each of the buses is equipped with a video camera that records the

   
   

   activity on the bus during the route. On February 22, 2010, a video camera recorded the activity on the bus that Ms. Velez was driving.

3. Ms. Velez had had problems with some of the students when she had driven Route 622 before. On February 22, 2010, she asked an assistant principal at Clearwater Intermediate to come on the bus and have some of the children change their seats because some of the children who sat in the back of the bus were mischievous.2 Ms. Velez wanted some students moved on the bus so that they would not be sitting near their friends and engaging in mischief.

4. She told the assistant principal that she felt that some of the students were unsafe to drive. The basis for this comment was her previous experience with the bus route, when the children were hanging out the windows, opening the windows even with the air-conditioning on, and screaming.

5. The assistant principal told Ms. Velez that she had requested a seating chart and told Ms. Velez to pull over on the grass. She did not request a seating chart from Ms. Velez.

   When the assistant principal came on the bus, she was carrying a sheet of paper, and Ms. Velez had a sheet of paper. Based on the assistant principal's earlier statement that she had requested a seating chart, it is inferred that she did get a seating chart. It should be noted that a seating chart would

   
   

   have not been necessary to accomplish Ms. Velez's request that students exchange seating. All she had to do was to identify the students who had misbehaved in the past and tell the assistant principal.

6. The assistant principal did move some students. One student argued with the assistant principal. The assistant principal told the student to get off the bus because she was suspending him from the bus. The student essentially ignored the order, and the assistant principal did not follow-up on the disciplinary measure of suspending the student from the bus.

7. After Ms. Velez left the school, she pulled the bus over and stopped two times because the students were eating on the bus. The students were asked to stop eating before she pulled over, but the students ignored her. One student in particular was involved in both incidents of eating on the bus, and she appeared to be egging on the driver. The last time a package of food was taken from her, the student talked back to Ms. Velez using curse words. Eating on the bus is considered a minor offense.

8. The Pinellas County Schools' Code of Student Conduct includes special rules concerning students' conduct while riding the school bus. The rules require that students remain seated at all times and prohibit students from distracting the driver with loud conversation or noises, eating or drinking on the bus,

   
   

   and using obscene language or gestures. All of these rules were violated by some of the students on the bus on Route 622 on the afternoon of February 22, 2010. One of the students called

   Ms. Velez a bitch. One student who was seated two seats back from the bus driver had headphones and was singing loudly during most of the bus ride, frequently using profanity. Her singing was loud enough to be distracting. Other students were holding what appeared to be packages of food up so that Ms. Velez could see them through the rearview mirror. Some school officials consider that the noise level of the students on the bus was not out of the ordinary. While the noise level may be considered normal for middle-school students, it should not be tolerated.

   Nor should the use of profanity and the lack of respect by the students be tolerated.

9. Ms. Velez pulled the bus over a third time. Two of the students pulled down windows on the air-conditioned bus.

   Ms. Velez warned the students to pull up the windows before she stopped the bus. One student did pull the window back up and then pulled it back down after the bus was stopped. The other student did not pull the window up until after the bus was stopped, and Mr. Velez had asked her several times to close the window. One of the students told Ms. Velez that another student was having an asthma attack.

   
   

10. Ms. Velez called dispatch to see if she could get some assistance for the student who had asthma. Ms. Velez stated at the final hearing that she was unable to reach dispatch; however, the video does record a response from dispatch. It is unlikely with the amount of noise that was going on at the time of the response and Ms. Velez yelling at the students to close the windows that she heard the response.

11. Ms. Velez claims that students were throwing nickels at her before she pulled the bus over; however, the video recording does not show any students throwing anything at her.

12. Instead of pulling to the right side of the road the third time that she stopped, Ms. Velez pulled the bus into a left-turn lane, which was the center lane of the road. At the time, she felt that was the safest place to stop and that she could not continue to safely drive with the conditions caused by the students' behavior. She had been in the left lane of a four-lane road when she turned into the center-turn lane. She could not go to the right. However, she could have turned into parking lots that were on the left side of the road.

13. Pulling into the center turn lane did put the safety of the students at issue because the students could not safely depart from the bus, if necessary, because there was traffic on both sides of the bus.

    
    

14. The School Board claims that Ms. Velez left the school bus idling while she left her seat and attempted to get the students to comply with her directives. It could not be determined from the video that the bus was idling, when she stopped the bus, and there was no direct testimony from anyone present when the bus stopped that the bus was idling.

15. While the bus was pulled in the center lane, Ms. Velez attempted to get the students to close the windows. Some of the students were shouting at Ms. Velez, using profanity. Ms. Velez called dispatch and advised that the students were out of control.

16. Ms. Velez used her cellular telephone to contact dispatch and advised them that she was in the center lane on West Bay and that the students were out of control. She requested that the police be notified and advised that she was going to pull over to 20th Street, which is a side road off West

    Bay.

    
    

17. When she stopped at 20th Street, she advised dispatch

    
    

    that she was southbound on 20th Street. While stopped at 20th Street, the students' behavior did not improve until the police arrived. Some of the students moved to the front of the bus, pushing and demanding to be let out. At least four of the students pushed the bus door open and left the bus.

    
    

18. If a bus driver feels that a student is guilty of misconduct on the school bus, the driver is to make a report of misconduct, which is commonly known as a referral. The referral states: "Any misbehavior which distracts the driver is a very serious hazard to the safe operation of the bus and jeopardizes the safety of the passengers." Types of misconduct are listed on the referral and include refusal to obey driver; eating/drinking/chewing gum; too noisy; and profanity.

    Ms. Velez did not make any referrals as a result of the incidents on February 22, 2010. She was under the impression that some of the students had been suspended from the bus; however, none of the students had been disciplined by the school. Clips of the video were sent to the school's administration, but no action was taken against the students.

19. Section 9.02 of Handbook provides:

    
    

    9.02 DRIVER GUIDELINES FOR HANDLING STUDENTS

    
    

    Drivers are required by Florida Statute and Rules of the State Board of Education to maintain order and safe behavior by the students on the school bus. Rules for student conduct on the school buses are set forth in the School Board's Student Code of Conduct.

    
    

    1. Assign seating for the entire bus. Assigning seats for all riders can help a driver learn student names more rapidly, set a tone of behavioral control, and turn student seating into a familiar routing rather than a daily free-for-all. At the

       
       

       start of the year, create a seating chart for the bus. The suggested procedure for arranging seating is to load window to aisle or back to front according to stops. An accurate seating chart is required to be maintained at all times. A copy of the seating chart is required to be maintained at all times. A copy of the seating chart will be given to the school Field Operations Supervisor, and a copy will be left on the bus.

       
       

    2. Drivers will make every reasonable effort to deal with infractions of the rules of student conduct. If a driver overlooks the misbehavior of the student(s) in their care, they will lose the respect of the well-behaved students.

       
       

    3. In cases of minor infractions, the driver should warn the student(s) involved without stopping the bus, if possible.

       
       

    4. Drivers will, if at all possible, stop the bus if the behavior problem is a serious one. Change the students' seats when possible to de-escalate the situation. Drivers will immediately contact the dispatch office for their assigned area via two-way radio and provide them with details of the situation. If there is a physical confrontation between two or more students, drivers may take all reasonable measures necessary to separate the students involved in the confrontation to preserve the safety and prevent injury.

       
       

    5. Except in situations of an extremely unusual or serious nature, drivers will not park buses on the side of the road for an extended period of time. Such action should be limited to no more than five (5) minutes in duration. The driver will not return a group of students to a school in the afternoon after reaching a point of approximately one-half (1/2) the distance between the school and the last stop on the

    
    

    trip. It is acceptable to pull into a nearby school for assistance; provided dispatch has been contacted and the school is notified. If you do have to return to a school, contact dispatch so they can call the school and arrange for an administrator to meet the bus. The driver is required to obtain the names of students leaving the bus. The driver will notify the Field Operations Supervisor and dispatch upon returning to the compound that the students have been removed from the bus.

    
    

20. Section 2.02B of the Handbook states: "Drivers will possess the appropriate Commercial Driver's License at all times while employed by the Pinellas County Schools and will maintain their license in good standing." Section 10.5.2 of the 2010 "Official Florida CDL Handbook" provides:

    10.5.2 Handling Serious Problems Tips on handling serious problems:

    • Follow your school's procedures for discipline or refusal of rights to ride the bus

      
      

    • Stop the bus. Park in a safe location off the road, perhaps a parking lot or a driveway.

      
      

    • Secure the bus. Take the ignition key with you if you leave your seat.

      
      

    • Stand up and speak respectfully to the offender or offenders. Speak in a courteous manner with a firm voice. Remind the offender of the expected behavior. Do not show anger, but do show that you mean business.

      
      

    • If a change of seating is needed, request that the student move to a seat near you.

      
      

    • Never put a student off the bus except at school or at his or her designated school bus stop. If you feel that the offense is serious enough that you cannot safely drive the bus, call for a school administrator or the police to come and remove the student. Always follow your state and local procedures for requesting assistance.

      
      

21. Prior to February 22, 2010, Ms. Velez was aware that she should not stop the bus in the middle of the road when she needed to correct student misconduct. In 2003, she had acknowledged to the compound supervisor for the Pinellas County Schools Transportation Department that the appropriate course of action in dealing with student misconduct would be to pull over to the side of the road.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).

23. Ms. Velez 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 (2009).3 The Superintendent of Pinellas County Schools 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.

24. The School Board has alleged that Ms. Velez has violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02A of the Handbook. The School Board has the burden of establishing the allegations by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996).

25. School Board Policy 4140A(9a) provides that an employee may be disciplined for "Failure to perform the duties of the position," and School Board Policy 4140A(23) provides that an employee may be disciplined for "Failure to comply with Board policy, State law, or appropriate contractual agreement." The discipline for both offenses ranges from caution to dismissal. Section 2.02A of the Handbook provides: "Drivers will at all times operate their buses in accordance with the requirements of the Florida Traffic Laws, the requirements of the State Board of Education and procedures detailed in this handbook."

26. As the basis for the alleged violations, the School Board has alleged:

    Ms. Velez failed to practice safe driving techniques while transporting students on the school bus. . . . On February 22, 2010, Ms. Velez walked to the back of the bus, leaving the school bus idling and the

    
    

    controls unattended to address student misbehavior. Additionally, Ms. Velez stopped the bus in the center lane of three

    (3) lane highway to address disruptive students while traffic was moving on both sides of the bus.

    
    

27. Florida traffic laws prohibit a driver from crossing the left center line of roadway except to turn left. Subsection 316.081(3), Florida Statutes, provides:

    Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle shall be driven to the left of the centerline of the roadway, except when authorized by official traffic control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under paragraph (1)(b). However, this subsection shall not be construed as prohibiting the crossing of the centerline in making a left turn into or from an alley, private road, or driveway.

    
    

28. The School Board has established by a preponderance of the evidence that Ms. Velez did violate School Board Policies 4140A(9a) and 4140A(23) and Section 2.02A of the Handbook. She stopped the bus in the center turning lane of a four-lane street, when she could have pulled into a parking lot. The center turning lane is for turning, not parking the bus. By doing so, she disregarded the safety of the students aboard.

29. There are extenuating circumstances in this case, mainly the behavior of the students on the bus. The behavior of the students was inexcusable. Although the School Board

contends that the bus driver must maintain control of the students while they are on the bus, it is difficult to do so while a driver is driving. Obviously, in the instant case, verbal warnings by the driver had no effect on the students. However, the conduct of the students does not relieve Ms. Velez of the responsibility to stop the bus in a safe place such as on the side of the road or in a parking lot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Velez violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02 of the Handbook and suspending her for one day without pay.

DONE AND ENTERED this 14th day of December, 2010, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010.

ENDNOTES

1/ The driver who had the route had moved to another route, and no other driver had bid to take Route 622.

2/ Many of the students who attend Clearwater Intermediate are attending Clearwater Intermediate because they have discipline issues and may have some academic issues.

3/ Unless otherwise indicated, all references to the Florida Statutes are to the 2009 version.

COPIES FURNISHED:

Laurie A. Dart, Esquire Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

Talmadge Andrews Shop Steward, PCS Chapter FPS Union

2536 13th Avenue, South

St. Petersburg, Florida 33712

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Julie M. Janssen, Superintendent Pinellas County School Board

Post Office Box 2942 Largo, Florida 33779-2942

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: 10-006472TTS

Orders for Case No: 10-006472TTS